Patna High Court
Shailendra Kumar Singh & Anr vs The State Of Bihar & Ors on 11 May, 2016
Author: Anjana Mishra
Bench: Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2575 of 2016
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1. Shailendra Kumar Singh, son of Sri Shiv Shankar Prasad Singh, Resident of
Village- Gopalpur, P.O. Nandpur Suryagarha, P.S. Suryagarha (O.P. Manikapur)
District Lakhisarai.
2. Ghani Haidar, son of Late Abdur Rahman, Resident of Village- Nimrauli, P.O.
Alimabad Nimrauli, P.S Kamtaul, District- Darbhanga.
.... .... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Panchayati Raj Department, Government of Bihar,
Patna.
3. The District Magistrate, Darbhanga.
4. The District Magistrate, Lakhisarai.
5. The Block Development Officer, Jale, District- Darbhanga.
6. The Block Development Officer, Suryagarha, District- Lakhisarai.
7. The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel Path,
Patna through the State Election Commissioner.
8. The State Election Commissioner, the State Election Commission (Panchayat),
Sone Bhawan, Birchand Patel Path, Patna.
9. The Secretary, the State Election Commission (Panchayat), Sone Bhawan,
Birchand Patel Path, Patna.
.... .... Respondent/s
WITH
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Civil Writ Jurisdiction Case No. 4614 of 2016
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Shailendra Kumar Singh, son of Shiv Shankar Prasad Singh, Resident of Village-
Gopalpur, P.O. Nandpur Suryagarha, P.S. Suryagarha (O.P. Manikapur) District
Lakhisarai.
.... .... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Law Secretary, Law Department, Government of Bihar, Patna.
3. The Principal Secretary, Panchayati Raj Department, Government of Bihar,
Patna.
4. The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel
Path, Patna through the State Election Commissioner.
5. The State Election Commissioner, the State Election Commission (Panchayat),
Sone Bhawan, Birchand Patel Path, Patna.
6. The Secretary, the State Election Commission (Panchayat), Sone Bhawan,
Birchand Patel Path, Patna.
.... .... Respondent/s
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Appearance :
(In CWJC No. 2575 of 2016)
For the Petitioner/s : Mr. Shashi Bhushan Kumar Manglam, Advocate
Mr. Amarendra Kumar, Advocate
Mr. Ravi Parmar, Advocate
For the Respondent-State: Mr. P.K. Verma, AAG-5
Mr. Suman Kumar Jha, A.C. to AAG-5
For the Respondent-Election
Commission : Mr. Amit Srivastava, Advocate
Mr. Sanjeev Nikesh, Advocate
For the Intervenor : Mr. Deepak Kumar Sinha, Advocate
(In CWJC No. 4614 of 2016)
For the Petitioner/s : Mr. Shashi Bhushan Kumar Manglam, Advocate
For the Respondent-State : Mr. P.K. Verma, AAG-5
===========================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
and
HONOURABLE JUSTICE SMT. ANJANA MISHRA
CAV JUDGMENT
(Per: HONOURABLE JUSTICE SMT. ANJANA MISHRA)
Date: 11 -05-2016
The two writ applications, which have come up by way
of Public Interest Litigation, involving identical issue, have been
heard together and are being disposed of by this common judgment
and order.
2. For the sake of convenience, we take up the facts of
the writ application bearing CWJC No.2575 of 2016 into account.
By this application, the writ petitioners have sought for quashing
paragraph Nos.9 and 10 of Letter No.2144, dated 17.12.2015,
issued to all District Magistrates-cum-District Election Officers
(Panchayat) of the State of Bihar, whereby direction has been
issued by the State Election Commission that after reservation of
posts for the Scheduled Caste and Scheduled Tribe in descending
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order of their population in a particular territorial constituency,
seats shall be reserved for Backward Classes in the descending
order of total population of the remaining territorial constituencies.
The writ petitioners have impugned the direction aforementioned
on the ground that the said direction is contrary to the provisions
made under Article 16 of the Constitution of India inasmuch as the
same is violative of the provisions contained under Article
243D(3) of the Constitution of India read with Sections 15(5),
38(1) and 65(1) of Bihar Panchayat Raj Act, 2006.
3. The facts, giving rise to the present case, are as
follows :
(i) By virtue of 73rd Amendment of the Constitution of
India by the Act of 1992, the concept and scheme of Panchayat
was introduced and the same provided for reservation of seats for
Scheduled Castes and Scheduled Tribes in every Gram Panchayat.
The State Legislature has also enacted Bihar Panchayat Raj Act,
2006, wherein provisions for reservation of seats, in the Panchayat,
were introduced for the Scheduled Caste, Scheduled Tribe and
Backward Classes.
(ii) Under Section 15(5) of the Bihar Panchayat Raj
Act, 2006, provisions were made for reservation to the post of
Mukhiya; whereas under Section 38(1), reservation of seats for
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Panchayat Samiti and, under Section 65(1), provisions for
reservation of seats for Zila Parishad were made.
(iii) Bihar Panchayat Raj Act, 2006, came into force
providing for rotation of reservation after two consecutive general
elections under the supervision, direction and control of the State
Election Commission.
(iv) The second proviso to Rule 11 provides that in the
first election for the purposes of allotment of constituency
admissible to different categories, allotment of constituencies shall
be made in the order of Scheduled Caste, Scheduled Tribes and
Others and, for allotment of remaining constituencies, the same
order shall be repeated.
(v) The third proviso to Rule 11 provides that in the
second election, for the purpose of allotment of constituency
admissible to different categories, allotment of constituency shall
be made in the order of Scheduled Tribe, Backward Classes,
Others and Scheduled Caste and for the allotment of remaining
constituency, the same order shall be repeated.
(vi) After coming into force of the Bihar Panchayat Raj
Act, 2006, the first election was held in the year 2006, wherein
seats were reserved for different classes in the order as provided in
the second Proviso to Rule 11.
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(vii) The State Election Commission has issued the
impugned guidelines for rotation of reservation in respect of 2016
Panchayat Election. Paragraph No.10 of the said instruction directs
that it shall be made in the order of Others, Scheduled Caste and
Scheduled Tribes, which is contrary to the third proviso to Rule 11.
4. Petitioner No.1, being a resident and voter in the
district of Lakhisarai, contends that there are 11 Zila Parishad
Constituencies and out of these constituencies, Territorial
Constituency Nos.1 and 11 were reserved for Backward Classes;
whereas Territorial Constituency Nos.3 and 9 were reserved for
Scheduled Castes and Territorial Constituency Nos.4, 7 and 10
were reserved for Female of unreserved class; whereas Territorial
Constituency Nos.2, 5, 6 and 8 were unreserved.
5. The grievance arose as under Jale Block in the
District of Lakhisarai, there are 26 Gram Panchayats. It was
pointed out that Territorial Constituency No.13, which was
reserved for Backward Classes in 2006 and 2011 Elections, has
been proposed to be reserved for Scheduled Castes for 2016
Elections. Similarly, Territorial Constituency No.10, which was
earlier reserved for Scheduled Caste, has, now, been recommended
to be reserved for Backward Classes; whereas Territorial
Constituency Nos.2, 7, 23 and 25, which were not reserved for any
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of the categories, remain unreserved in 2016 Election.
6. Drawing the attention of the Court, it is contended
by Shri S.B.K. Manglam, learned counsel for the petitioners, that
in 2016 Panchayat Elections, Territorial Constituency No.1 has,
again, been reserved for Unreserved Females, which was earlier
reserved for Backward Class and similar is the position of
Territorial Constituency No.3. Territorial Constituency No.9 has,
now, been reserved for females of Backward Class, which was
earlier reserved for Scheduled Caste Female. Similar is the
position in respect of Territorial Constituency Nos.10 and 11. It is
pointed out that Territorial Constituency No.10, which was earlier
reserved for unreserved Female, has, now, been reserved for
Scheduled Caste Females; whereas Territorial Constituency No.11,
earlier reserved for Backward Class Female, has, now, been
reserved for unreserved Female.
7. In the result, it was pointed out by the learned
counsel for the petitioners that Territorial Constituency Nos.9 and
11 are either to be reserved for Scheduled Castes or Backward
Classes in view of the impugned guidelines of the State Election
Commission. In other words, the Scheduled Caste and Backward
Class of the remaining constituencies would never be benefited
even if the process of rotation of reserved constituencies would be
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adopted for two consecutive elections. Ultimately, the reserved
constituency will remain unreserved.
8. It is contended by the learned counsel for the
petitioners that if the instruction, issued by the State Election
Commission, is permitted to be continued, the object of the Act of
1992 and the Bihar Panchayat Raj Act, 2006, would not be
achieved.
9. Answering the contentions of the petitioners, Shri P.
K. Verma, learned Additional Advocate General No.5, while
referring to the stand of the Principal Secretary, Panchyati Raj
Department, Govt. of Bihar (respondents No.2), has submitted that
the scheme for reservation of seats of the Panchayat is laid down in
Article 243D of the Constitution of India; the extract of the Article
243D is reproduced below :
―243D. 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
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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 the State:
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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.‖
10. It is submitted that the Bihar Panchayat Raj Act,
2006, enacted by the State Legislature of Bihar provides for
reservation of seats in Panchayats at all the three levels and Gram
Katchahry. The relevant Sections, dealing with the issue of
reservation of seats, are Sections 13, 15, 95, 38, 40(2), 65, 67(2),91
and 93(5) of the Act, 2006.
11. The Bihar Panchayat Raj Act, 2006, was enacted
after repealing the previous Act, namely, the Bihar Panchayat Act,
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1993. The Bihar Panchayat Election Rules, 2006, have been
framed to implement the provisions of the Act of 2006, repealing
the previous Bihar Panchayat Election Rules, 1996.
12. In the Bihar Panchayat Election Rules, 2006, three
rotational orders have been prescribed for rotational allotment of
reserved electoral constituencies of Panchayats and Gram
Katchahry.
First Rotational Order - SC, ST, Others
Second Rotational Order - ST, Others, SC
Third Rotational Order - Others, SC, ST
13. It is submitted that the First Rotational Order (i.e.,
SC, ST, Others) was adopted in the first Panchayat general election
held in the year 2001, under the provisions of the Bihar Panchayat
Raj Act, 1993, and the Bihar Panchayat Election Rules, 1996,
made thereunder. The Bihar Panchayat Raj Act, 1993, earlier
provided for rotation after every Panchayat General Election, the
term of the Panchayat not exceeding five years.
14. The second Rotational Order (ST, Others, SC) was
adopted in the second Panchayat general election, in the year 2006,
under the provisions of the new Bihar Panchayat Raj Act, 2006,
and the Bihar Panchayat Elections Rules, 2006, made thereunder.
The Rules, 2006, provided that the election, held in the year 2001,
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under the provisions of the repealed Bihar Panchayat Raj Act,
1993, shall be treated as the first election for the purposes of the
rotational order. On this basis, the election, held in the year 2006,
was treated as the second election and, accordingly, the allotment
of electoral constituencies of Panchayats was done on the basis of
second rotational order, i.e., ST, Others, SC.
15. No elections were held for Gram Katchahry in the
year 2001. The elections to Gram Katchahry were held, for the
first time, in the year 2006. Hence, allotment of reserved electoral
constituencies of Gram Katchahry was done on the basis of the
First Rotational Order SC, ST, Others as provided in the Rules,
2006.
16. It is pointed out by Shri P.K. Verma, learned
Additional Advocate General No.5, that subsequently, by an
amendment, through the Bihar Panchayat Raj (Amendment) Act,
2009, provisions have been made in the Bihar Panchayat Raj Act,
2006, that the rotational orders, henceforth, will be followed after
two consecutive general elections and the first election, for this
purpose, will be the election held for the first time after coming
into effect of the Bihar Panchayat Raj Act, 2006 (i.e., the
Panchayat General Election, 2006). Thus, on the basis of this
amendment, no change could be made in the status of reserved
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electoral constituencies in Panchayat General Election, 2011.
17. Since the Second Rotational Order (i.e., ST, Others
and SC) has already been adopted in the Panchayat General
Election, 2006/2011, it is natural and expedient that the next
Rotational Order (i.e., Others, SC and ST) should be adopted in the
case of Panchayat in the Panchayat General Election, 2016. As per
the Amendment Act, 2009, this rotational order will continue to
hold good in the next Panchayat General Election, 2021, and will
only change at the time of Panchayat General Election to be
conducted in the year 2026.
18. The first election to Gram Katchahry was held in
the year 2006, when the first Rotational Order (i.e., SC, ST and
Others) was adopted. The same order remained in the year 2011,
because of the provisions made through the Amendment Act,
2009. It is in the natural scheme of things that in the year 2016, the
second Rotational Order (i.e., ST, Others and SC) has been
adopted for allotment of reserved constituencies in Gram
Katchahry.
19. We have heard learned counsel for the parties at
length.
20. For resolving the issue in respect of reservation
and allotment of seats in Panchayats/Gram Katchahries, Rules 9,
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10 and 11 of the Bihar Panchayat Election Rules, 2006, and
allotment of seats in the Panchayats/Gram Katchahries are
reproduced below:
―Rule 9 - Determination of seats for reservation in
the constituencies :-
(1) Separate electoral constituencies shall be
reserved for and allotted to the members of the
Scheduled Castes, Scheduled Tribes, Backward
Classes and Women of these categories subject
to the Sections 13, 15, 38, 40, 65, 91 and 93 of
the Act respectively for election of Member of
Gram Panchayat, Mukhiya, Member of
Panchayat Samiti, Pramukh, Member of Zila
Parishad, Panch and Sarpanch of Gram
Katchahry by the District Magistrate under the
direction, control and supervision of the State
Election Commission.
(2) For election of the Chairman (Adhayaksh) of
Zila Parishad, separate electoral constituencies
shall be reserved for and allotted to the members
of the Scheduled Castes, Scheduled Tribes,
Backward Classes and Women of these
categories, subject to Section 67 of the Act, by the
State Election Commission.
(3) After reservation and allotment of seats to the
Scheduled Castes and the Scheduled Tribes under
sub-rule (1) the number of seats out of the
remaining seats to be reserved for the persons of
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the Backward Classes and women of these classes
shall be as nearly as possible but not exceeding
twenty percent of the total seats, subject to the
overall limit of fifty percent reservations for all
categories and allotment of those to be made in
descending order of the total population of the
remaining constituencies by the District
Magistrate under the direction, control and
supervision of the State Election Commission.
Similarly, separate constituencies shall be
reserved and allotted by the State Election
Commission to the Backward Classes and Women
of this category (in descending order of the total
population of the remaining constituencies) under
section 67 of the Act for election to the post of
Adhayaksh of Zila Parishad.
Provided that in case of population of more
than one electoral constituencies being equal to
the constituency coming first in the order of serial
number shall be reserved for that category.‖
xxx xxx xxxx xxxx
―Rule 10. Procedure of calculation of the number
of posts for the purpose of reservation:-The
calculation of the number of posts of Panchayat
for the purpose of reservation shall be made in
accordance with the procedure prescribed by the
State Election Commission.‖
xxx xxx xxxx xxxx
"Rule 11.Allotment of the Constituencies for
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Scheduled Castes, Scheduled Tribes, Backward
Classes and other categories in Panchayats.
(1) As far as possible, only such constituencies
shall be allotted to different categories in
admissible number and in rotation whose
population, on the basis of calculation in the
descending order by the District Magistrate, is
found comparatively higher than other
categories; provided that, as far as possible,
those constituencies out of the remaining
constituencies as prescribed in sub-rule (3) of
Rule 9, shall be allotted to the Backward
Classes category in admissible number and on
rotational basis whose population comes first
in descending order of their (of the remaining
constituencies) total population.
Provided that, in the first election for the
purpose of allotment of constituencies admissible
to different categories, allotment of constituencies
shall be made in the order of Scheduled Castes,
Scheduled Tribes and Others and for the
allotment of the remaining constituencies, the
same order will be repeated.
Provided further that, in the second election
for the purpose of allotment of constituencies
admissible to different categories, allotment of
constituencies shall be made in the order of
Scheduled Tribes, Backward Classes, others anti
Scheduled Castes and for the allotment of the
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remaining constituencies, the same order will be
repeated;
Provided further that, in the third election
for the purpose of allotment of constituencies
admissible to different categories, allotment of
constituencies shall be made in the order of
Backward Classes, Others, Scheduled Castes and
Scheduled Tribes and for the allotment of the
remaining constituencies, the same order will be
repeated.
The same rotation shall be followed for the
allotment of constituencies in subsequent
elections.
(2) Allotment of constituencies in Gram
Katchahry- The system of rotational allotment
prescribed in sub-rule (1) shall be applicable
to Gram Panchayat, Panchayat Samiti and
Zila Parishad only. In case of Gram
Katchahry the election conducted under the
Act shall be deemed to be the first election. In
the first election of Gram Katchahry, the order
of Scheduled Castes, Scheduled Tribes,
Backward Classes and others shall be
followed for allotment of electoral
constituencies in admissible numbers to
different categories whereas in the second
election the order shall be Scheduled Tribes,
Backward Classes, Others land Scheduled
Castes and in the third election Backward
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Classes, Others, Scheduled Castes and
Scheduled Tribes, and this order shall be
repeated for allotment of the rest of the
electoral constituencies.
(3) A reserved constituency shall not be reserved
for the same category in the next election.
Provided that, if any constituency was
reserved for women of any particular category, in
the next election that constituency may be
reserved for women of a different category.
Provided further that if any constituency
was reserved for women in other (Unreserved)
category, in the subsequent election, it shall not
be reserved for women in other (unreserved)
category.
But if there is no alternative, the allotted
constituency of any particular category in the
previous election may be re-allotted to the same
category in the subsequent election.‖
21. The provisions of Section 138 of the Act of 2006,
being also relevant, are reproduced hereunder:
―138. Bar to interference by Courts in electoral
matter- Notwithstanding anything contained in
this Act--
(a) The validity of any law relating to the
delimitation of constituencies or the allotment of
seats to such constituencies, made or purporting
to be made under Article 243 K of the
Constitution of India shall not be called in
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question in any Court;
(b) No election to any Panchayat shall be called
in question except by an election petition
presented to the prescribed authority under this
Act.‖
22. Under the provisions of Section 123 of the Bihar
Panchayat Raj Act, 2006, it is the State Election Commission,
Bihar, which has the power of superintendence, direction and
control over the entire electoral process concerned with
Panchayats and Gram Katchahries in the State of Bihar. Further,
under the provisions of Rules 9 to 18 of the Bihar Panchayat
Election Rules, 2006, the subject of Reservation/allotment of
constituencies is within the exclusive jurisdiction of the State
Election Commission. Hence, we agree with the contention of the
learned Additional Advocate General No.5 that the points, raised
in the writ petition with regard to reservation for specific
constituencies/posts, are to be answered by the State Election
Commission and the concerned District Magistrate-Cum-District
Election Officer (Panchayat).
23. The State Election Commission has filed its affidavit
stating therein that the Bihar Panchayat Raj Act, 1993, came into
force on 04.09.1993. The election, for the posts of Members of
Zila Parishad, Mukhiya, Members of Panchayat Samiti and Ward
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Members, were held, for the first time, in April, 2001, but elections
for the posts of Panch and Sarpanch could not be held as the matter
was subjudice.
24. In the year 2001, reservation for election was made
for the Members of Zila Parishad, Members of Panchayat Samiti
and Ward Members. It is submitted that in view of Bihar
Ordinance No.1 of 2006, the State Election Commission issued a
direction, on 19.01.2006, to all the District Magistrates regarding
reservation of seats as per 2006 Ordinance and, on 10.04.2006, the
Act of 2006 was notified. As the election for the post of the
Members of Zila Parishad, Members of Panchayat Samiti and
Ward Members had already been held in the year 2001, the
reservation, in respect of the said posts, was made in terms of the
second Proviso to Rule 11 read with Explanation given under
Sections 13, 15, 38, 40, 65, 67, 91 and 93 of 2006 Act.
Accordingly, the rotational order of ST, Others, S.C. was followed.
However, since no election for the post of Panch and Sarpanch
were held in 2001, Rotational Order of first Proviso to Rule 11 of
the Rules, 2011 was followed, in 2006 election, for S.C., S.T.
Others.
25. The State Election Commission further averred that
the Legislature has amended the provisions of Sections 13, 15, 38,
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40, 65, 67, 91 and 93 of the 2006 Act making it clear that
(i) the rotational order will be followed after two
consecutive elections.
(ii) the first election, for this purpose, will be the
election held, for the first time, after coming into effect of Bihar
Panchayat General Election, 2006.
26. It is further contended that in view of the
amendments made in the aforesaid sections in the year 2009, the
rotation, in the order of S.C., Others and S.C., has already been
adopted in the Panchayat Elections held in the year 2006 and 2011.
It is, thus, lawful that the rotational order of others, S.C. and S.T.
be adopted in the case of Panchayats in the Panchayat Elections,
2016.
27. The present litigation was considered at length and
the parties have made their submissions before this Court. While
the State Election Commission has tried to persuade this Court that
the rotational order, adopted by the State Election Commission, in
the present context, is lawful and legal, the petitioners, by referring
to 2009 Amendment Act, have submitted that rotation, for election
2006, shall be treated to be the first election in accordance with the
second Proviso to Rule 11 in view of the 2009 Amendment Act
and corresponding amendments in the aforementioned Sections.
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28. Having considered the rival submissions, this
Court, upon due consideration of 2009 Amendment, is of the view
that the Amending Act, 2009, having clearly provided that for the
purpose, under discussion, elections, held in 2006, would be the
first election and, therefore, the submission of the State Election
Commission stating that in view of the reservations made in 2001,
the first election would be 2001 is fit to be repelled.
29. After hearing the parties and in view of the
importance attached to the Public Interest Litigation, which is of
considerable significance and has wide reaching consequence, the
order was reserved on 24.2.2016. However, in the wake of certain
developments, which were brought to our notice, the matter was,
once again, re-opened by this Court on 03.03.2016 and the case
was released from CAV on the filing of an interlocutory
application bearing I.A. No. 1880 of 2016.
30. In I.A. No.1880 of 2016, it was pointed out to this
Court that some amendments, in Bihar Panchayat Election Rules,
2006, have been made, which had been set in motion in May,
2015, itself. The amendments were necessitated in view of the
amendments effected in the Bihar Panchayat Raj Act, 2006,
through the Bihar Panchayat Raj (Amendment) Act, 2009.
Accordingly, the said amendments were placed before the Council
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of Ministers in its meeting held on 26.2.2016 and was approved by
the State. The same has since been published in the Bihar Gazette
on 26.02.2016 (Annexure B). It is also pointed out that the State
Cabinet, in its meeting held on 23.2.2016, has decided to conduct
the Panchayat/Gram Katchahry General Elections, 2016, and
Notification No.6Pa/Pan.ni-01/2016/1406/P.R., dated 25.2.2016
(Annexure A), has been issued. Learned counsel for the State has
submitted that in view of the said Bihar Panchayat Election Rules,
2006, the previously applicable Rules stand duly amended and
have been brought in consonance with the instructions of the State
Election Commission, Bihar, as contained in paragraphs 9 and 10,
issued vide Commission's Letter No. 2144, dated 17.12.2015
(impugned order). Learned counsel for the respondent State, thus,
submitted that in view of the aforementioned amendments, the writ
application has, now, become infructuous and be disposed of
accordingly.
31. Simultaneously, two interlocutory applications have
been filed by the petitioners bearing I.A. No.1934 of 2016 and I.A.
1935 of 2016.
32. By I A. No. 1934 of 2016, the petitioners have
prayed for stay of the notification, dated 25.2.2016, published in
the Bihar Gazette (Extraordinary), dated 25th February, 2016,
Patna High Court CWJC No.2575 of 2016
23/27
whereby and whereunder, it has been notified that Panchayat
Election, 2016, in the State, which was to be conducted in ten
phases would be held beginning from 24.4.2016. According to the
said notification, the process of nomination would commence from
2.3.2016and would continue thereafter. Hence, it was in the exigency of the situation that the notification be stayed.
33. The second I.A.1935 of 2016 seeks to make an amendment in the prayer of the main writ petition, challenging the notification, dated 26.2.2016, itself, whereby with the help of the said Gazette notification, the respondents have sought to amend Rule 11 of the Bihar Panchayat Election Rules, 2006, with retrospective effect from 9.9.2009, on the ground that it is a colourable piece of legislation for the purposes of covering up an illegal direction issued by the State Election Commission under paragraph No.10 of Letter No.1457, dated 17.12.2016.
34. This Court, upon due consideration of the facts and circumstances, thereafter, reopened the writ application on 3.3.2016; but, even while noticing that the two notifications, (Annexure A and B) issued by the State Government having been issued, there was no occasion to proceed in the matter, yet kept the same pending in view of the two interlocutory applications, which have been filed for keeping them in abeyance. However, the Court Patna High Court CWJC No.2575 of 2016 24/27 declined to allow the amendment petition in view of the fresh cause of action having arisen on account of issuance of the notification under challenge.
35. Close on the heels of interlocutory applications, another writ application, by way of Public Interest Litigation, has been filed, bearing CWJC No.4614 of 2016, whereby the petitioners of CWJC 2575 of 2016, while raising the same and similar issue as those raised in the previous writ petition, have also sought for a direction from this Court for quashing the notification, dated 25.2.2016, and also the notification, dated 26.2.2016, which seeks to challenge the order prescribed for allotment of territorial constituencies for different classes in the un-amended Rule so as to bring it in consonance with the instructions issued by the State Election Commission's Letter No. 2144, dated 17.12.2015.
36. The challenge to the said notifications is on three grounds:
(i) The notification is illegal, arbitrary and having been issued at a time, when the judicial proceeding in that regard, was already concluded and judgment was kept reserved. Thus, the State is attempting to interfere with the due course of the judicial proceeding.
Patna High Court CWJC No.2575 of 2016 25/27
(ii) The impugned amendment is in contravention of Section 146(2) and (3) of the Bihar Panchayat Raj Act, 2006, which categorically provides that every Rule, made under Sub- Section (1) of Section 146, shall be laid before each House of the State Legislature and subject to any modification made under this Act, as every Rule made under this Act shall have the effect as if enacted in the Act, the respondent State was not justified to notify the Rule in the Bihar Gazette, on 26.2.2016, without laying the Rule before the State Legislature.
(iii) Such Rule cannot be sustained, is a nullity and cannot be acted upon. The impugned notification was intended to frustrate the proceedings of this Court in CWJC No.2575 of 2016 on the recommendation of the State Election Commission.
37. It was further urged that Section 146 of the Act of 2006 is an enabling provision, whereunder power was conferred upon the State Government to carry out the purposes of the Act; whereas under Sub-section (2), every rule, made under the Section, shall be laid before each House of the State Legislature and Sub- section (3) states that a rule, under this Act, may be made with retrospective effect and when such a rule is to be made, it has to be placed before both Houses of the State Legislature along with the reasons for making the rule specified in the statement. The same, Patna High Court CWJC No.2575 of 2016 26/27 having not been done, renders the impugned notifications a nullity.
38. It is contended by the writ petitioners that the provision of Section 146 having been given a go-bye, the notification, issued and annexed in the affidavit filed in I. A. No. 1880 of 2016, having made no mention that it was placed before both the Houses, was fit to be treated as an invalid piece of legislation. The writ petitioners have also contended that the notification, under Section 124 of the Act, was issued, on 25.2.2016, on the basis of exercise of the provisions for reservation carried out by the State Election Commission under its earlier instructions, which was not in consonance with the un-amended provision in the Rules as the same was under challenge in this Court. Therefore, the notification, issued under Section 124, cannot be a valid notification, because the decision to conduct the election was issued before a proper exercise in accordance with law for reservation and allotment of constituencies in favour of reserved classes. It is, thus, prayed that in the interest of justice, the impugned notification be set aside calling upon the respondents to act in accordance with the mandate of law so that the interests of the affected persons may not suffer and the elections conducted at the cost of the taxpayers do not become an exercise in futility.
39. Though the writ petitioners have strenuously urged Patna High Court CWJC No.2575 of 2016 27/27 before us the illegality in the actions of the State, we are of the considered view that the issuance of the amendment is wholly in consonance with the Constitutional provisions and in accordance with the letter and spirit of the provisions of the Bihar Panchayat Raj Act, 2009.
40. In the result, the present writ applications have been rendered infructuous. The impugned amendments are held to be in accordance with law.
41. These writ applications are, thus, dismissed.
(Anjana Mishra, J)
I. A. Ansari, ACJ.:- I agree.
(I. A. Ansari, ACJ)
PNM/AFR
U