Gujarat High Court
Vikram Kanjibhai Chhanga vs State Of Gujarat & 3 on 29 December, 2016
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/SCA/16593/2016 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16593 of 2016
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VIKRAM KANJIBHAI CHHANGA....Petitioner(s) Versus STATE OF GUJARAT & 3....Respondent(s) ========================================================== Appearance:
MR BM MANGUKIYA, ADVOCATE for the Petitioner(s) No. 1 MS BELA A PRAJAPATI, ADVOCATE for the Petitioner(s) No. 1 MS MANISHA LAVKUMAR, GP for the Respondent(s) No. 1 MS ROOPAL R PATEL, ADVOCATE for the Respondent(s) No. 3 NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2 , 4 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date :29/12/2016 CAV ORDER (PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. The present petition is filed under Article 226 of the Constitution of India, wherein the petitioner has challenged the action of the respondent authority of allotting the seat of Sarpanch of village Kotda to the reserved candidate of Scheduled Tribe where there is not a single voter of Scheduled Tribe in the said Village Panchayat. Petitioner has also challenged the vires of Rule 6 of the Gujarat Village Panchayat Election of Sarpanch (Manner of Allotment of Reserved Offices of Sarpanch By Rotation) Rules, 1994 (hereinafter referred to as the 'Rules of 1994') as the same is ultra vires to Part IX of the Constitution of India.
Petitioner has prayed that the respondents be Page 1 of 57 HC-NIC Page 1 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER directed to re-arrange the roaster for the vacant post of Sarpanch in village Kotda in accordance with the requirement of Section 51 of the Gujarat Panchayat Act, 1993 (hereinafter referred to as the 'Act' for short) and the Rules framed thereunder.
2. The facts relevant for deciding the issue involved in this petition are as under:
2.1. The case of the petitioner is that he is a Sarpanch of village Kotda, Taluka Anjar, District Kachchh and he was elected as a Sarpanch in General Election of the Gram Panchayat held in the year 2011. The Gram Panchayats are required to be constituted as provided in Section 5 of the Act. That sub-section (5) of Section 9 of the Act provides for reservation of the Scheduled Caste and Scheduled Tribes and Socially and Educationally Backward Class community in the Village Panchayat, whereas sub-section (2) of Section 51 provides for reservation for the post of Sarpanch. The said reservation shall be in proportion to the population of such reserved community.
2.2. It is further the case of the petitioner that the State Government in exercise of the powers conferred upon it, framed the Rules viz. Gujarat Village Panchayat Election of Sarpanch Rules.
Rule 3 of the said Rules provides for assignment of serial numbers to Village Panchayat and Taluka Panchayat. The serial numbers are to be assigned Page 2 of 57 HC-NIC Page 2 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER on the basis of the names of the village and after assignment, the villages are to be arranged as per English alphabetical orders. Rule 4 of the said Rules provides for reservation of the office of Sarpanch of Village Panchayat in the State for Scheduled Caste, Scheduled Tribes and Socially and Educationally Backward Class. Rule 6 provides for the reserved post for Sarpanch for Scheduled Tribe. It is the case of the petitioner that the controversy in the present petition is with regard to the reservation for Scheduled Tribe provided under Rule 6 of the Rules of 1994. As per the Rules, the village which has the highest population of Scheduled Tribe shall be arranged top of the list at serial number 1 and thereafter the villages are to be arranged descendantly proportion to their population of ST and such villages shall be numbered as ST.1, ST.2 and so on.
2.3. It is the grievance of the petitioner that respondents have rearranged the rotation by amending the Rules and respondent No.4 in exercise of powers conferred upon him, declared the reservation by notification dated 22.12.2015. The Collector reserved the post of Sarpanch of village Kotda for Scheduled Tribe community. It is stated that census was carried out in the year 2011 and as per the census of 2011, 223 persons of Scheduled Tribes shown to have resided in the said village. It is stated that when the census was carried out, labourers were residing in the Page 3 of 57 HC-NIC Page 3 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER village. However, thereafter they left the village and as on date not a single person of Scheduled Tribe community is residing in village Kotda.
2.4. It is further stated that respondent No.4, vide notification dated 19.03.2015 fixed the reservation ward-wise of Village Panchayat Kotda. Ward No.7 is reserved for Scheduled Tribe community. Petitioner, therefore, made representations to the various authorities and pointed out the aforesaid aspect that there is no voter of Scheduled Tribe community in the village. Petitioner has placed on record the correspondence made between the Governmental authorities in support of his contention that even Talati-cum-Mantri has issued the certificate and the Collector and District Election Officer has also informed the Secretary of State Election Commissioner about the aforesaid aspect. Petitioner has, therefore, filed the present petition contending that when the rotation came to be fixed as per the Rules of 1994, the population has been considered on the basis of the last census. However, actual population is not looked into and therefore literal meaning of the said Rule renders the Constitutional provision absurd and creates a chaotic situation.
3. Heard learned advocate Mr.B.M.Mangukiya for the petitioner and learned Government Pleader Ms. Manisha Lavkumar for the respondent - State.
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4. Learned advocate Mr. Mangukiya submitted that when the census was carried out in the year 2011, 223 voters of Scheduled Tribe community were shown in village Kotda. On the basis of the said population of Scheduled Tribe persons the respondent authorities have reserved the seat of Sarpanch for Scheduled Tribe community for Village Panchayat, Kotda as per Rule 6 of the Rules of 1994. However, before the election programme of 2016 has been declared for the Village Panchayat, it was found that there is not a single person of Scheduled Tribe community residing in village Kotda. It is submitted that therefore representations were made to various Government Authorities and Panchayat has also passed the resolution pointing out aforesaid aspect and requested the Collector and District Election Officer to consider the post of Sarpanch of village Kotda as unreserved. Learned advocate Mr. Mangukiya has referred to the various documents which are produced with the petition in support of his submission and more particularly referred the communication dated 13.04.2016 addressed by Mamlatdar, Anjar to District Election Commissioner and Collector, Bhuj-Kachchh wherein there is a specific mention that when Talati, Kotda has verified no person of Scheduled Tribe community was found in the village. Learned advocate Mr. Mangukiya thereafter referred to the letter dated 16.04.2016 addressed by District Election Officer and Collector to Secretary of Page 5 of 57 HC-NIC Page 5 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER State Election Commission wherein also the District Election Officer has mentioned the aforesaid aspect. It is, therefore, submitted that when not a single person of Scheduled Tribe community is residing in the village, there is no reason to reserve the post of Sarpanch for Scheduled Tribe community. Learned advocate Mr. Mangukiya thereafter referred to the provisions contained in Rule 6 of the Rules of 1994 and submitted that the said Rule provides for the determination of special members for reservations for the post of Sarpanch. The said Rules provide that the villages shall be serially arranged in accordance with the percentage of the population of Schedule Tribe and therefore in exercise of powers under Rule 6 of the Rules of 1994, the State Government arranged special serial number and fixed the rotation. However, at the time when the rotations came to be fixed, the population has been considered on the basis of the last census i.e. of 2011. However, the actual population at the time of fixing the reservation and issuing the notification has not been considered by the respondent authorities. It is submitted that if there is no member of Scheduled Tribe community, the post of Sarpanch would remain vacant. Therefore, the word 'population' defined in the Act of 1993 and the Constitution of India are required to be considered in light of the fact situation. It is further submitted that the principle of Golden rule of Page 6 of 57 HC-NIC Page 6 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER interpretations cannot be pressed into service when the situation results into nothing but absurdity. Learned counsel would contend that the Constitutional mandate as provided in Part IX of the Constitution of India and more particularly Article 243D of the Constitution is that in each Taluka there shall be reservation of Scheduled Tribe proportionate to the population of the said Tribe and therefore to implement the said command the reservation is provided for in the Rules. However, when the reservation is provided for and it turns out to be a mere paper reservation and leads to an absurdity, inasmuch as, in absence of any voter of the said community in the village, that reservation would be imaginary and illusory. Therefore, at the time when the reservation is to be provided for, the strict adherence to the term 'population' defined in the Constitution of India cannot be adhered to. Once there is a mandate to provide for reservation, that mandate cannot be nullified by a literal construction and interpretation of the term 'population' so as to render it self-contradictory. It is, therefore, contended that Rule 6 of the Rules of 1994 be held ultra vires to part IX of the Constitution of India.
5. Learned advocate Mr. Mangukiya thereafter referred to the provisions contained in Section 51(3) of the Act and submitted that roaster fixed by the Collector is ex-facie illegal and ultra vires to the said provisions.
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6. Learned advocate Mr. Mangukiya has placed
reliance upon the following decisions in support of his submissions:
1. Decision rendered by the Hon'ble Supreme Court in the case of Spentex Industries Limited v. Commissioner of Central Excise & Ors., reported in (2016) 1 SCC 780.
2. Decision rendered by the Hon'ble Supreme Court in the case of Bengal Immuulty Co. Ltd. v. State of Bihar & Ors., reported in AIR 1955 SC 661
3. Decision of the Hon'ble Supreme Court rendered in the case of Tinsukhia Electric Supply Co.Ltd. v. State of Assam & Ors., reported in (1989) 3 SCC 709.
4. Decision of Hon'ble Supreme Court in the case of Sarah Mathew v. Institute of Cardio Vascular Diseases, reported in (2014) 2 SCC 62.
5. Decision of Hon'ble Supreme Court in the case of R.M.D. Chamarbaugwalla and Anr. v. Union of India & Anr., reported in AIR 1957 SC 628.
6. Decision of Hon'ble Supreme Court in the case of His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr., reported in (1973) 4 SCC 225.
7. On the other hand, learned Government Pleader Ms. Manisha Lavkumar submitted that as per Rules of 1994, Taluka Anjar is to be considered as a unit and on the basis of the population of the vacancies of reserved categories, the rotation of Page 8 of 57 HC-NIC Page 8 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER offices of Sarpanch is to be determined. Taluka Anjar is situated in District Kachchh and comprises of 53 Gram Panchayats. After following the provisions contained in Rules 4 to 7 of Rules of 1994, the post of Sarpanch of village Kotda was reserved for Scheduled Tribe category candidate. Learned Government Pleader referred to the said provisions and contended that total strength of Scheduled Caste, Scheduled Tribe and SEBC in the Taluka is required to be determined.
Thereafter, on the basis of the said determination, a list of village Panchayat is to be prepared ranging from the highest to the lowest population of Scheduled Caste and Scheduled Tribe in those Talukas. Two lists would be prepared in a hierarchical manner commencing with the village panchayat having highest percentage of Scheduled Caste and Scheduled Tribe. Each of these village panchayats would be assigned special members. It is contended that there are three lists. First is the list for all the village panchayats in the Taluka bearing general serial number, second is the list of all the village panchayats arranged in descending order commencing with the highest percentage of population of Scheduled Caste which have been assigned special numbers and the third is a list of village panchayat assigned special numbers arranged in a hierarchical manner commencing with the village panchayat having highest percentage of population of Scheduled Tribe. Learned Page 9 of 57 HC-NIC Page 9 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER Government Pleader referred to the averments made in para 8 of the affidavit-in-reply filed by the Collector, Kachchh and pointed out that allotment of seats for 2016 elections for Scheduled Caste candidate is 5 seats, for Scheduled Tribe candidate is 1 seat, for SEBC candidate 5 seats and for General candidate 42 seats. At this stage, it is further submitted that Rule 10 of the Rules of 1994 prescribes the manner in which the rotation of office of the Sarpanch is to be operated. Learned Government Pleader referred to the chart given in para 9 and 10 of the affidavit-in-reply and submitted that one seat of village Kotda is reserved for Scheduled Tribe category for election of 2016 as per the Rules.
8. Learned Government Pleader would further contend that the population provided in the census is required to be considered while reserving the post for Scheduled Caste or Scheduled Tribe category and not on the basis of the population as on date. It is submitted that as per the census of 2011, the population of Scheduled Tribe category was highest in village Kotda and therefore the seat of Sarpanch for Scheduled Tribe category was reserved for village Kotda. At this stage, learned Government Pleader would further contend that population on the basis of the present position cannot be taken into consideration in view of the specific Page 10 of 57 HC-NIC Page 10 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER provision made in the Constitution of India as well as the definition given in the Act with regard to the term 'population'.
9. Learned Government Pleader referred to various provisions contained in the Act as well as the provisions contained in Representation of Peoples Act, 1950 in support of her contention. Learned Government Pleader also referred to the Constitutional mandate given in Article 243D of the Constitution of India which provides for reservation of seats for Scheduled Caste and Scheduled Tribe category in the election of Panchayat. Learned Government Pleader also referred the definition of 'population' given in Article 243(f) of the Constitution of India in support of her contention.
10. Learned Government Pleader further submitted that a law made by the Parliament or the legislature can be struck down by the Courts on two grounds viz. (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground. It is further contended that no enactment can be struck down by just saying that it is arbitrary or unreasonable or absurd. It is submitted that the learned advocate appearing for the petitioner has failed to demonstrate that Rule 6 of the Rules of Page 11 of 57 HC-NIC Page 11 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER 1994 is violative of any of the fundamental rights guaranteed in part III of the Constitution of India or any other constitutional provisions nor it is pointed out that the Rules of 1994 are framed without legislative competence. It is, therefore, submitted that the present petition is without any merits and therefore the same be dismissed.
11. Learned Government Pleader has placed reliance upon the following decisions:
"1. Decision of this Court rendered in the case of Rameshchandra Ramanbhai Patel v. Collector of Kheda, reported in 1979(1) GLR 191.
2. Decision dated 06.09.2013 rendered by the Division Bench of this Court in the case of Amisha Chirag Shah v. State of Gujarat & Ors. in Special Civil Application No.8177 of 2013.
3. Decision of this Court in the case of Amisha Chirag Shah v. State of Gujarat, reported in 2013(4) GLR 3408.
4. Decision dated 18.02.2014 rendered by the Division Bench of this Court in Special Civil Application No.2695 of 2012.
5. Decision rendered by the Hon'ble Supreme Court in the case of Rajbala and others v. State of Haryana and others, reported in (2016) 2 SCC 445.
6. Decision dated 15.09.2016 rendered by the Patna High Court in the case of Ramesh Prasad Yadav v. State of Bihar in Letters Page 12 of 57 HC-NIC Page 12 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER Patent Appeal No.1261 of 2016."
12. We have considered the submissions canvassed on behalf of learned advocates appearing for the parties. We have also gone through the material produced on record, provisions of law relied on by the learned counsel as well as the decisions upon which reliance is placed by the learned counsel. So as to decide the controversy involved in this petition, following questions arise for our consideration:
(1) While reserving the post of Sarpanch for Schedule Tribe category, the population provided in last preceding census is required to be considered or whether the population of Schedule Tribe category at the time of election is required to be considered?
(2) Whether Rule 6 of Rules of 1994 is ultra vires to the constitution?
13. So as to decide the aforesaid questions, relevant provisions of Act of 1993, Rules of 1994, Constitution of India as well as Representation of Peoples Act, 1950 are required to be examined.
13.1. Article 243D of the Constitution provides as under:
"243D. Reservation of seats (1) Seats shall be reserved for Page 13 of 57 HC-NIC Page 13 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER
(a) the Scheduled Castes; and
(b) the Scheduled Tribes, in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the, total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat (2) Not less than one third of the total number of seats reserved under clause (1) shall be reserved for women belonging, to the Scheduled Castes or, as the case may be, the Scheduled Tribes (3) Not less than one third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat (4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide:
Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of Page 14 of 57 HC-NIC Page 14 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER the State:
Provided further that not less than one third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women: Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level (5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in article 334 (6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens"
13.2. Clause (f) of Article 243 of the Constitution defines the word 'population'. It provides that 'population' means the population as ascertained at the last preceding census of which the relevant figures have been published.
13.3. Section 2(14) of the Act of 1993 provides the word 'panchayat' which means a village panchayat, taluka panchayat or district panchayat.
Page 15 of 57 HC-NIC Page 15 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER 13.4. Section 2(33) of the Act of 1993
provides that 'the words "gram sabha' 'panchayat area' 'population' and 'village' shall have the meanings respectively assigned to them in Part IX of the Constitution.' 13.5. Section 9 of the Act of 1993 provides for 'Constitution of Village Panchayats.' 13.6. Section 9(5) provides as under:
"9. Constitution of Village Panchayats.
(1) .......
(2) .......
(3) .......
(4) .......
"(5)(a)(i) Seats shall be reserved by the State Government for the Scheduled Castes and the Scheduled Tribes in every village panchayat in the State and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats in that panchayat as the population of the Scheduled Castes in the village or as the case may be of the Scheduled Tribes in that village bears to the total population of that village, and such seats shall be allotted by the State Election Commission by rotation to different wards in that village in the prescribed manner."
Note:- For Scheduled Area of the State, sub-clause(ia) has been inserted, See Schedule IV.
(ii) Where in a village there is in the Page 16 of 57 HC-NIC Page 16 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER opinion of the State Government population of socially and educationally backward classes, there shall be reserved by the State Government for the socially and educationally backward classes one tenth of the total number of seats in a village panchayat and such seats shall be allotted by the State Election Commission by rotation to different wards in that village in the prescribed manner.
(b) One third of the total number of seat reserved under clause(a), shall, be reserved by the State Government for women belonging to the Scheduled Castes, the Scheduled Tribes or, as the case may be, the socially and educationally backward classes.
(c) One third (including the number of seats reserved for women belonging to the Scheduled Castes, the Scheduled Tribes and the socially and educationally backward classes) of the total number of seats in a village panchayat shall be reserved by the State Government for women and such seats shall be allotted by the State Election Commission by rotation to different ward in the village in the prescribed manner."
13.7. Sections 18, 19 and 20 of the Act of 1993 provide as under:
"18. Preparation of list of Voters.- At any time not later than two months before the expiry of the duration of a panchayat under Section 13, and in the case of a panchayat which is to be constituted or reconstituted under the provisions of this Act otherwise than on the expiry of its duration under section 13 at any such time as the State Election Commission may after Page 17 of 57 HC-NIC Page 17 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER consulting the State Government determine, there shall be prepared for the purpose of the general election of members for constituting or, as the case may be, reconstituting such panchayat, a list of voters for every electoral division in respect of such panchayat as determined under section 16 and in force at the time when such list is prepared.
19. Persons qualified to be registered as voters.-Every person who is entitled to be registered in the relevant part of the electoral roll of the Gujarat Legislative Assembly under the Central Act shall be entitled to be registered as a voter in the list of voters for the electoral division, to be prepared under section 18.
20. List of voters.-(1) The electoral roll of the Gujarat Legislative Assembly prepared under the provisions of the Central Act, for the time being in force for such part of the constituency of the Assembly as is included in the relevant electoral division, shall, subject to any amendment, deletion or addition made under sub-section (3) or any inclusion of any name under sub-section (5), be the list of voters for that electoral division.
(2) Such officer of the State Government as the State Election Commission may specify in this behalf (hereinafter referred to as "the specified officer") shall, subject to superintendence, direction and control of the commission, maintain a list of voters for each electoral division, the list shall be published in the prescribed manner.Page 18 of 57
HC-NIC Page 18 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER (3) If on an application made to him in this behalf or on his own motion the specified officer is satisfied that the list of voters is at variance with the relevant part of the electoral roll of the Gujarat Legislative Assembly on account of any mistake in the list, he shall amend the list so as to bring it in conformity With the said electoral roll and for that purpose may amend, delete or add any entry in that list.
(4) Any person who has become entitled to be registered in the relevant part of the electoral roll of the Gujarat Legislative Assembly under the Central Act, after the qualifying date may apply to the specified officer for inclusion of his name in the list.
(5) Where the specified officer after making such inquiry as he may consider necessary, is satisfied that the applicant is entitled to be registered in the relevant part of the electoral roll of the Gujarat Legislative Assembly under the Central Act, he shall direct the name of the applicant to be included in the list of voter:
Provided that no such direction shall be given if the applicant is dis- qualified to vote under this Act or any other law for the time being in force (6) No amendment, deletion or addition of any entry in the list of voters for an electoral division shall be made under sub- section (3) and no direction for inclusion of a name in that list shall be given under sub-section (5) during the Page 19 of 57 HC-NIC Page 19 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER period between such date as the State Election Commission may, by general or special order, notify in this behalf and the date of the completion of any concerned election in the electoral division.
Explanation:- In this section the expression "qualifying date' has the same meaning as in clause (b) of section 14 of the Central Act, (7) The list of voters shall after it is finally prepared under this section be published in the prescribed manner and shall come into operation immediately upon it final publication."
13.8. Section 51 of the Act of 1993 provides as under:
"51. First meeting of panchayat and election of Sarpanch and Upa-Sarpanch.-(1) On the constitution of a village panchayat or on its reconstitution under section 13 or under any other provision of this Act, there shall be called the first meeting thereof for the election of Upa-Sarpanch from amongst the members of the panchayat.
(2)(a) The offices of Sarpanch of village Panchayats in the State shall be reserved by the State Government for the Scheduled Castes and the Scheduled Tribes and the number of the offices of Sarpanch of village panchayats in the State so reserved shall bear as nearly as may be, the same proportion to the total number of offices of Sarpanch of village panchayat Page 20 of 57 HC-NIC Page 20 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER in the State as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State. There shall be reserved by the State Government for socially and educationally backward classes ten percent of the offices of Sarpanch of village panchayats in the State.
Note:- For Scheduled Areas of the State, Clause (a) has been substituted, See Schedule IV.
(b) (i) One third of the total number of offices of Sarpanch of village panchayats in the State reserved under clause (a) and
(ii) One third of the total number of offices of Sarpanch of village panchayats in the State, not so reserved, shall be reserved by the State Government, for women.
Note:- For Scheduled Areas of the State, Clause (b)(i) has been amended and (b)(ii) deleted, See Schedule IV.
(3) The number of offices reserved under sub-section (2) shall be allotted by the State Government by rotation to different village panchayats in the State in the prescribed manner.
(4) xxx xxx xxx (5) xxx xxx xxx (6) xxx xxx xxx (7) xxx xxx xxx (8) xxx xxx xxx"
Page 21 of 57HC-NIC Page 21 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER 13.9. Rules 3, 4, 6 and 10 of the Rules of 1994 read as under:
"3. Assignment of serial numbers to village panchayats of a taluka.- (1) Each village panchayat in a taluka shall be assigned by the State Government a name based on the name of the village for which the village panchayat is constituted.
(2) Where a village consists of more than one revenue village or hamlet it shall be assigned the name of the revenue village or hamlet which has largest population.
(3)(a)the names of village panchayats of a taluka shall be arranged by the State Government in an English alphabetical order:
Provided that.-
(1)Where there is more than one village panchayat having the name with the same letter of English alphabet, the village panchayat shall be distinguished by reference to the succeeding letters of the alphabet in the name of such village panchayat:
(2) Where there is more than one village panchayat having identical names -
(a) And the village for which such panchayat is constituted consist of a group of revenue villages, the village panchayat shall be distinguished by the name of such other revenue village in that group which has the largest population:
(b) in any other case, the
village panchayats shall be
distinguished by reference to such Page 22 of 57 HC-NIC Page 22 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER village which is contiguous to the village for which the panchayat is constituted and which has the largest population.
(b) Thereafter the village panchayats as so arranged in the English alphabetical order shall be assigned serial numbers in that alphabetical order.
(4) The serial numbers assigned to the village panchayats of a taluka under this rule shall be known as general serial numbers.
4. Manner of Reservation of Offices of Sarpanch.-(1) The reservation of offices of Sarpanch of village panchayats in the State of the Scheduled Castes, the Scheduled Tribes and the Socially and Educationally Backward Classes under clause(a) of sub-section (2) of section 51 of the Act shall be made in the manner specified hereafter.
(2) The offices of sarpanch of village panchayats in at taluka shall be reserved by the State Government for the scheduled castes and the scheduled tribes and the number of the offices of sarpanch at village panchayats in a taluka as so reserved shall bear as nearly as may be, the same proportion to the total number of offices of sarpanch of village panchayats in a taluka as the population of the Scheduled Castes. In the taluka or the Scheduled Tribes in the taluka bears to the total population of the Taluka.
(3) The offices of sarpanch of village panchayats in a taluka shall be reserved by the State Government for the socially and educationally backward classes and the number of offices of sarpanch of village panchayats in a taluka as so reserved Page 23 of 57 HC-NIC Page 23 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER shall be ten percent of the total number of offices of sarpanch of village panchayats in a taluka."
6. Allotment of offices of Sarpanch reserved for Scheduled Tribes.- (1) For the purpose of allotment of the number of offices of sarpanch of village panchayats of a taluka determined by the State Government as reserved for the Scheduled Tribes under rule 4, the State Government shall determine the village of a taluka which consist of population of the Scheduled Tribes, and such villages of a taluka shall be serially arranged in accordance with the percentage of population of the Scheduled Tribes in each village beginning with the village consisting of the highest percentage of the population of the Scheduled Tribes and shall be assigned serial numbers as ST 1, ST 2 and so on.
(2) The serial numbers as so assigned shall be known as special serial numbers for the Scheduled Tribes.
(3) The State Government shall, after having allotted the offices of sarpanch of village panchayats in a taluka reserved for the Scheduled Castes under sub-rule(3) of rule 5, allot the number of offices of sarpanch of village panchayats in a taluka reserved for the Scheduled Tribes (including one third of such offices reserved for women belonging to the Scheduled Tribes) serially to the villages bearing special serial numbers for the Scheduled Tribes by rotation so however that preference shall be given to allotment offices of sarpanch reserved for the women.
xxx xxx xxx
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10. Lists of villages bearing special serial numbers and general serial numbers how operated.- in every immediately succeeding election-
(a) the lists of villages bearing special serial numbers for the Scheduled Casts, the Scheduled Tribes or, as the case may be, the socially and educationally backward classes shall-
(i) continue to be operated serially from the special serial number following the special serial number where the allotment of officers of sarpanch reserved for the Scheduled Castes, the Scheduled Tribes or, as the case may be, the socially and educationally backward classes had ended:
(ii)be operated till it is exhausted; and
(iii) be reported from the beginning after it is exhausted.
(b) The list of villages bearing general serial number shall, in so far as allotment of offices of Sarpanch reserved for the women is concerned, shall -
(i) continue to be operated serially from the general serial number following the general number where the allotment of offices of sarpanch reserved for the women, had ended:
(ii)be operated till it is exhausted; and
(iii)be reported from the beginning after it is exhausted."
13.10. Provisions of Section 14 and 20 of the Representation of the People Act, 1950 read as under:
"14. Definitions.-- In this Part, unless the context otherwise requires,--
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(a ) "constituency" means an Assembly constituency [* * *] ;
(b ) "qualifying date", in relation to the preparation or revision of every electoral roll under this Part, means [the 1st day of January] of the year in which it is so prepared or revised.] [Provided that "qualifying date", in relation to the preparation of revision of every electoral roll under this Part in the year 1989, shall be the 1st day of April, 1989.] "20. Meaning of "ordinarily resident".--[(1) A person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns, or is in possession of, a dwelling house therein. (1A) A person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein. (1B) A member of Parliament or of the Legislature of a State shall not during the term of his office cease to be ordinarily resident in the constituency in the electoral roll of which he is registered as an elector at the time of his election as such member, by reason of his absence from that constituency in connection with his duties as such member.] (2) A person who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or mental defectiveness, or who is detained in prison or other legal custody at any place, shall not by reason thereof be deemed to be ordinarily resident therein.
[(3) Any person having a service
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qualification shall be deemed to be ordinarily resident on any date in the constituency in which, but for his having such service qualification, he would have been ordinarily resident on that date.] (4) Any person holding any office in India declared by the President in consultation with the Election Commission to be an office to which the provisions of this sub-section apply, [* * *] shall be deemed to be ordinarily resident [***] on any date in the constituency in which, but for the holding of any such office [* * *], he would have been ordinarily resident [* * *] on that date.
(5) The statement of any such person as is referred to in sub-section (3) or sub- section (4) made in the prescribed form and verified in the prescribed manner, that [but for his having the service qualification] or but for his holding any such office [* * *] as is referred to in sub-section (4) he would have been ordinarily resident in a specified place [* * *] on any date, shall, in the absence of evidence to the contrary, be [accepted as correct].
(6) The wife of any such person as is referred to in sub-section (3) or sub- section (4) shall if she be ordinarily residing with such person [* * *] be deemed to be ordinarily resident on [* * *] in the constituency specified by such person under subsection (5).
[(7) If in any case a question arises as to where a person is ordinarily resident at any relevant time, the question shall be determined with reference to all the facts of the case and to such rules as may be made in this behalf by the Central Government in consultation with the Election Commission.] Page 27 of 57 HC-NIC Page 27 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER (8) In sub-sections (3) and (5) "service qualification" means--
(a) being a member of the armed forces of the Union; or
(b) being a member of a force to which the provisions of the Army Act, 1950, have been made applicable whether with or without modifications; or
(c) being a member of an armed police force of a State, who is serving outside that State; or
(d) being a person who is employed under the Government of India, in a post outside India.]"
14. If we carefully examine the aforesaid relevant provisions, it is revealed that the village panchayat is required to be constituted as provided in Section 3 of the Act of 1993. Such village panchayat shall consist of such number of members as provided in Section 9 of the Act of 1993. Sarpanch of a village panchayat shall be elected by the qualified voters of the village. The State Government shall reserve the seats for the Scheduled Castes and the Scheduled Tribes in every village panchayat in the State and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats in that panchayat as the population of the Scheduled Castes in the village or as the case may be of the Scheduled Tribes in that village bears to the total population of that village, and such seats shall be allotted by Page 28 of 57 HC-NIC Page 28 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER the State Election Commission by rotation to different wards in that village in the prescribed manner. For the election of village panchayat, a list of voters for every electroal division is required to be prepared and maintained in accordance with the provisions contained in the Act of 1993. It is provided that any time not later than two months before the expiry of the duration of the panchayat, the State Election Commission may after consulting the State Government, prepare a list of voters. Every person who is entitled to be registered in the relevant part of the electoral roll of the Gujarat Legislative Assembly under the Central Act shall be entitled to be registered as a voter in the list of voters for the electoral division.
15. The offices of Sarpanch of village Panchayats in the State shall be reserved by the State Government for the Scheduled Tribes for the whole local area which comprises of Scheduled Areas and such seats shall be allotted by the State Election Commission by rotation in the prescribed manner.
16. Rule 3 of the Rules of 1994 provides for assignment of serial numbers to Village Panchayat of a taluka. The serial numbers are to be assigned on the basis of the names of the village and after assignment, the villages are to be Page 29 of 57 HC-NIC Page 29 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER arranged as per English alphabetical orders. Rule 4 of the said Rules provides for reservation of the office of Sarpanch of Village Panchayat in the State for Scheduled Caste, Scheduled Tribes and Socially and Educationally Backward Class. In the present case, we are concerned with Rule 6 of the Rules of 1994, which provides for the reservation of post of Sarpanch for Scheduled Tribe. As per the said Rule, the village which has the highest population of Scheduled Tribe shall be arranged top of the list at serial number 1 and thereafter the villages are to be arranged descendantly proportion to their population of Scheduled Tribe and such villages shall be numbered as ST.1, ST.2 and so on.
17. At this stage, it is further required to be noted that there is a constitutional mandate in part IX of the Constitution to which we are concerned. Article 243D specifically provides for reservation of seats for Scheduled Caste and Scheduled Tribes in every panchayat. The said provision is already referred to hereinabove. However, at this stage, we would like to refer to the Article 243D(4) of the Constitution of India which provides as under:
(4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Page 30 of 57 HC-NIC Page 30 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER Castes the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide:
Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State:
18. Thus, there is specific reference with regard to the word 'population' in the aforesaid provision. For the sake of repetition, we would like to refer to the definition given in Clause
(f) of Article 243 which provides that 'population' means the population as ascertained at the last preceding census of which the relevant figures have been published.
19. Keeping in mind the aforesaid provisions, if the facts of the present case are examined, it is revealed that the respondent authorities have considered the population as per census which was carried out in the year 2011 for Taluka Anjar, District: Kachchh. On the basis of the population of the said Taluka which comprises of 53 Gram Panchayats and after following the provisions contained under Rules 4 to 7 of the Rules of Page 31 of 57 HC-NIC Page 31 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER 1994, the post of Sarpanch of village Kotda was reserved for Scheduled Tribe category candidate.
As per the census of 2011, 223 persons of Scheduled Tribe community were found residing in the said village and therefore the post of Sarpanch for the said village was reserved for Scheduled Tribe category. The respondent authorities have placed on record the calculation by which the post of Sarpanch for village Kotda was kept reserved for Scheduled Tribe category in the affidavit-in-reply. It is the case of the petitioner that as on date not a single person of Scheduled Tribe community is available in the village Kotda and therefore the respondent authorities be directed to re-arrange the reservation for the post of Sarpanch of village Kotda. The contention of learned advocate for the petitioner is that the actual population is not looked into and therefore literal meaning of the word 'population' renders the Constitutional provision absurd as the post of Sarpanch would remain vacant.
20. At this stage, we would like to refer to the decision relied upon by the learned advocates appearing for the parties.
21. In the case of Rameshchandra Ramanbhai Patel (supra), the Division Bench of this Court Page 32 of 57 HC-NIC Page 32 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER observed and held in para 22, 23 and 28 as under:
"22. It would thus appear that the principle, which must be taken to have been established beyond doubt or debate, so far as this country is concerned, is that whenever the statute requires selection of persons to be made by popular election to perform governmental functions, whether at the Union or State or local level, each vote must have an equal value and that when members of such elected bodies are chosen from separate constituencies, each constituency must be established on a basis which will ensure, as far as practicable, that equal number of constituents can vote for proportionately equal number of representatives. The rule is so deeply entrenched in our election jurisprudence that any deviation therefrom would require strict justification on rational or permissible grounds and any wrongful dilution thereof must be jealously guarded against.
23. Against this background, let us consider whether the one man-one vote rule operates with reference to the inhabitant population or voter population. In other words, the question for consideration is whether the underlying concept of this rule is related to the number of voters or to the number of constituents. It the contention of the petitioners is accepted, the representation of each ward in the municipal government would be, as nearly as possible, equal on the basis of registered voters and not on the basis of population. We are of the opinion, however, for the reasons which follow, that on this contention the petitioners must fail. The municipal government and Page 33 of 57 HC-NIC Page 33 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER for that matter any other local Government performs important public functions within the area under its jurisdiction. The municipality performs important governmental functions which have sufficient impact throughout the municipal borough and on the inhabitant population of such borough. The decisive factor for the constitution of such municipal government must, therefore, be the will of the people, more so when the process of election is the mode laid down for its composition. It is true that not each and every soul inhabiting the borough is entitled to vote and that having regard to the qualifications and disqualifications prescribed in the Act, some out of those souls alone would be eligible to be entered into the voters list and qualified for voting. When such qualified voters vote, however, their votes speak for and on behalf of the population of the ward in which they reside and their votes are the expression of the will of such population. The inhabitant population and not the voter population must, therefore, be the determinative factor. That apart, the number of voters in a ward would depend upon numerous variable factors. It may be a matter of accident, circumstances or design that one ward may have a larger number of voters in proportion to the population than the other. Take, for example, the case of a ward the inhabitant population of which consists largely of persons who, on account of the nature of duties which they are required to perform, are compelled to live away from their families. A large number of persons residing in such ward would be qualified voters and the proportion of qualified voters to the population would, therefore, be on a much higher side by sheer accident. Similarly, in wards where the Page 34 of 57 HC-NIC Page 34 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER population consists of relatively backward class people, economically or otherwise, the population may be large, having regard to lack of family planning or such other factors. The proportion which the number of qualified voters bears to the population of such ward may compare unfavourably with a ward in which more fortunate segments of population reside. This is the sheer result of circumstances. But apart from the imbalance resulting from such accidents or circumstances, still greater objection in the linking of one man-one vote rule to the voting population would arise from the political device known as the """gerrymander.""" A voters list could always be so manipulated by those with means and in power as to secure unfair advantage by disproportionate representation at the election. This would not happen if the inhabitant population ascertained from authentic data is made the foundation of the one man-one vote rule. It appears to us, therefore, that the petitioners contention in this behalf must fail.
xxx xxx xxx
28. The contention of the petitioners that even if the inhabitant population is required to be taken into account, its strength must be ascertained on the available data at or about the time of election and not on the basis of the data supplied by the last preceding census, attractive though it may sound, is not well-founded and may strike at the very root of the principle which the petitioners so arduously seek to sustain. It is true that for the purposes of mid- census election of a growing Municipal borough, the strength of population ascertained at the last preceding census Page 35 of 57 HC-NIC Page 35 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER may sometimes provide an illusory or, at any rate, defective data and it may, to some extent, have the effect of deviation from the strict adherence to the one man- one vote rule. Official population, that is to say, the population ascertained at the last preceding census, may, in the case of an expanding urban town to which many people from the surrounding rural areas will throng to find employment, be at considerable variance from the actual population that may be found at or about the time of the mid-census election. It would, however, be hazardous to disregard census as the determinative factor with regard to population for the simple reason, if none other, that there would ordinarily be no other authentic data available for judging the population strength. It may be that the local Government maintains some record of deaths and births or that the State Government, on the basis of the issue of ration cards, keeps track of the population strength in different areas. However, these records cannot be equated in the matter of their authenticity with census. Besides, the record of births and deaths would not reflect the shift in population. The data collected on the basis of issuance of ration cards could hardly furnish accurate material, for, the evil of ghost-cards is a known phenomenon. It is presumably for this reason that the Constitution itself has adopted in Articles 81 and 170, population as ascertained at the last preceding census of which the relevant figures have been published as the basis for election to the Parliament and State Legislatures. Similarly, the Act under consideration also defines population in more or less similar terms in sec. 2 (20) and it is that population which has to be taken into account for the purpose of Page 36 of 57 HC-NIC Page 36 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER determining the total number of councilors for each municipal borough. The allied legislation, namely, the Gujarat Panchayats Act, 1961 has in terms provided in sec. 20 read with sec. 2 (23) that population as ascertained at the last preceding census shall be the determinative factor for the division of the gram, nagar, taluka and district panchayats, as the case may be, into single member constituencies. In the United States of America also, many State Constitutions frequently require that in the determination of the question of population for apportionment the decision is to rest on the last United States Census or on a State Census (See American Jurisprudence, 2nd Edition, Volume 25, page 712), It would thus appear that it is to protect the one man-one vote rule against any invidious debasement that the last preceding census has been taken as the correct indicia of the strength of the population and the increase or decrease of population in different localities has been disregarded in the mid-census election in most of the statutory provisions. When this factor is appreciated in conjunction with the fact that the total number of seats at a mid- census election also ordinarily remains constant under our statutory scheme, irrespective of the inflation or deflation in the population as ascertained at the last preceding census for the area in question, much of the force in the argument that the indicia adopted is illusory is lost."
22. In the case of Amisha Chirag Shah rendered in Special Civil Application No.8177 of 2013, the Division Bench of this Court has observed and Page 37 of 57 HC-NIC Page 37 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER held in para 14 to 18 as under:
"14. As provided in Sub-section [20] of Section 2 of the Act, population in relation to the municipal borough means the population as ascertained in the last preceding census of which the relevant figures have been published.
15. There is no dispute in the case before us that the figure available in 2001 census is the last preceding census of which the relevant figures have been published, and according to the provisions contained in Article 243.T of the Constitution, seats shall be reserved for the Scheduled Castes and the Schedules Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion of the total number of seats to be filled in by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality. Sub Article (4) of the said Article provides that the office of the Chairpersons in the Municipalities shall be reserved for the Scheduled Caste, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide.
16. We find that by virtue of the aforesaid provisions contained in Article 243-T (4), based on 2001 census, and in accordance with the Principal Act, the State Government provided for a ten points roster. Although the said ten point roster is exhausted and it is the time for Page 38 of 57 HC-NIC Page 38 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER framing a fresh roster, we find that in the meantime, there being no further publication of census figures, the same roster point should be maintained in the same way as was originally prepared based on the figures available from the Census published in the year 2001. We also find that in the draft publication, the same order was maintained so far as Godhra Municipality was concerned, but on the basis of the objections raised by the private-respondents, the State has changed the same from women to general category.
17. We, thus, find substance in the contention of Mr. Pandya, the learned advocate appearing on behalf of the petitioner, that no specific reasons have been given disclosing why there is a deviation of the order of the point of the existing roster although there has been no publication of figures of the new census showing change of population of SC, ST, BC and women etc. We find no substance in the contention of Mr. Jani, the learned Government Pleader appearing for the State, that as the 2011 census figures were not available, the State Government was constrained to publish a one point roster deviating from the order of reservation reflected in the earlier roster.
18. In our opinion, if there has been no publication of any census after the ten points roster was exhausted, it was the duty of the State-respondent to continue the same order of reservation based on the earlier one because according to the Act enacted by the State legislature, it is the last published census that should be the basis of reservation. In the meantime, there being no further publication indicating any change in the pattern of Page 39 of 57 HC-NIC Page 39 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER population from the last one published, it was the duty of the state-respondent to continue with the same order of reservation prevailing in the last published one."
23. At this stage, it is relevant to observe that after the aforesaid decision was rendered by the Division Bench, review application came to be filed. However, the Division Bench has dismissed the review application and the said decision is reported in 2013(4) GLR 3408, wherein the Division Bench has once again observed in para 10 and 11 as under:
"10. It appears from the records that although the reservation policy should be adopted on the basis of the last census published, in the State of Gujarat, the election has been held by following the reservation based on the 1991 census, even after publication of the 2001 census. We, however, do not know whether by virtue of the census of 2001, the pattern of reservation fixed by 1994 rules based on 1991 census figures would change or not.
11. Be that as it may, we repeat and reiterate that reservation in an election should be fixed by virtue of the figures of the last published census and in the case before us, the full data of 2011 census having been published in the month of June 2013, all future elections should be held on the basis of reservation based on the figures of the census of 2011 which is the last published census. We do not find any substance in the contention of Mr. Pandya, the learned advocate for the Page 40 of 57 HC-NIC Page 40 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER petitioner that as the general election in the case before us was held in the year 2010, the post of the President should also be reserved on the basis of the earlier census and not on the basis of the last published census. We have already pointed out that the last published census is the 2011 census and the earlier one was of 2001 on the basis of which no reservation has been fixed in the State of Gujarat. In our opinion, the moment the 2011 census has been published, it is the duty of the State-respondent to fix new criteria for reservation based on the last census and any election held after publication of the 2011 should be guided on the policy of reservation based on 2011 census as provided by law."
24. The Division Bench of Patna High Court in the case of Ramesh Prasad Yadav delivered in Letters Patent Appeal No.1261 of 2016, in a similar set of facts, observed in para 1 to 5, 20, 28 and 29 as under:
1. 15-09-2016 Albeit short, yet a significant question of law, this appeal, made under Clause 10 of the Letters Patent of this Court, has raised with regard to the application of the definition Clause 2(ac) of the Bihar Gram Panchayat Raj Act, 2006 (hereinafter referred to as "the Act"), which defines "population" for the purposes of, inter alia, composition of Gram Panchayat, and reservation of seats for the representative of the local bodies under the Act, read with Rules 8, 15 and 16 of the Bihar Gram Panchayat Election Rules, 2006 (hereinafter referred to as the "Rules"), in particular and other Page 41 of 57 HC-NIC Page 41 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER provisions under the Act and the Rules in general.
2. Section 2(ac) of the Act defines "population" as under:-
"2 (ac). "Population" means and includes the population as ascertained at the last preceding census of which the relevant figures have been published."
3. In this appeal, judgment and order, dated 10.06.2016, passed by the learned single Judge in CWJC No. 4442 of 2016, stands impugned, whereby the writ application, filed by the appellant herein, has been dismissed. The learned single Judge has rejected the plea of the appellant that population of the village, in question, for the purposes of the Act and Rules framed thereunder, should have been on the realistic basis and since there was no population in the said Village, the same ought to have been treated as "NIL"
and ought to have held that the
categorization of territorial
constituencies, in reference to the
population of the area, had to be done as per the figure of preceding Census of the year 2011.
4. Before we approach the core issue involved and the rival stands taken on behalf of the contesting parties, in the present proceeding, it would be appropriate to mention a few basic facts, which are admitted and if we may say so, most crucial for deciding the issue and the dispute. The facts are: in the preceding Census of 2011, population of the village, in question, viz., Panapur under Maharajganj Panchayat Raj, in the district of Chapra, has been recorded as 2716; out of which 1450 has been recorded as male population, whereas Page 42 of 57 HC-NIC Page 42 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER 266 has been recorded as female population of the said Panchayat Raj. The post of Mukhiya of said Maharajganj territorial constituency No.13 has been reserved for the female of Scheduled Caste for 2016 Panchayat Election. The appellant, who was the petitioner, in the writ proceeding before learned single Judge, questioned the treating of the population of Panapur Village as 2716 (1450 Males and 1266 Females) on the premise that factually, the population of Panapur Village is „nil‟ and, because of inclusion of incorrect figures of the population based on 2011 Census, Mukhiya‟s post of Maharajganj Gram Panchayat has been wrongly categorized and reserved for Scheduled Caste (Female). It is the case of the appellant that there is no population at all in the said Village, which can be easily physically verified.
5. A question has, therefore, emerged as to whether, population, as recorded in preceding 2011 Census of Village Panapur, ought to have been ignored and was it permissible for any authority, under the Act, to alter the population figure of the said Village through any mode of evaluation/assessment, irrespective of the population recorded in the preceding 2011 Census.
xxx xxx xxx
20. As has been noted above, though in the preceding Census of 2011, population of the Village Panapur was recorded as 2716, the District Magistrate recorded "nil" in the draft publication in Form-1 published under Rule 8 (1) of the Rules, against the Village Panapur and, on that basis, final publication in Form-1 was made showing "nil" population against the said Gram Panchayat. It appears that the State Page 43 of 57 HC-NIC Page 43 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER Election Commission noticed this error whereafter, the District Panchayat Raj Officer, Saran, and other Officers of the Panchayat were summoned along with relevant records and having arrived at the final conclusion that there was such error in final population figures, issued direction to rectify the same. Thereafter, necessary corrections were made in population figure as per 2011 Census. The State Election Commission, through its letter, dated 22.07.2015, directed all the District Magistrates-cum-District Election Officers of the State to prepare the territorial constituencies and publish them, by 03.08.2015 in Form-1 and in the District Gazette, by 17.08.2015, after making necessary correction, as per population figures available in 2011 Census.
xxx xxx xxx
28. As has been noted at the very outset, Section 2(ac) defines "population" as the population ascertained in the last preceding Census. The population figure of Panapur village was, admittedly, 2716. The word "population", wherever it occurs under the Act or the Rules, would essentially mean the population according to the last preceding Census, which in the present case, is the Census figure of 2011. It would amount to tinkering with the statutory requirement if the authorities are allowed to decide the population of a village or constituency on the basis of their own assessment contrary to the mandate of the law, which prescribes that the population shall mean the population figure shown in the preceding Census. It has been repeatedly held by the superior Courts, including the Supreme Court of India, that when a Page 44 of 57 HC-NIC Page 44 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER procedure is prescribed by the legislature, neither the Court nor any authorities can substitute another procedure according to their own notion of justice. It is settled and needs no reiteration that when a statutory function is required to be discharged in a particular way as prescribed under the statute, all other modes of discharge are essentially forbidden.
29. No amount of argument, advanced on behalf of the appellant, that population of village Panapur, as assessed by the local administration, should form the basis for the purpose of publication of list of territorial constituencies or for the purpose of publication of reserved constituencies, under the Bihar Gram Panchayat Raj Act, 2006, or the Rules framed thereunder, can persuade us, there being clear, definite and unambiguous definition of population under Section 2(ac) of the Act.
25. Learned advocate Mr. Mangukiya appearing for the petitioner has relied upon the decisions rendered by the Hon'ble Supreme Court in support of his contention, more particular with regard to the interpretation of the statute in the case of R.M.D. Chamarbaugwalla (supra) wherein the Hon'ble Supreme Court has held that when a question arises as to interpretation to be put on an enactment, what the Court has to do is to ascertain the intent of them that make it, and that must of course be gathered from the words actually used in the statute. That, however, does Page 45 of 57 HC-NIC Page 45 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER not mean that the decision should be rest on a literal interpretation of the words used in disregard of all other materials. To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole Act, to consider what was the law before the Act was passed, what was the mischief or defect for which the law had been provided, what remedy parliament has appointed and the reason of the remedy.
26. In the case of Sarah Mathew (supra), the Hon'ble Supreme Court has held that a Court of law would interpret a provision which would help in sustaining the validity of the law by applying the doctrine of reasonable construction rather than applying a doctrine which would make the provision unsustainable and ultra vires the Constitution.
27. In the case of Tinsukhia Electric Supply Co. Ltd., the Hon'ble Supreme Court observed and held in para 118 to 120 as under:
"118. The Courts strongly lean against any construction which tends to reduce a Statute to a futility. The provision of a Statute must be so construed as to make it effective and operative, on the principle "ut res majis valeat quam periat". It is, no doubt, true that if a Statute is absolutely vague and its language wholly Page 46 of 57 HC-NIC Page 46 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER intractable and absolutely meaningless, the Statute could be declared void for vagueness. This is not in judicial review by testing the law for arbitrariness or unreasonableness under Article 14; but what a Court of construction, dealing with the language of a statute, does in order to ascertain from, and accord to, the Statute the meaning and purpose which the legislature intended for it. In Manchester Ship Canal Co. v. Manchester Race-course Co. Farwell J. said: (pp.360-61) "Unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning and not to declare them void for uncertainty."
119. In Fawcett Properties Ltd. v. Buckingham County Council Lord Denning approving the dictum of Farwell, J. said:
(All ER p. 516) "But when a Statute has some meaning, even though it is obscure, or several meanings, even though there is little to choose between them, the courts have to say what meaning the statute to bear rather than reject it as a nullity."
120.It is, therefore, the Court's duty to make what it can of the Statute, knowing that the statutes are meant to be operative and not inept and that nothing short of impossibility should allow a Court to declare a Statute unworkable. In Whitney v. IRC Lord Dunedin said: (AC p.52) A statute is designed to be workable, and the interpretation Page 47 of 57 HC-NIC Page 47 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER thereof by a Court should be to secure that object, unless crucial omission or clear direction makes that end unattainable."
28. In the case of Spentex Industries Ltd. (supra), the Hon'ble Supreme Court has observed and held in para 28 to 30 as under:
"Interpretation of word 'OR' occurring in Rule 18:
28. The aforesaid discussion leads us to the only inevitable consequence which is this: the word 'OR' occurring in Rule 18 cannot be given literal interpretation as that leads to various disastrous results pointed out in the preceding discussion and, therefore, this word has to be read as 'and' as that is what was intended by the rule maker in the scheme of things and to carry out the objectives of the Rule 18 and also to bring it at par with Rule 19.
29. We are conscious of the principle that the word 'or' is normally disjunctive and 'and' is normally conjunctive (See Union of India v. Kamlabhai Harjiwandas Parekh). However, there may be circumstances where these words are to be read as vice-versa to give effect to manifest intention of the Legislature as disclosed from the context.
30. Of course, these two words normally 'or' and 'and' are to be given their literal meaning in unless some other part of same Statute or the clear intention of it requires that to be done. However, wherever use of such a word, viz., 'and'/'or' produces unintelligible or absurd results, the Court has power to read the word 'or' as 'and' and vice-versa Page 48 of 57 HC-NIC Page 48 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER to give effect to the intention of the Legislature which is otherwise quite clear. This was so done in the case of State of Bombay v. R.M.D. Chamarbaugwala and while doing so, the Court observed as under:
"...Considering the nature, scope and effect of the impugned Act, we entertain no doubt whatever that the first category of prize competitions does not include any innocent prize competitions. Such is what we conceive to be the clear intention of the Legislature as expressed in the impugned Act read as a whole and to give effect to this obvious intention as we are bound to do, we have perforce to read the word "or"
appearing in the qualifying clause after the word "promoter" and before the word "or" as "and". Well-known canons of construction of statutes permit us to do so. (See Maxwell on the Interpretation of Statutes, 10th edition, page 238)"
29. Thus, keeping in mind the aforesaid decisions rendered by the Hon'ble Supreme Court as well as Division Bench of this Court, if the facts of the present case are scrutinized, it can be said that the present election should be held on the basis of reservation based on the figures of the census of 2011 which is the last published census. The moment the 2011 census has been published, it is the duty of the State-respondent to fix new criteria for reservation based on the last census and any election held after publication of the Page 49 of 57 HC-NIC Page 49 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER 2011 census should be guided on the policy of reservation based on 2011 census as provided by law. The word 'population' itself is defined in the Act of 1993. In Section 2(33) there is a reference with regard to the word 'population' which provides that the word 'population' shall have the meaning assigned to it in Part IX of the Constitution of India. Part IX of the Constitution provides that 'population' means the population as ascertained at the last preceding census of which the relevant figures have been published. Thus, the population so far as Scheduled Tribe of village Kotda was admittedly 223 as per the census of 2011. The word 'population' wherever it uses either in the Act of 1993 or the Rules framed thereunder would essentially means the population according to last preceding census which in the present case is the census figure of 2011. Thus, when the procedure is prescribed by the legislature, neither the Court nor any authorities can substitute another procedure according to their own notion of justice. It is well settled that when a statutory function is required to be discharged in a particular way as prescribed under the statute, all other modes of discharge are essentially forbidden.
30. There cannot be any dispute with regard to Page 50 of 57 HC-NIC Page 50 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER the proposition of law laid down by the Hon'ble Supreme Court in the cases on which reliance is placed by the learned advocate Mr. Mangukiya appearing for the petitioner. However, in the facts of the case, where the word 'population' itself is defined in the Constitution under Clause 243(f), no other interpretation is required, as contended by learned advocate Mr. Mangukiya. Thus, the said decisions would not render any assistance to him.
31. In view of the aforesaid discussion, we are of the view that the respondent State has not committed any error while reserving the post of Sarpanch for village Kotda on the basis of the the population of Scheduled Tribe community as per the census of 2011 and while reserving the post of Sarpanch, the population as on date of the village cannot be taken into consideration.
32. Another contention raised by the learned counsel for the petitioner is that Rule 6 of the Rules of 1994 is ultra vires to the constitution as the same is arbitrary. However, the Hon'ble Supreme Court has recently held in the case of Rajbala & Ors. (supra) that a statute cannot be held ultra-vires on the ground that it is arbitrary. The Hon'ble Supreme Court has observed in para 63 to 65 as under:
Page 51 of 57HC-NIC Page 51 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER "63. Learned Attorney General heavily relied upon para 43 of the State of A.P v.
McDowell & Co., which dealt with the question of declaring a statute unconstitutional on the ground it is arbitrary: (SCC pp.737-39, paras 43-44).
"43. Sri Rohinton Nariman submitted that inasmuch as a large number of persons falling within the exempted categories are allowed to consume intoxicating liquors in the State of Andhra Pradesh, the total prohibition of manufacture and production of these liquors is "arbitrary" and the amending Act is liable to be struck down on this ground alone. Support for this proposition is sought from a judgment of this Court in State of Tamil Nadu & Ors. v. Ananthi Ammal & Others [(1995) 1 SCC 519]. Before, however, we refer to the holding in the said decision, it would be appropriate to remind ourselves of certain basic propositions in this behalf. In the United Kingdom, Parliament is supreme. There are no limitations upon the power of Parliament. No Court in the United Kingdom can strike down an Act made by Parliament on any ground. As against this, the United States of America has a Federal Constitution where the power of the Congress and the State Legislatures to make laws is limited in two ways, viz., the division of legislative powers between the States and the federal government and the fundamental rights (Bill of Rights) incorporated in the Constitution. In India, the position is similar to the United States of America. The power of the Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by the Parliament or the Legislature can be struck down by courts on two grounds and two grounds alone, Page 52 of 57 HC-NIC Page 52 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part-III of the Constitution or of any other constitutional provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness - concepts inspired by the decisions of United States Supreme Court. Even in U.S.A., these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the Legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterized, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed Page 53 of 57 HC-NIC Page 53 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds, viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety [See Council of Civil Services Union v. Minister for Civil Services (1985 A.C.374) which decision has been accepted by this Court as well]. The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue. [See the opinions of Lords Lowry and Ackner in R. v. Secretary of State for Home Department ex p Brind, [1991 AC 696 at 766-67 and 762]. It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled. It is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the Court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted. Now, coming to the decision in Ananthi Ammal, we are of the opinion that it does not lay down a different proposition. It was an appeal from the decision of the Madras High Court striking down the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Acts 1978 as violative of Articles 14, 19 and 300A of the Constitution. On a review of the provisions of the Act, this Court found that it provided a procedure which was Page 54 of 57 HC-NIC Page 54 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER substantially unfair to the owners of the land as compared to the procedure prescribed by the Land Acquisition Act, insofar as Section 11 of the Act provided for payment of compensation in instalments if it exceeded Rupees two thousand. After noticing the several features of the Act including the one mentioned above, this Court observed: (SCC p.526, para 7) "7. When a statute is impugned under Article 14 what the court has to decide is whether the statute is so arbitrary or unreasonable that it must be struck down. At best, a statute upon a similar subject which derives its authority from another source can be referred to, if its provisions have been held to be reasonable or have stood the test of time, only for the purpose of indicating what may be said to be reasonable in the context. We proceed to examine the provisions of the said Act upon this basis."
44. It is this paragraph which is strongly relied upon by Shri Nariman. We are, however, of the opinion that the observations in the said paragraph must be understood in the totality of the decision. The use of the word 'arbitrary' in para 7 was used in the sense of being discriminatory, as the reading of the very paragraph in its entirety discloses. The provisions of the Tamil Nadu Act were contrasted with the provisions of the Land Acquisition Act and ultimately it was found that Section 11 insofar as it provided for payment of compensation in instalments was invalid. The ground of invalidation is clearly one of discrimination. It must be remembered that an Act which is discriminatory is liable Page 55 of 57 HC-NIC Page 55 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER to be labeled as arbitrary. It is in this sense that the expression 'arbitrary' was used in para 7. (emphasis supplied)"
64. From the above extract it is clear that courts in this country do not undertake the task of declaring a piece of legislation unconstitutional on the ground that the legislation is "arbitrary" since such an exercise implies a value judgment and courts do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution. To undertake such an examination would amount to virtually importing the doctrine of "substantive due process" employed by the American Supreme Court at an earlier point of time while examining the constitutionality of Indian legislation. As pointed out in the above extract, even in United States the doctrine is currently of doubtful legitimacy. Thiscourt long back in A.S. Krishna & Others v. State of Madras, AIR1957 SC 297 declared that the doctrine of due process has no application under the Indian Constitution. As pointed out by Frankfurter, J., arbitrariness became a mantra.
65. For the above reasons, we are of the opinion that it is not permissible for this Court to declare a statute unconstitutional on the ground that it is 'arbitrary'."
33. The petitioner has failed to demonstrate that Rule 6 of Rules of 1994 is framed in lack of legislative competence or the same is in any way in violation of any fundamental rights guaranteed Page 56 of 57 HC-NIC Page 56 of 57 Created On Fri Dec 30 00:55:19 IST 2016 C/SCA/16593/2016 CAV ORDER in Part III of the Constitution or of any other constitutional provisions. On the contrary, the said Rule 6 is in consonance with Article 243D of the Constitution of India. Thus, we hold that Rule 6 of Rules of 1994 is not ultra vires to the constitution, as contended.
34. In view of the aforesaid discussions, we do not find any reason whatsoever to grant the relief/s as sought for by the petitioner in the present petition and the petition being devoid of any merit deserves dismissal and accordingly it is dismissed.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 57 of 57 HC-NIC Page 57 of 57 Created On Fri Dec 30 00:55:19 IST 2016