CW/8418/2014 of SOHAN LAL KALASUA and ORS Vs STATE and ORS. on 19 December 2014

ORDER

(Reportable)BY THE COURT (Per Hon'ble Sunil Ambwani, Actg.CJ)

1. We have heard learned counsel appearing forpetitioners, learned Advocate General for the State ofRajasthan and learned counsel appearing for the RajasthanState Election Commission.

2. All the above numbered writ petitions with D.B.Civil Writ Petition No.8157/2014 (Mushe Khan & anr. V/s State ofRajasthan & ors.) as leading writ petition were filed beforelearned Single Judge challenging the Notification dated5.11.2014 issued under the signatures of the Commissionerand Secretary, Gramin Vikas and Panchayati Raj (PanchayatiRaj Department), Government of Rajasthan, Jaipur, by whichthe State Government had notified the alteration in the limitsof Panchayats for which the concerned District Collectorswere authorized under the Notification dated 2.6.2014 inexercise of the powers under section 98 of the RajasthanPanchayati Raj Act, 1994 (for short, “the Act of 1994”) forreconstitution, de-limitation and creation of villagePanchayats and Panchayat Samitis under sections 9, 10 and101 of the Act of 1994. The District Collectors wereauthorized under sections 9, 10 and 101 of the Act of 1994 toexamine the proposals and recommendations and to get themapproved from the Divisional Commissioners beforeforwarding them to the State Government. In pursuance tothe exercise carried out by the Districts Collectors under the powers vested in them by Notification dated 2.6.2014, theyhad by the impugned Notification dated 5.11.2014,reconstituted, de-limited and created the Panchayats in theSchedule given in the Notifications, giving the names of suchre-constituted, delimited and newly created Panchayats incolumn no.4, giving the names of the villages included in suchvillage Panchayats in Column no.5, with directions tocomplete the election process within six months and withfurther directions that after the elections are held, thosePanchayats, which are named in column no.2 will stopfunctioning and the village Panchayats named in column no.4,will start functioning.

3. In some of the writ petitions, learned Single Judgepassed an interim order as follows:-passed an interim order as follows:- “In the meanwhile and until the next date, theState Government shall not finalise and notify thedivisionofwards/constituenciesofre-constituted/newly created Gram Panchayats andPanchayat Samities in question pursuant to theimpugned Notification No.एफ.15(1) प नर ठन/व ध /पर व /2014/1473 जयप र, dated 05.11.2014.”

4. During the course of hearing before learned SingleJudge, he examined the question as to whether theNotificationissuedbytheStateGovernmentconstituting/reconstituting and de-limiting Panchayat Circlesin exercise of the powers conferred under sections 9, 10 and

101 of the Act of 1994 is legislative in character and if it isso, whether the present matters are cognizable by SingleBench or the same are required to be referred to the DivisionBench, in pursuance of the general order passed by the thenHon'ble Chief Justice on 28.2.2011, which had specified thatthe cases challenging the vires of any Act or statute or anyorder or Rule or regulation made under any Act or statute,shall be heard by the Division Bench. By another order dated18.3.2011 issued by the then Hon'ble Chief Justice, it wasclarified that “any order” appearing in the order dated28.2.2011 relates to “any order of legislative nature”.

5. After hearing the parties, learned Single Judge held thatin view of the decisions of the Supreme Court in TulsipurSugar Co.Ld. V/s The Notified Area Committee, Tulsipur(AIR 1980 SC 882) & Sunderjas Kanyallal Bhathija & Ors. V/sThe Collector, Thane, Maharashtra & Ors.(AIR 1990 SC 261)and the judgment of this Court in M/s J.K.Synthetics Ltd.V/s Municipal Board, Nimbahera & Anr.(RLR 1989)2 589),the powers exercised by the State Government under section4 of the Rajasthan Municipalities Act, 1950 are legislative innature. The judgment in J.K.Synethetics Limited's case(supra) was followed in Gram Panchayat, Akarbhata & ors.V/s The State of Rajasthan & Ors.((1992(2) WLN 37) and ModSingh V/s State of Rajsthan & anr.(S.B.Civil Writ PetitionNo.6132/92) decided on 23.12.1994 and consequently,learned Single Judge held that the present matters are required to be heard by the Division Bench of this Court. Heissued directions to the Registry to place the matters beforethe Division Bench on 11.12.2014, as prayed by learnedcounsel appearing for the parties.

6. All the matters, considering the urgency, in whichelections are imminent, pleaded by learned counsel appearingfor the respondents, were heard on 11.12.2014. We wereinformed that almost on same questions, a bunch of writpetitions were filed in Jaipur Bench of this Court and theDivision Bench has heard the matters and judgment wasreserved. There is no interim order passed by the DivisionBench of this Court at Jaipur Bench.

7. After hearing learned counsel appearing for thepetitioners, learned Advocate General appearing for the Stateof Rajasthan and learned counsel appearing for the RajasthanElection Commission, we had vacated the interim orderspassed by learned Single Judge directing not to finalize andnotify the division of wards/constituencies of re-constituted/newly created Gram Panchayats and PanchayatSamities in question vide impugned Notification dated5.11.2014, on the ground that five years' term of the villagePanchayats prescribed under Article 243E of the Constitution ofIndia, is coming to an end in the State of Rajasthan on 23[rd]January, 2015. Learned counsel appearing for the Rajasthan StateElection Commission stated that there is very short time left tocomplete the statutory process of preparing electoral rolls, issuing

notifications and fixing dates giving minimum prescribed period fornominations and for dates of polling for holding elections.Considering the objections of the Rajasthan State ElectionCommission and learned Advocate General that the elections areimminent and in view of Article 243-O included in Part-IX of theConstitution of India, which has been incorporated by amendmentas Section 117 of the Act of 1994 and subsequently, by insertingSection 117A by Notification dated 26.4.1995 barring thejurisdiction of the Civil Court, there was no justification tocontinue the interim orders.

8. Since learned counsel appearing for the petitioners andlearned Advocate General as well as learned counsel appearing forthe Rajasthan State Election Commission had argued the mattersat length on merits, we had reserved the judgment on 11.12.2014to be pronounced at an early date.

9. We are informed that on 18[th] December, 2014, a DivisionBench of this Court at Jaipur (Hon'ble Mr.Justice Ajay Rastogi andHon'ble Mr.Justice J.K.Ranka) has pronounced the judgment insimilar matters inBhupendra Pratap Singh Rathore V/s State ofRajasthan & Ors.(D.B.Civil Writ Petition No.12960/2014 and other93 connected writ petitions), which was reserved by them on 9[th]December, 2014. The Division Bench at Jaipur has upheld thepreliminary objections raised by the respondents, to the effectthat keeping in view the mandate of Article 243-O(a) of theConstitution of India read with Section 117 of the Act of 1994, oncethe Notification of de-limitation of constituencies dated 5.11.2014

has been published in the Official Gazettee under Section 101 ofthe Act of 1994, it has got the force of law and going by the effectof Article 243-O(a), the interference by the Courts in respect ofde-limitation of constituencies is barred. The Division Bench atJaipur relied on the judgments of the Apex Court in MeghrajKothari V/s Delimitation Commission & Ors. (AIR 1967 SC 669) andState of U.P. & Ors. V/s Pradhan Sangh Khesttra Samiti & Ors.

(1995 Suppl.(2) SCC 305).

10. In State of U.P. & Ors. V/s Pradhan Sangh Khesttra Samiti &Ors. (supra), the Supreme Court held in paragraph 46 as follows:

“46. What is more objectionable in the approach of the HighCourt is that although Clause (a) of Article 243-O of theConstitution enacts a bar on the interference by the courts inelectoral matters including the questioning of the validity ofany law relating to the delimitation of the constituencies orthe allotment of seats to such constituencies made orpurported to be made under Article 243-K and the election toany panchayat, the High Court has gone into the question ofthe validity of the delimitation of the constituencies and alsothe allotment of seats to them. We may, in the connection,refer to a decision of this Court in Maghraj Kothari Vs.Delimitation Commission & Ors. In that case, a notificationof the Delimitation Commission whereby a city which hadbeen a general constituency was notified as reserved for theScheduled Castes. This was challenged on the ground thatthe petitioner had a right to be a candidate for Parliamentfrom the said constituency which had been taken away. ThisCourt held that the impugned notification was a lawrelating to the delimitation of the constituencies or theallotment of seats to such constituencies made underArticle 327 of the Constitution, and that an examination ofSections 8 and 9 of the delimitation Commission Actshowed that the matters therein dealt with were notsubject to the scrutiny of any court of law. There was avery good reason for such a provision because if the ordersmade under Sections 8 and 9 were not to be treated asfinal, the result would be that any voter, if he so wished,could hold up an election indefinitely by questioning thedelimitation of the constituencies from court to court.

Although an order under Section 8 or 9 of the DelimitationCommission Act and published under Section 10(1) of thatAct is not part of an Act of Parliament, its effect is the same.Section 10(4) of that Act puts such an order in the sameposition as a law made by the Parliament itself which couldonly be made by it under Article 327. If we read Articles 243-C, 243-K and 243-O in place of Article 327 and Sections 2(kk),11F and 12-BB of the Act in place of Sections 8 and 9 of theDelimitation Act, 1950, it will be obvious that neither thedelimitation of the panchayat area nor of the constituenciesin the said areas and the allotments of seats to theconstituencies could have been challenged or the Court couldhave entertained such challenge except on the ground thatbefore the delimitation, no objections were invited and nohearing was given. Even this challenge could not have beenentertained after the notification for holding the electionswas issued. The High Court not only entertained thechallenge but has also gone into the merits of the allegedgrievances although the challenge was made after thenotification for the election was issued on 31st August,1994.”

11. The Division Bench at Jaipur in Bhupendra Pratap SinghRathore V/s State of Rajasthan & Ors.(supra) has held as follows:- “Keeping in view the law laid down by the Apex Court, in ourconsidered view, the gazette notification dt.05.11.2014relating to delimitation of Panchayat area; or formation ofconstituencies in the said area; or allotments of seats to theconstituencies is a legislative act in nature and could neitherbe challenged nor the court can entertain such challenge andin view of the law declared by the Apex Court, prohibitingcourts to entertain challenge in view of Art.243-C, 243-K and243-O in respect of the above aspects, raised by thepetitioners pertaining to constitution/ reconstitution/delimitation of Panchayat areas under the gazettenotification dt.05.11.2014 cannot be entertained by thiscourt u/Art.226 of the Constitution and the objection andcontentions canvassed by the petitioners in view of Art.243-C, 243-K read with 243-O coupled with law declared by theApex Court, is wholly devoid of substance.

So far as the objection raised by counsel for petitionerthat in the judgment cited by the Apex Court, as there was aclear prohibition of S.10(2) of the Delimitation Act, the writpetitions are maintainable as the Delimitation Act is not applicable in the facts & circumstances of the instant case.The objections raised is of no substance for the reason thatunder 73rd amendment to the Constitution, whileintroducing Part-IX bar to interference by courts in electoralmatters u/Art.243-O(a) and corresponding amendmentsmade in the Rajasthan Panchayati Raj Act, 1994 whilefunctioning for delimitation/alteration of the Panchayati RajInstitutions are regulated in terms of S.101 of the Act, 1994and at the same time, there is a bar to interference bycourts in the matters relating to delimitation ofconstituencies and wards u/S.117 of the Act,1994 and thatbeing so, the principles laid down by the Apex Court areapplicable in the facts & circumstances of the instant caseand the gazette notification dt.05.11.2014 being a legislativeact in nature and keeping in view the bar to interference inthe matters relating to the delimitation of the constituenciesu/Art.243-O(a) of the Constitution and so also S.117 of theAct, 1994, the submission made by the petitioner suffers lackof merit.

Conclusion

In our considered view, we find substance in thepreliminary objections raised by the respondents whichdeserve worth acceptance and keeping in view the mandateof Art.243-O(a) of the Constitution read with S.117 of theAct, 1994, once a notification of delimitation ofconstituencies dt.05.11.2014 has been published in theofficial gazette u/S.101 of the Act, 1994, it has got the forceof law and going by the effect of Art.243-O(a), interferenceby courts in respect of delimitation of constituencies isbarred. Such is the importance of the said notification andthe non-obstante clause therein is important and becomeoperative.

Consequently, all the writ petitions lack merit andbeing not maintainable accordingly stand dismissed. Nocosts.”

12. In all the cases before us, as in the writ petitions before the Division Bench at Jaipur, the draft proposals for de-limitation wereissued and objections were invited. The period of objections wasreduced in view of urgency to complete the election processbefore 23[rd] January, 2015. In some of the cases, allegations havebeen made that the guidelines for minimum and maximum population and the distance for the proposed headquarter havebeen violated. In some of the cases, it is stated that the objectionswere not considered. However, in none of the cases, it is statedthat the objections were not invited or that the objections werenot submitted and that no hearing was given.

13. We are in respectful agreement with the reasoning given inthe judgment of the Division Bench of this Court at Jaipur inBhupendra Pratap Singh Rathore V/s State of Rajasthan & Ors.(supra) and arrive at the same findings that the mandate of Article243-O(a) of the Constitution of India read with Section 117 of theAct of 1994, creates a bar on the interference by the Courts inrespect of de-limitation of constituencies.

14. All the writ petitions are consequently dismissed.

15. In view of the above, the Special Appeal filed by the State ofRajasthan has become infrcutuous and it stands disposed of.

16. A copy of this order will be placed in all the connectedcases.

(PRAKASH GUPTA), J.

(SUNIL AMBWANI),Actg.CJ.

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