Andhra HC (Pre-Telangana)
Komirisetty Rama Rao vs Collector, Guntur (Commissioner Of ... on 3 August, 2001
Equivalent citations: 2001(5)ALD243, AIR 2001 ANDHRA PRADESH 420, (2001) 5 ANDHLD 243
Author: Satya Brata Sinha
Bench: Satya Brata Sinha
ORDER V.V.S. Rao, J.
1. The petitioner is former Sarpanch of Ainavolu Gram Panchayat in Nujendla Mandal of Guntur District. He seeks a writ in the nature of mandamus declaring the action of the respondents, namely, the District Collector, Guntur, Revenue Divisional Officer, Narsaraopet and Mandal Panchayat Officer, Nujendla in reserving the office of Sarpanch of Ainavolu Gram Panchayat for Scheduled Castes (SC) persons instead of Pathacherukumpalem Gram Panchayat (fourth respondent herein) as illegal, arbitrary and unjust and also prays for a consequential reliefs.
2. The fact of the matter is in a narrow compass. Ainavolu was a revenue village and Pathacherukumpalem was its hamlet. In the year 1966 Pathacherukumpalem was declared as village for the purpose of Panchayat Raj Act and it became an independent Gram Panchayat whereupon two separate voters lists are prepared for these two Gram Panchayats. According to the petitioner, as per Article 243-D of the Constitution of India and relevant provisions of A.P. Panchayat Raj Act, 1994 (for short 'the Act') the offices of Appapuram, Jangalapalle, Mulakaluru and Pathacherukumpalem Gram Panchayats, which have highest population of SC, have to be reserved whereas Ainavolu Gram Panchayat is reserved wrongly in an arbitrary and illegal manner. There are only 94 voters belonging to SC in Ainavolu whereas there are 325 such voters in Pathachenikumpalem. The petitioner placed reliance on the voters' list published in 1999 for Ainavolu Gram Panchayat and Pathacherukumpalem Gram Panchayat. The percentage of SC voters to total population of Ainavolu works to 4.95% whereas the percentage of voters of Pathachenikumpalem is works out to 19.6%. Insofar as the population is concerned Pathacherukumpalem has 15-82% of SC population whereas Ainavolu has 6.344% of SC population. Therefore, it is submitted that it is improper and illegal. The writ petition was filed on 6-9-2000. This Court ordered Notice before admission. When the matter was called before this Bench on 27-7-2001, we directed the matter to be posted for admission on 31-7-2001. The learned Additional Advocate-General appearing for respondents 1 to 3 has filed a counter-affidavit and the petitioner also filed a rejoinder/reply affidavit. We have heard the matter at length and therefore the matter is being disposed of at the admission stage itself.
3. In the counter-affidavit filed by the second respondent herein it is stated that the District Census Hand Book does not contain the population figures of SCs and STs for Pathacherukumpalem village as in the case of other such villages where hamlets have been constituted as separate Gram Panchayats. Therefore, the population figures of SCs and STs have been ascertained from the Extension Officers and Divisional Panchayat Officers of the Department and the figures furnished by those officers were adopted for the purpose of making reservation to such hamlets, This is sought to be justified on the ground that during Panchayat Elections 1995 also the same method was followed.
4. The petitioner has filed a reply affidavit inter alia stating that the total population of Pathacherukumpalem Gram Panchayat comprising five hamlets is 2167, that one of the hamlets included in Pathacherukupalem Gram Panchayat known as Malapalle has population of 343 and therefore the same has to be considered as SC population in which event Pathacherukumpalem would have 15.82% of SC population.
5. The short point that arises for consideration is whether having regard to the provisions of Article 243-O of the Constitution of India whether this Court can invalidate the action of the second respondent in reserving Ainavolu Gram Panchayat for SC candidate though prima facie Pathacherukumpalem in Nujendla Mandal has higher percentage of SC population.
6. Article 243-O (a) dealing with Panchayats and Article 243-ZG dealing with Municipalities are in part materia with each other. The provision states that the validity of any law relating to delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under the constitutional provision shall not be questioned in any Court. Having regard to the plain language of the provision though judicial review which is basic feature of the Constitution cannot be taken away by a subsequent Constitutional Amendment, the scope of judicial review in such matters is very limited. In State of U.P. v. Pradan Sangh Keshetra Samiti, , interpreting Article 243-O the Supreme Court held as under:
What is more objectionable in the approach of the High Court is that although clause (a) of Article 243-O of the Constitution enacts a bar on the interference by the Courts in electoral matters including the questioning of the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be made under Article 243-K and the election to any Panchayat, the High Court has gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them.........If we read Articles 243-C, 243-K and 243-O in place of Article 327 and Sections 2 (kk), 11-F and 12-BB of the Act in place of Sections 8 and 9 of the Delimitation Act, 1950, it will be obvious that neither the delimitation of the Panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged nor the Court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. The High Court not only entertained the challenge but has also gone into the merits of the alleged grievances although the challenge was made after the notification for the election was issued on 31-8-1994.
7. The Supreme Court again considered the scope of Article 243-ZG visa-vis Courts jurisdiction in Anugrah Narain Singh v. State of U.P., , and held as under:
The answer must be emphatically in the affirmative. The bar imposed by Article 243-G is twofold. Validity of laws relating to delimitation and allotment of seats made under Article 243-ZG cannot be questioned in any Court. No election to a Municipality can be questioned except by an election petition. Moreover, it is well settled by now that if the election is imminent or well under way, the Court should not intervene to stop the election process. If this is allowed to be done, no election will ever take place because someone or the other will always find some excuse to move the Court and stall the elections. .....
8. A Full Bench of this Court in S. Fakruddin v. Government of A.P., (FB), laid down that though Article 243-O prohibits adjudication by the Courts, such prohibition does not in any way dilute the power of the High Court under Article 226 of the Constitution of India. The judgment of the Full Bench in Fakruddin's case (supra) was subject-matter of civil appeal before the Supreme Court, being CA Nos.9345-9380 of 1995. The order passed by the Supreme Court is extracted in a judgment delivered by one of us (VVSR, J.,) in Channala Ramachandra Rao v. State of A.P., . The Supreme Court Order is as follows:
It is agreed that the elections are over. The results have been declared. The successful candidates have taken the oath of office. In view of the subsequent event it is not proper for this Court to consider the matters in detail at (his stage. It is open to the aggrieved parties if so advised, to take appropriate proceedings before appropriate forum wherein all the questions raised herein can be raised. If any proceedings are initiated, the appropriate forum will decide the matter as expeditiously as possible unfettered by the judgment of the High Court. The appeals are dismissed accordingly.
9. Further, another Full Bench of this Court to which both of us were parties in a judgment dated 11-7-2001 in WP No. 13740 of 2001 also has referred to the judgment of this Court in Channala Ramachandra Rao's case (supra). Further, this Bench by judgment dated 27-6-2001 in WP No.9876 of 2001 and batch has recorded the following principles deduced in Channala Ramachandra Rao 's case qua Article 243-ZG:
(i) By reason of clause (a) of Article . 243-ZG, the Division of Municipality into territorial constituencies called wards or allotment of seats to such wards or the notification specifying the offices of Chairpersons of Municipalities reserved to persons belonging to STs, SCs., and/or BCs., cannot ordinarily be challenged under Article 226 of the Constitution.
(ii) In view of the embargo placed by clause (a) of Article 243-ZG, a law providing for delimitation of constituencies and allotment of seats to such constituencies made by the State Legislature under clause (6) of Article 243-T read with clause (2) of Article 243-ZA and the Entry 5 of List II of Seventh Schedule to the Constitution cannot be called in question under Article 226 of the Constitution.
(iii) The principles (i) and (ii) are subject to the condition that if the delimitation notification is arbitrary and in the sense that before delimitation no objections were invited and no hearing was given to a limited extent, the same is amenable to judicial review by this Court under Article 226 of the Constitution.
10. Therefore, the law may be taken as well settled that on a limited ground that before delimitation no objection was invited and no hearing was given the Court under Article 226 of the Constitution of India can review any order passed by a competent authority reserving the office of Sarpanch to SCs/STs/BCs.
11. Before we further examine this case with reference to the principles laid down by Supreme Court, we may notice relevant provisions of the Constitution of India - Article 243-D, A.P. Panchayat Raj Act, 1994 ('the Act' for brevity) and the Andhra Pradesh Panchayat Raj (Reservation of Seats and Offices of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 2001 ('the Rules' for brevity).
243-D. Reservation of seats :--(1) Seats shall be reserved for,--
(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)....
(3)....
(4)....
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.
Section 15 of the Act reads thus:
15. Reservation of office of Sarpanch :-- Out of total number of offices of Sarpanch in the State, the Commissioner shall, subject to such rules as may be prescribed, by notification reserve,--
(a) such number of offices to the Scheduled Castes and Scheduled Tribes as may be determined by him, subject to the condition that the number of offices so reserved shall bear, as nearly as may be, the same proportion to the total number of offices to be filled in the State as the population of the Scheduled Castes or as the case may be Scheduled Tribes in the State bears to the total population of the State; and such seats may be allotted by rotation to different Gram Panchayats in the State;
(b) one-third of the total number of offices of Sarpanch in the State to the Backward Classes; and such offices may be allotted by rotation to different Gram Panchayats in the State;
(c) not less than on-third of the total number of offices reserved under clauses (a) and (b) for women belonging to the Scheduled Castes, Scheduled Tribes, or as the case may be, Backward Classes; and
(d) not less than one-third (including the number of offices reserved for women belonging to the Scheduled Castes, Scheduled Tribes and the Backward Classes) of the total number of offices to be filled in the State, for women; and such offices may be allotted by rotation to different Gram Panchayats in the State.
12. The learned Additional Advocate-General submits that for the purpose of Article 243-D 'population' means the population as ascertained in the last precedent census of which the relevant figures have been published as defined in Article 243(f) as well as Section 2(29) of the Act. As the 1991 census figures for Pathacherukumpalem show that there is no SC population, the population figures were obtained from Extention Officer and the Divisional Panchayat Officer and based on them Ainavolu Grain Panchayat was reserved for SCs. He placed reliance on the District Census Hand Book as well as the statement showing particulars of SCs in various Gram Panchayats in Nujendla Mandal furnished by the Extension Officer which is counter signed by the Divisional Panchayat Officer. The learned Additional Advocate-General, therefore, submits that there is no illegality or infirmity in reserving Ainavolu Gram Panchayat for SCs. This is refuted by the learned Counsel for the petitioner. As already noticed his contention is that Pathacherukumpalem was constituted as a separate Gram Panchayat in 1966 with five hamlets and one of the hamlets Malapalle consists of population of 343 who by presumption belong to SC and therefore the particulars furnished by the Extention Officer and the Divisional Panchayat Officer are ex facie incorrect. In any event, he submits that no notice was issued to any of the Gram Panchayats or those interested to raise objections while reserving the various offices of Sarpanch of Nujendla Mandal to SCs and therefore the action of the Revenue Divisional Officer, the second respondent, is arbitrary, illegal and unsustainable.
13. As already noticed, Constitution provides that seats shall be reserved for SCs in every Panchayat and number of seats so reserved shall bear as nearly as may be same proportion to the total number of seats filled by direct election in that Panchayat as the population of SCs in that Panchayat bears to the population of that area and that such seats shall be allotted by rotation to different constituencies in Panchayat. Section 15 which is extracted above is also to the same effect. In exercise of powers conferred by sub-section (1) of Section 268 read with Sections 9, 15, 152, 180 and 181 of the Act and Article 243-D of the Constitution the Government promulgated rules known as Reservation Rules. The competent authority to make reservations in RDO who is required to make reservation of Offices of Sarpanches of Gram Panchayats in accordance with Rules 7 and 8 of the rules. As per Rule 8(2) after excluding the Gram Panchayats reserved for STs the Offices of Sarpanches shall be allotted to SCs in descending order by arranging the Gram Panchayats in accordance with the population figures which shall be based again on the last published census figures. It is not denied that the basis for such reservation during 1995 elections as well as 2001 elections is the 1991 census.
14. Admittedly, the respondents have ascertained the population figures for SCs where the census are not available and applied reservation rules. As rightly contended by the learned Counsel for the petitioner the electoral rolls prepared in 1999 were based on 1991 census and whether Pathacherukumpalem Gram Panchayat consists of SC population or any of its hamlets consists of SC population, the fact remains that as per Section 14 of the Act all the persons whose names appeared in the electoral roll for Gram Panchayat shall elect Sarpanch of the village. Therefore, by necessary corollary the population figures of SCs in any of five hamlets of Pathacherukumpalem cannot be ignored. It appears, to our mind the Extension Officer and Divisional Panchayat Officer have without any reason reported that there are no SC population figures for Pathacherukumpalem Gram Panchayat as per census. The respondents ought to have taken into consideration the SC population figures in all the five hamlets of Pathacherukumpalem Gram Panchayat.
15. Further, the learned Additional Advocate-General is not able to deny the allegation that no notice was issued to the petitioner or likes of him belonging to Ainavolu Gram Panchayat for reserving the office of Sarpanch, to SC. Even from the statement filed along with the counter-affidavit showing the particulars SCs in descending order it does not appear that any such notice was issued to Ainavolu Gram Panchayat.
16. Section 15 as well as the rules referred to hereinabove are silent as to whether notice is required before reserving wards and offices of Sarpanches for SCs, STs and BCs etc. The procedure contemplated for reserving for SCs is a complicated exercise which is to be made having regard to the population figures of SCs, STs and BCs and shall have to be done by rotation in descending order. In our opinion, unless the interested parties are given an opportunity atleast by way of general notice, the element of peoples participation in these matters stand excluded and likely to result in errors. Such errors could be the same ward or office being reserved for second time in which case the constitutional mandate under Article 243-D to reserve wards and offices by rotation would be violated. Likewise, when the respondents have adopted the method of ascertaining the SC population figures from the Extention Officer and Divisional Panchayat Officer, any notice to Ainavolu Gram Panchayat or the interested parties would have prevented the said Gram Panchayat from being reserved for SCs.
17. In Baldev Singh v. State of H.P., , and Pradhan Singh's case (supra) it was held that people who will be effected by the changes in the local administration should be given opportunity of being heard otherwise they would be visited with serious consequences. Indeed, in Pradhan Singh's case which arose under Part-IX of the Constitution of India the Supreme Court held that delimitation of the Panchayat area or allotment of seats to the constituencies without affording an opportunity to raise objections and without giving opportunity of being heard can be challenged under Article 226 of the Constitution of India. Referring to these two judgments the Supreme Court in yet another case Saij Gram Panchayat v. State of Gujarat, , held as under:
In such circumstances, it is necessary that people who will be affected by the change should be given an opportunity of being heard otherwise they would be visited with serious consequences like loss of office in Gram Panchayats, an imposition of a way of life, higher incidence of tax and the like. Although the section did not, in clear terms, provide a right of hearing, the Court held that denial of such an opportunity was not in consonance with the scheme of the rule of law governing our society. A similar view has been taken in State of U.P v. Pradhan Sangh Kshettra Samiti . In this case, delimitation of Panchayat areas and Gram Sabhas under the U.P Panchayat Raj Act of 1947 was considered by this Court. It said that an opportunity of being heard should have been given to the people of the areas concerned. In that case, action having already been taken without giving an opportunity of hearing, in view of the urgency, a post-decisional hearing was considered as sufficient compliance with the principle of audi alteram partem.
18. Therefore, we are convinced that there is force in the submission made by the learned Counsel for the petitioner. Nonetheless, having regard to the provisions of 243-K of the Constitution of India whereunder superintendence, direction and conduct of elections to Panchayats is vested in the State Election Commission, we deem it proper to request the State Election Commission to consider the representation of the petitioner expeditiously within a period of one week from today and take such decision including postponing the election or changing the reservation in tune with the provisions of the Constitution of India and the Act and the rules. The petitioner shall be at liberty to approach the State Election Commission by making a representation. Needless to add the State Election Commission may decide the issue having regard to the observations made in this judgment.
19. The writ petition is accordingly disposed of. In the circumstance of the case, there shall be no order as to costs.