Uttarakhand High Court
Unknown vs State Of Uttarakhand And Others on 18 September, 2019
Author: Alok Kumar Verma
Bench: Ramesh Ranganathan, Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (PIL) No.130 of 2019
Lal Bahadur Kushwaha
..........Petitioner
Vs.
State of Uttarakhand and others ...........Respondents
Presents:-
Mr. Jitendra Chaudhary, learned Advocate for the petitioner.
Mr. Pradeep Joshi, learned Standing Counsel for the State of
Uttarakhand/respondent Nos.1 to 3.
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Ramesh Ranganathan, C.J. (Oral) The petitioner, a public spirited citizen, has invoked the jurisdiction of this Court under Article 226 Constitution of India seeking a writ of certiorari to quash the government notification dated 22.08.2019, issued by the second respondent-In-charge Secretary, Panchayati Raj Uttarakhand; a writ of mandamus commanding the respondent-State Government to complete the reservation process for rural local bodies/three tier panchayat elections on the basis of the government notification dated 13.08.2019 along with the provisions contained in Article 243-D of the Constitution of India read with the Uttar Pradesh Panchayat Raj (Reservation and Allotments of Seats and Offices) Rules, 1994 and the Uttar Pradesh Kshetra Panchayat and Zila Panchayat (Reservation and Allotments of Seats and Offices) Rules, 1994 as adopted and modified by the State of Uttarakhand respectively; and a writ of mandamus commanding the respondent-State Government, and the State Election Commission, to complete the election process of the three-tier panchayats in the entire State of Uttarakhand (except District Haridwar) as per the 2 mandate of the decision given in WPPIL No. 101 of 2019 dated 01.08.2019.
2. Facts, to the limited extent necessary, are that elections to Panchayat Raj Institutions in the State of Uttarakhand was held for the first time in the year 2003, and was followed by the panchayat elections held in the years 2008 and 2014. The elections now scheduled to be held is the fourth round of Panchayat Raj Elections in the State. This fact is recognised in the Government notification dated 13.08.2019 which prescribes rotation in reservation of territorial constituencies. However, by the subsequent notification dated 22.08.2019, the State Government clarified that, while reservation of seats by rotation would apply to existing constituencies; newly constituted constituencies would be treated as new constituencies and, while reservation would be applied as such, there would no rotation in reservation.
3. The said notification 22.08.2019 stipulates that, in the event of a territorial constituency being completely new or being elected from the territorial constituencies (ward) of Gram Panchayat or being converted with 50% or more families of the total number of constituent families, allotment of places in these territorial constituencies would be done afresh by following a descending order of the concerned category; for such territorial constituencies, reservation and allotment, made in earlier elections, would not be taken into consideration; and the same would apply for territorial constituencies of Kshetra Panchayats which were converted with 50% or more families of the present territorial constituencies, and likewise for the Zila Panchayats. The notification dated 22.08.2019, in effect, stipulates that, where the territorial constituency of a Gram Panchayat or a Kshetra 3 Panchayat or a Zila Panchayat has changed with 50% or more families of the erstwhile territorial constituency, the resultant territorial constituency would then be treated as a new constituency, and reservation would be provided afresh, and not by applying the fourth round of reservation. In short, the provision of rotation would not apply to these newly constituted territorial constituencies.
4. Mr. Jitendra Chaudhary, learned counsel for the petitioner, would submit that, in terms of Article 243-D of the Constitution read with the Uttar Pradesh Panchayat Raj Act, 1947, and the Uttar Pradesh Kshetra Panchayat and Zila Panchayat (Reservation and Allotments of Seats and Offices) Rules, 1994, for reservation of the allotted seats, the present fourth round of Panchayat Raj elections should provide uniformly for rotation in reservation for all territorial constituencies; Rule 4 of the 1994 Rules prescribes an elaborate procedure for reserving seats in favour of women, the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes; it provides specifically for rotation of seats reserved in favour of the aforesaid categories in all Panchayat Raj elections; the said Rules make no distinction between old and new territorial constituencies; the notification dated 22.08.2019 has not been issued in compliance with the 1994 Rules; the State Government lacks power to issue the said notification as it falls foul of the 1994 Rules which are still in force; and since the writ petition was filed before the election notification was issued on 13.09.2019 the bar, under Article 243-O(b) of the Constitution, would not apply.
5. On the other hand, Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand, would submit that the notification dated 22.08.2019 is merely a clarification 4 of the earlier notification dated 13.08.2019; such a clarification was necessitated since the District Panchayat Raj Officer, Udham Singh Nagar, had, vide his letter dated 20.08.2019, sought directions regarding implementation of reservation, and allotment of seats for Gram Panchayats, Kshetra Panchayats and Zila Panchayats, which were recently included or excluded from the existing local bodies; it is in such circumstances, that the Government had clarified, by its proceedings dated 22.08.2019, that, in the case of completely new territorial constituencies, or in case the change in the composition of the constituency exceeds 50% of the families of the Gram Panchayat, it would be deemed to be a new territorial constituency, and allotment of the concerned category/class would be determined afresh in the descending order; the earlier reservation and allotment would not be taken into consideration; and similar would be the case for determination of allotment and reservation of seats in the new territorial constituencies of Kshetra Panchayats and Zila Panchayats; there may not be any specific provision in this regard in the 1994 Rules, as they do not deal with a situation like the one which arises for consideration in this writ proceedings; and, in the absence of any statutory provision, be it plenary or subordinate, the Government can always issue orders under Article 162 of Constitution of India.
6. Article 243-D provides for reservation of seats, and requires such seats to be allotted by rotation in the territorial constituencies of all three tiers in the Panchayats. While an elaborate procedure has been prescribed in the 1994 Rules, as to how reservation is required to be provided for the newly constituted territorial constituencies, and the manner in which reservation of seats should be rotated in such constituencies in the subsequent elections, the 1994 Rules do 5 not provide for a situation where the existing territorial constituencies are reorganised, and a new territorial constituency is established in its place. It is in such circumstances that a clarification was necessitated, and was issued by way of the clarificatory notification dated 22.08.2019. It is only in cases where the composition of a particular territorial constituency has so drastically changed as to result in its not, any longer, being capable of being identified with the previous territorial constituency, is such a territorial constituency required to be treated as a new constituency for which reservation is required to be provided afresh, in as much as reservation by rotation cannot be provided for such constituencies. This peculiar situation was not in contemplation under the 1994 Rules. In this context, it must be borne in mind that reservation of seats in Gram Panchayats are made either by plenary legislature or in terms of the Rules made under the Act made by the State Legislature.
7. Entry 5 of List II of the VII Schedule to the Constitution confers power on the State Legislature to make laws with respect to Panchayats. The State Government has the power, under Article 162 of the Constitution, to issue execution orders on all matters with respect to which the legislature of the State has the power to make laws. In B.N. Nagarajan and others Vs. State of Mysore AIR 1966 Supreme Court 1942, the Supreme Court held that the State Government has the executive power, in relation to all matters with respect to which the legislature of the State has power to make laws; and while the executive must abide by an Act or a Statutory Rule, and cannot exercise its executive power under Article 162 contrary thereto, it can undoubtedly exercise its powers where there exists no legislation-plenary or subordinate.
68. Again in Sant Ram Sharma Vs. State of Rajasthan and others, AIR 1967 Supreme Court 1910, the Supreme Court, following its earlier judgment in "B.N. Nagarajan and others Vs. State of Mysore", held that the State Government has the executive power, in relation to all matters with respect to which the legislature of the State has power to make laws; and till statutory provisions are made in this behalf, the Government can always exercise its executive power under Article 162 of the Constitution. It is evident, therefore, that as there is no specific provision in this regard in the 1994 Rules, the State Government was justified in exercising its executive power under Article 162 of the Constitution of India.
9. Even, otherwise, Article 243-O(b) in Part-IX of the Constitution provides that, notwithstanding anything in the Constitution, no election to any Panchayat shall be called in question except by an election petition presented to such authority, and in such manner as is provided for by or under any law made by the Legislature of a State. Article 243-O-(b) is similar to Article 329(b) of the Constitution. The word "elections" in Article 329(b) has been held by the Supreme Court, in N.P. Ponnuswami Vs. The Returning Officer, Namakkal Constituency, Namakkal Salem Dist. and others AIR(39) 1952 SC 64, to embrace the whole procedure of election, and as not confined to the final result thereof; and the bar, under Article 329(b), to apply to the elections process in its entirety.
10. In Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others AIR 1978(1) SCC 405, the Supreme Court held that every step, from start to finish of the total process, constituted an "election" and not merely the conclusion or culmination; the 7 rainbow of operations covered by the compendious expression "election" commenced from the initial notification and culminated in the declaration of the returned candidate; Article 329(b) was a blanket ban to litigative challenges to electoral steps taken by the Election Commission and its officers, for carrying forward the process of election to its culmination in the formal declaration of the result; and the bar in question, regarding elections under Article 329(b), would also include the constitutional remedies under Article 226 of the Constitution of India.
11. The law laid down by the Supreme Court, in L. Chandra Kumar Vs. Union of India Supreme Court 1125, is that the power of judicial review, under Article 226 of the Constitution of India, is a basic feature of the Constitution. As a result, such a power cannot be negated or circumscribed even by an amendment to the Constitution, much less by legislation-plenary or subordinate. While it is debatable whether the High Court, in the exercise of the jurisdiction under Article 226 of the Constitution of India, is barred from entertaining any such challenge, the fact remains that interference by the High Court would not be as a matter of course, but only in exceptional circumstances. We are satisfied that the present case is not one such.
12. The clarificatory notification dated 22.08.2019 was necessitated by the fact that the 1994 Rules do not provide for rotation in reservation for the newly constituted territorial constituencies. The State Government was justified, therefore, in issuing necessary clarifications directing that only such of those territorial constituencies, where there is a change in its composition exceeding 50% of the families, should be treated as a new territorial constituency; and such a clarification is 8 neither arbitrary nor illegal. We see no reason, therefore, to quash the notification dated 22.08.2019, or to interfere with the election process on this ground.
13. The writ petition fails and is, accordingly, dismissed. No costs.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, CJ.) 18.09.2019 Sanjay/ NEHA