Karnataka High Court
L.R. Naik vs State Of Karnataka on 24 July, 1987
Equivalent citations: ILR1987KAR2521
ORDER Prem Chand Jain, C.J.
1. The petitioners are members of Scheduled Castes. Through this petition, they have challenged the constitutional validity of Section 4 and in particular : (a) proviso to Ex-planaiton to Section (4)(1) of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayat and Nyaya Panchayat Act, 1983, (Act 20/1985)(hereinafter referred to a 'the principal Act') as amended by the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats (Amendment) Act, 1986 (Act 3/1986) (to be referred to as the 'Amendment Act') and ; (b) proviso to Section 3(2) of the Amendment Act and the corresponding like provisos in Sections 140 and 141 of the Principal Act.
2. For facility of reference, it would be appropriate to know the relevant provisions of the Principal Act and the said provisions after the amendment. They read as under :-
"Section 4. Declaration of Mandal and establishment of Mandal Panchayats : (1) Subject to the general or special orders of the Government, the Deputy Commissioner may, if, in his opinion it is expedient to declare any area comprising a village or group of villages having a population of not less than ten thousand and not more than fifteen thousand declare such area, after previous publication, as a mandal for the purpose of this Act.
Provided that the Government may by notification declare an area with a population of not less than five thousand as a Mandal in such area of the districts of Chickmagalur, Dakshina Kannada, Kodagu, Shimoga and Uttara Kannada as may be notified by the Government.
Provided further that irrespective of population, wherever it is found necessary, the Government as a special case may by notification declare an area within the radius of 8 k.m.s (diameter of 16 k.m.s) from the centre of a village as a mandal in such areas of the districts of Chickmagalur, Dakshina Kannada, Kodagu, Shimoga and Uttara Kannada.
(2) Subject to the general or special orders of the Government and the provisions of this Act, the Deputy Commissioner may, at the request of the mandal concerned or otherwise, and after previous publication of the proposal by notification, at any time :
(a) increase the area of any mandal by including within such mandal any village or group of villages ;
(b) diminish the area of any mandal by excluding from such mandal any village or group of villages ;
(c) alter the name of any mandal, or
(d) declare that any area shall cease to be a mandal.
(3) The Commissioner may within thirty days from the date of the notification either suo moto or on an application made by any person aggrieved by such notification and after giving a reasonable opportunity of being heard to the parties concerned, revise the orders of the Deputy Commissioner under Sub-section (1) or Sub-section (2).
(4). In every mandal declared as such under this Section, there shall be established a Mandal Panchayat."
Section 2 of the Amendment Act reads as under :-
"2. Amendment of Section 4. : In Section 4 of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (Karnataka Act 20 of 1985) hereinafter referred to as the principal Act) :
(1) for Sub-section (1), the following sub-section shall be substituted, namely :
"(1) Subject to (he general or special orders of the Government, the Deputy Commissioner, if, in his opinion, it is expedient to declare any area comprising a village or group of villages having a population of not less than eight thousand and not more than twelve thousand to be a mandal, may, after previous publication, declare such area as a mandal for the purposes of this Act and also specify its headquarter :
Provided that the Government may by notification order that an area with a population of not less than four thousand may be so declared as a mandal in such areas of the districts of Belgaum, Chikkamagalur, Dakshina Kannada, Dharwar, Hassan, Kodagu, Shimoga, and Uttar Kannada as may be notified by the Government :
Provided further that irrespective of population, wherever it is found necessary, the Government, as a special case, may, by notification, order that an area within a radius of eight kilo metres (diameter of sixteen kilometres) from the centre of a village may be so declared as a mandal in such areas of the districts of Belgaum, Chikkamagalur, Dakshina Kannada, Dharwar, Hassan, Kodagu, Shimoga and Uttara Kannada as may be notified by the Government :
Provided also that the Deputy Commissioner may, with the permission of the Government declare any area comprising a village or group of villages having a population of either less than eight thousand or more than twelve thousand to be a mandal.
Explanation : For the purpose of this section and Section 5, 'population' means the population as ascertained at the last preceding census of which relevant figures have been published :
Provided that the reference in this explanation to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2000 have been published, be construed as reference to the 1971 census."
(2) for Sub-section (3), the following sub-section shall be substituted namely :
(3) The Commissioner may either on an application made within thirty days from the date of the notification by any person aggrieved by such notification, or suo moto, and after giving a reasonable opportunity of being heard to the applicant or the mandate concerned revise the orders of the Deputy Commissioner under Sub-section (1) or Sub-section (2) and may also if he considers necessary, modify it as provided in third proviso to Sub-section (1). Every order so passed revising or modifying the order of the Deputy Commissioner shall be published in the Official Gazette."
Section 5 of the Principal Act reads as under ;
"5. Constitution of Mandal Panchayats : (1) The Mandal Panchayat shall consist of such number of elected members as may be notified from time to time by the Government, at the rate of one member for every five hundred population or part thereof of the Mandal as ascertained at the last preceding census of which the relevant figures are published :
Provided that the determination of the number as aforesaid shall not affect the then composition of the Mandal Panchayat until the expiry of the term of office of the elected members then in office."
Section 3 of the Amendment Act reads as under ;
"3. Amendment of Section 5 : In Section 5 of the principal Act, in Sub-section (1) : (1) for the words "five hundred", the words "four hundred" shall be substituted ;
(2) after the proviso, the following proviso shall be inserted, namely :
"Provided further that, until the relevant figures for the first census taken after the year 2000 have been published, it shall not be necessary to redetermine the total number of seats in the mandal."
Sections 140 and Section 141 of the Principal Act read as under :
"140. Elected members : The elected members of the Zilla Parishad shall consist of persons, elected from the taluks in the district, the number of members to be elected from each taluk being fixed in accordance with the scale of one member for thirty five thousand or part thereof of the population except for Kodagu district where it shall be one member for fifteen thousand or part thereof of the population.
Explanation -- Population for purpose of this Section and Sections 142 and 143 shall be the population of the district as determined at the last preceding census of which the relevant figures are published excluding such portions of it as are included in a municipality or are under the authority of a municipal Corporation, a sanitary board, a town board or a notified area committee.
141. Determination of elected members after such census Upon the publication of the figures of each census, the number of elected members of a Zilla Parishad shall be determined on the basis of the population of the taluks in the district as ascertained at that census :
Provided that the determination of the number as aforesaid shall not affect the then composition of the Zilla Parishad until the expiry of the term of office of the elected members then in office."
Sections 6 and Section 7 of the Amendment Act read as under :
"6. Amendment of Section 140. -- In Section 140 of the principal Act, -
(1) for the words "thirty five thousand" and "fifteen thousand", the words "twenty eight thousand" and "twelve thousand" shall, respectively, be substituted ;
(2) after the explanation the following proviso shall be inserted, namely :-
"Provided that the reference in this explanation to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2000 have been published, be construed as a refereuce to the 1971 census,"
7. Amendment of Section 141.- In Section 141 of the principal Act, after the proviso, the following proviso shall be inserted, namely:--
"Provided further that until the relevant figures for the first census taken after the year 2000 have been published, it shall not be necessary to redetermine the total number of elected members of a Zilla Parishad."
A bare perusal of the provisions of the principal Act shows that the population figures for purposes of determining the total number of seats and also reserved seats are the figures published by the Census Authority in the 1981 census. But now by the impugned amendment, the population figures are to be taken according to the 1971 census.
3. In the petition, the petitioners have impugned the provisions of the amendment Act on the ground that the same violate basic structure of the Constitution as well as the provisions or Article 14. To substantiate the aforesaid ground, it is averred in the petition that guarantee is provided under the Constitution to the Scheduled Castes and Scheduled Tribes that they shall be given proper reservation in all representative institutions and public service or office; that by the amendment Act reservation is denied to the Scheduled Castes and Scheduled Tribes to which they would be entitled to by virtue of the Scheduled Castes & Scheduled Tribes Orders (Amendment Act 1976) (Central Act 108 of 1976) (in short the Central Act), and that the effect of the impugned amendment is that those Scheduled Castes and Scheduled Tribes which have been specified under Central Act 108 of 1976 will be ignored for the purpose of determining the number of reserved seats.
4. Section 5 of the Central Act 108 of 1976 is reproduced below for facility of reference :-
"(1) As soon as may be after the commencement of the Act, the population at the last census of the Scheduled Castes or, as the case may be, of the Scheduled Tribes, in each State shall be ascertained or estimated by the Census Authority.
(II) Where by reason of the amendments made by Section 3 or Section 4 --
(a) any locality in a State specified in relation to any caste or tribe in any of the parts of the Schedules to the Orders referred to in the said sections is varied so as to specify a larger area in relation to such caste or tribe the census authority shall take into account the population, figures of the caste or tribe as ascertained in the last census and in any previous census wherein the population figures of the caste or tribe in respect of the increased area had been ascertained and determine the population of that caste or tribe as on the 1st day of April 1971 by increasing or decreasing such figures by the proportion in which the general population of the State or, as the case may be, the division, district, taluk, tahsil, police station, development block or other territorial division in relation to which such caste or tribe has been specified by the said amendments has increased or decreased between the previous census aforesaid and the last census :
(b) any caste or tribe which is deemed to be both a Scheduled Caste and Scheduled tribe in relation to a State or part thereof is varied so as to specify such caste or tribe only as a Scheduled Caste or Scheduled Tribe in relation to that State or part, the census authority shall take into account the population figures of such Scheduled Caste and Scheduled Tribe, as ascertained in the last census ;
Provided that it shall not be necessary for the census authority to determine the population of any Scheduled Caste or Tribe as on the 1st day of April 1971, if the population of that caste or tribe was not ascertained at the last census and in any of the previous censuses and is, in the opinion of that authority, numerically small.
Explanation -- Where the population figures of any caste or tribe in respect of any increased area referred to in Clause (a) had been ascertained in more than one previous census, the census authority shall take into account for the purposes of that clause, the population figures of such caste or tribe as ascertained in the previous census which is nearest in point of time to the last census.
3. The population figures ascertained or determined under Sub-section (2) shall be notified by the census authority in the Gazette of India.
4. The population figures so notified shall be taken to be the relevant population figures as ascertained at the last census and shall supersede any figures previously published and the figures so notified shall be final and shall not be called in question in any Court."
5. It is further averred that under Articles 341 and 342 of the Constitution, the President of India, in the first instance, issued two orders- (a) The Constitution (Scheduled Castes) Order, 1950 and (b) The Constitution (Scheduled Tribes) Order 1950. The first amendment to these orders was made by Parliament vide, Scheduled Castes and Scheduled Tribes (Modification Orders) 1956, which came into force from 29th October 1956, In 1976, Central Act was enacted to provide for the inclasion in and the exclusion from the Scheduled Castes and Scheduled Tribes, for readjustment of representation of parliamentary and assembly constituencies in so far as such readjustment is necessary by such inclusion or exclusion and for other matters connected therewith. It is this Act and the provisions contained therein which have to prevail for purposes of deciding the question of proper representation in democratic institutions such as the ones with which the Writ Petition is concerned.
6. It is further averred that Section 5(3) of the Central Act directs the Census Authority to publish in the Gazette of India the figures ascertained or estimated. Section 5(4) directs that the figures so notified shall be final and shall not be called in question in any Court. The effect and force of Section 5(4) of the Central Act, according to the petitioners, is that when the census authority notifies the population figures of Scheduled Castes and Scheduled Tribes, those figures are binding on every person and authority in the Country. By the impugned provisions, the provisions of the Central Act are being circumvented. It is also stated that there is repugnancy between the Central Act 108 of 1976 and the impugned provisions. There is express provision in Articles 341 and 342 of the Constitution that Parliament has the power to make laws regarding the inclusion or exclusion of citizens among the scheduled castes and scheduled tribes. Further, 'census' falls in entry 69 in List I of the 7th Schedule to the Constitution and therefore the legislation with regard to the census exclusively falls within the ambit of legislative power of Parliament as laid down in Article 246(1) of the Constitution. Hence it is urged that the Amendment Act being repugnant to Central Act, is void.
7. It is also pleaded that one of the basic principles of the Constitution is that there shall be proper reservation of seats for Scheduled Castes and Scheduled Tribes and the State Legislature is not competent to deny the Scheduled Castes and Scheduled Tribes that degree and extent of representation which falls short of standard specified in the Central Act. According to the plea of the petitioners, the 1971 census figures are not only wholly unrealistic but illegal, due to short-comings of diverse kinds, the purposes of the Constitution to secure proper representation for the Scheduled Castes and Scheduled Tribes could not be and was not effectuated until Central Act 108 of 1976 was enacted and once it was brought into force on and from 27th July 1977, it is not only incompetent for a State Legislature but unconstitutional to adopt the population figures of Scheduled Castes & Scheduled Tribes ascertained on any date prior to 27th July 1977. It is on the basis of these allegations that the petitioners, as earlier observed, have challenged the constitutional validity of the impugned amendment.
8. The Petition came up for hearing before a learned Single Judge, when on 25th November 1986, the following Order was passed :
"In this Writ Petition, the petitioners have challenged the constitutional validity of proviso to Sub-section (1) of Section 4 and proviso to Sub-section (1) of Section 5 and similarly, proviso to the explanation under Sections 140 and 141 of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayat and Nyaya Panchayats Act, 1983. This Court, having regard to the importance of the matters involved, referred W.P.No. 5073/1986 and connected matters to the Division Bench under Section 7 of the High Court Act for being heard and disposed of."
It is in view of the aforesaid order, that the matter has been put up for hearing before a Bench.
9. Instead of burdening this Judgment by referring to our orders passed of and on permitting the Learned Counsel for the parties to file additional affidavits and counters, suffice it to observe that vide our various orders, both the Learned Counsel for the petitioners as well as the Learned Advocate General were permitted to file additional affidavits giving additional facts and additional counters. All those additional affidavits and counters along with the documents were permitted to be placed on the record.
10. In the counter dated 5th January 1987, after giving certain facts and figures and quoting and analysing the relevant provisions, it is averred that while there is no constitutional compulsion on the State Legislature to provide for reservation for the Scheduled Castes and Scheduled Tribes in respect of election to a local body, the Karnataka Zilla Parishads Act provided for minimum 18% reservation for Scheduled Caste/Scheduled Tribes in every Mandal Pancha-yat and every Zilla Parishad ; that apart, out of 25% seats reserved for women, one seat is. reserved for women belonging to Scheduled Castes/Scheduled Tribes in every Mandal Panchayat and every Zilla Parishad ; that 21.87% of Zilla Parishad seats and 26.16% of Mandal Panchayat seats are reserved for Scheduled Castes and Scheduled Tribes although I the percentage of the population of Scheduled Caste/Schedu led Tribe as per 1971 census is 13.93 and as per 1981 census 19.98, that the petitioners are not at all aggrieved by the amendments introduced in the Act, and that they have no right to seek direction to the State Legislature to provide for reservation in a particular manner. It is emphatically averred that the amendments to the Zilla Parishad Act by the amendment Act are fully justified and legally valid.
11. On 8th January 1987 another statement of objection was filed wherein it is averred that the ascertainment as contemplated under Section 5 of the Central Act has to be I made by the Census Authority which is an organization under the Government of India and not by the State Government, I and that the reservation for the purpose of the Act has been I made by the State Government on the basis of publication I issued by the Chief Electoral Officer, Government of Karna-taka, Bangalore, issued in the year 1973 which in turn is based on the population figures of the State of Karnataka under the 1971 census. Since the publication itself is of the year 1978, it is obvious that even if there is any ascertain-ment as contemplated under Section 5 of Central Act 108 of 1976, the same has not been followed by the Government of Karnataka. The provisions of Section 9(c) and (d) of the Delimitation Act 1972 have not been followed for the purpose of delimitation of constituencies under the Zilla Parishad Act referred to above since Karnataka Act itself has made specific provisions for delimitation and reservation of constituencies under Sections 143 and 144 of the Zilla Parishad Act. The principal Act is a self-contained code and action has been taken on the basis of the provisions of the Act only.
12. It is further stated that the reservation of Scheduled Castes/Scheduled Tribes has been made as far as possible at taluk levels and delimitation of constituencies for the purpose of reservation for Scheduled Castes/Scheduled Tribes seats in each taluk has been made taking into consideration the percentage of population of Scheduled Castes/Scheduled Tribes in each constituency and the constituencies chosen for such reservation have been so chosen based on highest percentage of Scheduled Castes/Scheduled Tribes population in the available constituencies of a taluk. Same procedure has been adopted in regard to the reservations made in all taluks and in every Zilla Parishad.
13. Another additional statement of objections was filed on 2nd February 1987 wherein it is further averred that Delimitation Act, 1972 is an Act to provide for the readjustment of the allocationl of seats in the house of people to the States, the total number of seats in the Legislative Assembly of each State, the division of each State and each Union territory of Delhi into territorial constituencies for elections to the house of people and Legislative Assemblies of the States and Union territories and Metropolitan Council of Delhi and for matters connected therewith. The Scheduled Caste and Scheduled Tribes Orders (Amendment) Act 1976 is an Act to provide for the inclusion in and the exclusion from the list of Scheduled Castes and Scheduled Tribes, of certain castes and tribes, for the readjustment of representation in parliamentary and assembly constituencies in so far as such readjustment is necessitated by such inclusion or exclusion and for matters connected therewith. These two Acts are not applicable to the delimitation of Zilla Parishad or a Mandal Panchayat.
This is how the parties in their pleadings have put forth their case.
14. It was veheraently contended by Mr, Ullal, learned Counsel for the petitioners, that the principle of reservation is enunciated in Section 143 of the Principal Act as amended by Act No. 3 of 1986 read with the definition of Scheduled Castes and Scheduled Tribes in Section 2(31) and in view of these provisions it is constitutionally imperative that the census figures of 1981 should alone be taken into consideration for determining the number of seats to be reserved for Scheduled Castes & Scheduled Tribes. It was further submitted by Mr. Ullal that after the coming into force of Act 108 of 1976 (Central Act) the principles contained therein shall prevail for all purposes and also for deciding the question of proper representation and that in the instant case by adopting the census figures of the year 1971 the provisions of the said Central Act have been completely ignored.
15. As is evident from the contentions of Mr. Ullal, the grievance of the petitioners seems to be that after the promulgation of the Central Act there has been an increase in the percentage of Scheduled Castes and Scheduled Tribes population, that this increase in the percentage could validly be reflected only in the census of the year 1981 as the Central Act came into force on 27th July 1977; that as a result of the increase in the percentage of the Scheduled Castes and Scheduled Tribes as a result of the coming into force of the Central Act, in the census of 1981 the Scheduled Castes and Scheduled Tribes would have been entitled to a larger representation and reservation of more seats in the elections; and that the State Legislature by enacting the impugned legislation has illegally deprived the Scheduled Castes and Scheduled Tribes of the larger representation in the Zilla Parishad election.
16. On the other hand, the learned Advocate General submitted that the question raised and debated on behalf of the petitioners is purely of academic importance inasmuch as by adopting the 1971 census no loss at all has resulted to the Scheduled Castes and Scheduled Tribes in the reservation of seats; that the petitioners or the other persons whom they are representing have no vested right to ask for more representation or reservation of seats and that even if such a right is available the Legislature has taken full care to satisfy such right and the impugned legislation is constitutionally valid. It was also contended by the learned Advocate General that the contention of Mr. Ullal that the impugned legislation is repugnant to the provisions of the Central Act is wholly misconceived. According to him, in the 1950 Order certain communities were indicated and given benefit available to the Scheduled Castes and Scheduled Tribes. Later on by passage of time, it was found that these benefits should be extended to some other communities also. So there was re-application of mind as a result of which, Act 1976 came to be re-enacted and the schedule was amended and certain other communities were also included. As a result of the enumeration and addition of certain communities, the authorities had to necessarily look back to 1971 census only and identify those persons who were included under Scheduled Castes and Scheduled Tribes in the 1971 census. Thus the contention that there has been an enormous increase in the population as evidenced by 1981 census and hence there should have been reservation on that basis, is hardly tenable. According to the learned Advocate General, the petitioners could have shown that by this identification on the basis of addition of communities to the Scheduled Castes & Scheduled Tribes in the 1971 census there would have been an increase in the reservation of seats; but the petitioners have not put forth this case, rather the only case of the petitioners is that census of 1981 should have been made the basis for determining the number of seats to be reserved for the Scheduled Castes and Scheduled Tribes.
17. It was also argued by the learned Advocate General that there is no legal or constitutional right to demand reservation in Local Bodies elections. The State Legislature may or may not make reservations. In case no reservation had been made under the Zilla Parishad Act, the petitioners or any other person would not have a right to ask for a direction to make a provision for reservation nor could the Act or the procedure laid down for election be struck down on the plea that no reservation has been made. In support of this contention the learned Advocate General pointed out that so far as Rajya Sabha and Legislative Council elections are concerned there is no reservation. It was further submitted that in the instant case this question need not be adverted to as in the Act itself, on the basis of the population, adequate reservation has been provided. The petitioners have no right to ask for a specific percentage of representation nor is there any law which says that so much percentage has to be fixed for Scheduled Castes and Scheduled Tribes.
18. Before dealing with the merits of the contentions, it would be appropriate to analyse certain provisions of the Act. Section 2(31) of the Act defines Scheduled Castes and Scheduled Tribes as Scheduled Castes and Scheduled Tribes specified in respect of the State of Karnataka in the Constitution (Scheduled Castes) Order 1950 and the Constitution (Scheduled Tribes) Order 1950 for the time being in force. Section 4 of the Act makes a provision for declaration of Mandal and establishment of Mandal Panchayats. This Section has undergone an amendment under which in the proviso to the Explanation it is stated that reference to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2000 have been published, be construed, as reference to the 1971 census. Section 5 of principal Act talks of constitution of Mandal Panchayats. By the Amendment Act another proviso has been added which provides that until the relevant figures for the first census taken after the year 2000 have been published, it shall not be necessary to redetermine the total number of seats in the mandal. Section 138 of the principal Act provides for the establishment of Zilla Parishads and their incorporation. What is stated in the Section is that for each district there shall be a Zilla Parishad having jurisdiction, save as otherwise provided in this Act, over the entire district, excluding such portions of the district as included in a municipality or are under the authority of Municipal Corporation, a sanitary board, a town board or a notified area committee constituted under any law for the time being in force. It is also provided that every Zilla Parishad shall be a body corporate. Section 139 talks of composition of Zilla Parishad. In Section 140 of the Act it is stated that the elected members of the Zilla Parishad shall consist of persons elected from the taluks in the district, the number of members to be elected from each taluk being fixed in accordance with the scale of one member for 28000 or part thereof of the population except for Kodagu district where it shall be one member for 12000 or part thereof of the population. It may be mentioned that in the parent Act for 28000 the number was 35000 and for 12000 the number was 15000. By the Amending Act a proviso to the Explanation has been added, which says that reference in the Explanation to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2000 have been published, be construed as a reference to the 1971 census. Section 141 provides that upon the publication of the figures of each census the number of elected members of a Zilla Parishad shall be determined on the basis of the population of the taluks in the district as ascertained on that census. In this Section after the proviso another proviso has been added which says that until the relevant figures for the first census taken after the year 2000 have been published, it shall not be necessary to redetermine the total number of elected members of a Zilla Parishad. Section 142 makes provision for reservation for women. It says that seats shall be reserved in a Zilla Parishad for women and the number of seats so reserved shall be not less than 25 per cent of the number of elected members. It is further provided that out of the seats so reserved one seat shall be reserved for a woman belonging to the Scheduled Caste or the Scheduled Tribe, Section 143 makes a provision for reservation for Scheduled Castes and Scheduled Tribes and reads thus :
Reservation for Scheduled Castes and Scheduled Tribes :
(1) Seats shall be reserved in a Zilla Parishad for the Scheduled Castes and Scheduled Tribes and the number of seats reserved shall bear, as nearly as may be, the same proportion to the total number of elected members in a Zilla Parishad as the population of the Scheduled Castes and Scheduled Tribes in the district bears to the total population of the district :
Provided that such reservation shall not be less than eighteen percent of the total number of seats in the Zilla Parishad.
(2) Nothing contained in this section shall be deemed to prevent the members of the Scheduled Castes and Scheduled Tribes or women for whom seats have been reserved in Zilla Parishad from standing for election to the non-reserved seats in such Zilla Parishad."
As would be seen from the provisions of Section 143, the number of seats reserved shall bear, as nearly as may be, the same proportion to the total number of elected members in a Zilla Parishad as the population of the Scheduled Castes & Scheduled Tribes in the district bears to the total population of the district. It is further provided by way of proviso that such reservation shall not be less than eighteen per cent of the total number of seats in the Zilla Parishad. It is thus quite evident that under the proviso, irrespective of the population, a minimum of eighteen per cent reservation is assured in favour of the Scheduled Castes and Scheduled Tribes. The proviso operates only when the percentage in the population is less than what is prescribed in the proviso. If the percentage increases over and above what the proviso prescribes, then the proviso does not work. That is why a safeguard is provided in the proviso by the Legislature to see that a minimum reservation is assured to the Scheduled Castes and Scheduled Tribes.
19. Further for the purpose of election to the Zilla Parishad reservation is made for Scheduled Castes and Scheduled Tribes taking the district as a unit. Thereafter the number of seats available are determined. Then the population of Scheduled Castes and Scheduled Tribes is, identified, and reservation is made for Scheduled Castes and Scheduled Tribes as specified in Sections 142 and 143.
By the impugned amendments, 1971 census has been taken as the basis for holding elections. The question is as to why has this amendment been brought just before the holding of the elections. In the amendment Act there is no statement of objects which could throw light on the object or purpose of this amendment. But during the course of the argument, the Learned Advocate General submitted that Articles 55, 81, 82, 170 and 330 of the Constitution have been amended by the 42nd Amendment to the Constitution with effect from 3rd January, 1977 to ensure that the elections to the Lok Sabha and the State Assemblies need not wait delimitation of constituencies after such Census. The proviso inserted in Articles 55 and 170 reads as follows ;
"Provided that the reference in this explanation to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2000 have been published, be construed as a re-ference to the 1971 census."
The object of inserting the proviso reads as under:
"In the context of the intensification of the family planning programmes of the Government, it is considered that not only the allocation of seats in the House of People to the States and the total number of seats in Legislative Assemblies of the States but also the extent of parliamentary and Assembly constituencies and the reservation of seats for Scheduled Castes and Scheduled Tribes as determined on the basis of the 1971 census, should be frozen till the year 2001. It is accordingly proposed to amend the relevant Articles, namely Articles 81 and 82 relating to the Lok Sabha, Article 170 relating to the legislative assemblies of the States, Article 55 relating to the manner of election of the President and Articles 330 and 332 relating to the reservation of seats for Scheduled Castes and Scheduled Tribes in the Lok Sabha and the legislative assemblies of States."
According to the Learned Advocate-General, Karnataka Municipalities Act 1964, Karnataka Village Panchayat and Local Boards Act, 1959 and Karnataka Municipal Corporations Act, 1976 are amended and similar proviso is inserted. Proviso to explanation to Sub-section (1) of Section 11 of Karnataka Municipalities Act was inserted by Act No. 13 of 1979 with effect from 23-2-1979. Proviso to Sub-section(4) of Section 5, proviso to Section 97, proviso to Sub-section (2) of Section 100 of Karnataka Village Panchayat & Local Boards Act, were inserted by Act No. 11 of 1983 with effect from 22-3-1983. Proviso to Sub-section (2) of Section 21 of Karnataka Municipal Corporation Act was inserted by Act No. 13 of 1983 with effect from 24-2-1983. Thus it is quite evident that practically every similar provision in the other statutes pertaining to the local body was amended and the provision similar to the one impugned before us was added
20. Now coming to the merits of the case, the first question that arises for consideration is whether it is constitutionally imperative that the census figures of 1981 should alone be taken into consideration for determining the number of seats to be reserved for Scheduled Castes and Scheduled Tribes. On giving our thoughtful consideration to the entire matter, we find that the answer has to be in the negative. It is under Section 143 that the proportionate representation is fixed. The petitioners have not challenged that proportionate representation. In the statute, except the provisions of Section 143 there is no other provision under which the right of reservation may be claimed. It is not the case of the petitioners that there is any other enactment or the provision of the Constitution under which reservation of seats in Zilla Parishad election could be claimed or that some fixed percenluge of reservation could be asked for. Mr. Ullal could not point out any provision nor did he argue as to what should be the reasonable percentage His whole argument revolved around the plea that 1981 census should have been made the basis for determining the number of reserved seats and in support of this argument the entire emphasis was laid on the Central Act of 1976.
21. To determine the effect of the Central Act, it would be necessary to refer to some of its relevant provisions. The purpose of enacting the Central Act as indicated in its preamble was to provide for the inclusion in and the exclusion from the lists of Scheduled Castes and Scheduled Tribes of certain castes and tribes for the readjustment of representation of Parliamentary and Assembly Constituencies in so far as such readjustment is necessitated by such inclusion and for matters connected therewith. As indicated in the preamble, the Act was made with a view to readjust the representation in Parliamentary and Assembly Constituencies. Section 2(a) defines Census Authority while Section 2(c) defines Delimitation Act, Section 2(d) provides that 'list of census' means the census held in India in 1971. Section 3 provides that the Scheduled Castes Order is hereby amended in the manner and to the extent specified in the First Schedule. Section 4 states that the Scheduled Tribes Orders are hereby amended in the manner and to the extent specified in the Second Schedule. Section 5 provides a detailed procedure for determination of population of Scheduled Castes and Scheduled Tribes. Under Section 6 it is provided that after the population figures have been notified for any State under Section 5 it should be the duty of the Commission to make such amendment as may be necessary under the Delimitation of Parliamentary and Assembly Constituencies Order, 1976 (without altering the extent of any constituency as given in such Order) having regard to the provisions of Articles 81, 170, 330 and 332 of the Constitution, of Section 8 of the Delimitation Act and of this Act for the purpose of giving proper representation to the Scheduled Castes, or as the case may be, to the Scheduled Tribes of that State on the basis of the number of reserved seats as specified in that Order as hereunder amended by the Commission ; and the First Schedule and Second Schedule to the Representation of the People Act, 1950 (43 of 1950) shall be deemed to have been amended accordingly.
22. Article 81 of the Constitution to which reference has been made in Section 6 talks of the composition of the House of People. Article 170 refers to the composition of the Legislative Assemblies. Article 430 provides for reservation of seats for Scheduled Castes and Scheduled Tribes in the House of People while Article 432 talks of reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States.
23. Further the Delimitation Act, 1972 is an Act to provide for the readjustment of the allocation of seats in the House of People to the States, the total number of seats in the Legislative Assembly of each State, the division of each State and each Union Territory having a Legislative Assembly and the Union Territory of Delhi into Terriktorial constituencies for elections to the House of People an< Legislative Assemblies of the States and Union Territories and Metropolitan Council of Delhi and for matters connected therewith.
24. Thus it is quite evident that the provisions of the Central Act of 1976 or of the Delimitation Act, 1972, have no relevancy nor do they in any way affect the provisions of the Zilla Parishad Act which is a self-contained code for the purpose of holding elections to the Zilla Parishads and their establishment. In the Statement of Objection dated 8-1-1987 it is clearly averred thus-
"The reservation for the purpose of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act 1983 has been made by the State Government of Karnataka based on the publication issued by the Chief Electoral Officer, Government of Karnataka, Bangalore, issued in the year 1973, which in turn is based on the population of the State of Karnataka based on the 1971 Census. Since the publication itself is of the year 1973, it is obvious that even if there is any ascertainment as contemplated under Section 5 of Act 108 of 1976, the same has not been followed by the Government of Karnataka. Provisions of Section 9(c) and (d) of the Delimitation Act 1972 have not been followed for the purpose of Delimitation of Constituencies under the Zilla Parishads Act referred to above since the Karnataka Act itself has made specific provisions for Delimitation and Reservation of Constituencies under Sections 143 and 144 of the Zilla Parishads Act."
25. Further in the earlier part of the Judgment, reference has already been made to Sections 138 to 143 of the Act Besides those Sections, reference may also be made to some other Sections. Section 147 provides that every person whose name appears in the electoral roll relating to a constituency shall, subject to the other provisions of this Act, be entitled to vote in any election which takes place in that constituency. Section 148 which makes reference to electoral roll reads as under :
"148. ELECTORAL ROLL: The Electoral roll of the Karnataka Legislative Assembly for the time being in force for such part of the district as is included in any constituency of the Zilla Parishad along with the additional electoral roll prepared under Sub-section (2), shall, for the purpose of this Act, be deemed to be the electoral roll of the Zilla Parishad for such constituency :
Provided that the electoral roll for such constituency of the Zilla Parishad shall not include any amendment, transposition, inclusion or detletion of any entry made after the last date for making nomination for election to such constituency and before the completion of such election.
(2) There shall be prepared and revised by the prescribed authority in the prescribed manner and at prescribed intervals an additional electoral roll for each constituency of the Zilla Parishad. Every person who is ordinarily resident within a constituency and is not less than eighteen years of age on the first day of January of the year in which the additional electoral roll is so prepared or revised, but excluding a person who was not less than twenty one years of age on the First day of January of the year in which the electoral roll referred to in Sub-section (1) was last revised, shall be eligible to be included in the additional electoral roll so prepared or revised for that constituency ;
Provided that if the additional electoral roll is not revised as aforesaid, the validity or continued operation of the additional electoral roll shall not thereby be affected.
EXPLANATION : For the purpose of this sub-section the term 'ordinarily resident' shall have the same meaning as defined in Section 20 of the Representation of the People Act, 1950 (Central Act 43 of 1950).
(3) The provision of Sections 16, 17, and 18 of the Representation of People Act, 1950 (Central Act 43 of 1950) shall mutatis mutandis apply for the purpose of this section."
Section 153 refers to qualification of a candidate; under this provision it is stated that subject to the provisions of Subsection (2) no person shall be qualified to be chosen to fill a a seat in any Zilla Parishad unless he is a citizen of India. and is not less than 25 years of age; it is also provided under Sub-section (2) that a person shall not be qualified to be chosen to fill a seat in a Zilla Parishad unless his name is included in the electoral roll of the Zilla Parishad for the time being in force in the district. Thus from these provisions of the Act, it is quite evident that for the purpose of holding elections to the Zilla Parishads the Legislature has provided a complete procedure and machinery. That being so as earlier observed, the provisions of the Act are not affected in any manner by the provisions of 1976 Act. Moreover, it is the State Legislature which under Entry 5 of List II of Seventh Schedule has the power to make law with regard to the matters referred to therein. The said Entry reads as under :-
"5. Local Government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration."
It is under the aforesaid Entry that the Legislature has enacted the Zilla Parishad Act. The Parliament, under the Constitution, has no power to make any law with regard to election to the local bodies as the same does not come within the purview of List I. The Parliament under Entry 72 of List I makes laws with regard to elections to Parliament, to the Legislature of States and the offices of President and Vice-President; the Election Commission. For holding Zilla Parishad election, the State Legislature alone is competent to enact law and for that purpose the Act which is a complete Code in itself has been enacted, Moreover Karnataka Municipalities Act, 1964, Karnataka Village Panchayats and Local Boards Act, 1959 and Karnataka Municipal Corporations Act, 1976, have been amended and similar provisions are made. Proviso to explanation to Sub-section (1) of Section 11 of the Karnataka Municipalities Act was inserted by Act No. 13 of 1979 with effect from 23-2-1979. Proviso to Sub-section (4) of Section 5, proviso to Section 97, proviso to Sub-section (2) of Section 100 of Karnataka Village Panchayats and Local Boards Act, were inserted by Act No. 11 of 1983 with effect from 22-3-83. Proviso to Sub-section(2) of Section 21 of Karnataka Municipal Corporations Act was inserted by Act No. 13 of 1983 with effect from 24-2-1983. All these Acts like Zilla Parishad Act, make provisions for elections, delimitation of constituencies and reservation etc. When the State Legislature is competent to have its own laws to conduct elections to its own local bodies, we fail to understand how the provisions of such statutes can be circumscribed by the provisions of the Central Act or the Delimitation Act, 1972.
26. Moreover, the question of repugnancy between the Zilla Parishad Act and the Central Act also does not arise. The field of the two legislations as indicated earlier is independent of each other. They do not occupy the same field. The Zilla Parishad Act is a valid piece of legislation enacted by the State Legislature competently. The question of repugnancy arises only when both the Legislature and the Parliament are competent to legislate in the same field. Here the State Legislature was competent to legislate and has enacted the Zilla Parishad Act. The Central Act of 1976 has no bearing on the provisions of the Zilla Parishad Act. As to when a question of repugnancy arises, reference may be made to the observations of the Supreme Court in Hoechst Pharmaceuticals Ltd. v. State of Bihar, which read as under :
"42. Union and State Legislatures have concurrent power with respect to subjects enumerated in List III subject only to the provision contained in Clause (2) of Article 254 i.e., provided the provisions of the States Act do not conflict with those I of any Central Act on the subject. However, in case of repugnancy between a State Act and a Union Law on a subject enumerated in List III, the State law must yield to the Central Law unless it has been reserved for the assent of the President and has received Ms assent under Article 254(2). The question of repugnancy arises only when both the Legislatures are competent to legislate in the same field i.e. when both the Union and the State laws relate to a subject specified in List III and occupy the same field."
From the aforesaid observations, it is clear that it is only when the two Legislatures are competent to legislate that the question of repugnancy arises. In the present case, the field of the two legislations is independent of each other and they do not occupy the same field. Thus the contention of the Learned Counsel that the provisions of the Act are repugnant to the provisions of Central Act, is without any merit.
27. Moreover, we find considerable force in the contention of the Learned Advocate General that there was nothing wrong or illegal for making a provision that the reference to the last preceding census of which the relevant figures have been published, shall until relevant figures for the first census taken after the year 2000 have been published, be construed as a reference to the 1971 census as even in Articles 81 and 330. a similar provision was made and introduced by 42nd Amendment of the Constitution. In the instant case, clue seems to have been taken from the said two Articles of the Constitution. By freezing the number of reserved seats by taking 1971 census as the basis, no constitutional provision has been violated. In this view of the matter, we hold that the impugned Act does not impinge on any of the provisions of the Central Act, that the question of repugnancy between the two statutes does not arise, that the Zilla Parishad Act has been validly enacted by the State Legislature and that it was within the competency of the State Legislature to have enacted the Act and the Amendment Act.
28. This brings us to question as to what is the right of the petitioners to claim reservation on the basis of 1981 census. Having held that the Act is valid and is not in any way circumscribed by the provisions of the Central Act or Delimitation Act, 1972, the question in our view hardly arises. However on due consideration of the matter, we find that no such right exists in the petitioners. It was conceded at the Bar by the Learned Counsel for the petitioners that if no reservation of seats, in the Zilla Parishad election had been made, no claim could validly have been laid for any such reservation. That being so the State Legislature could I have validly enacted a law without providing for any reservation of seats for Scheduled Castes and Scheduled Tribes. But, in the instant case, we find that under the provisions of Section 143, a minimum of 18 per cent of the reservation besides the reservation for women under Section 142 has been provided. Here, it is not the case where no reservation at all for the Scheduled Castes & Scheduled Tribes has been made. As it transpires from the averments in the counters filed on behalf of the State, in the Zilla Parishad elections while providing representation, full care has been taken by the State Legislature to safeguard the interests of the Scheduled Castes and Scheduled Tribes. In 38 parliamentary seats, 4 have been reserved for Scheduled Castes and Scheduled Tribes which conies to 14.3 per cent of the total number of seats. Similarly, there are 224 seats in the State Legislature out of which 35 seats are reserved for Scheduled Castes and Scheduled Tribes which comes to 15.65 per cent of the total number of seats. But, in the case of Zilla Parishad, the State Legislature has assured a minimum of 18 per cent seats to the Scheduled Castes and Scheduled Tribes.
29. Further, at this stage, it would also be pertinent to observe that by the amendment, no harm has been caused to the rights of the Scheduled Castes and Scheduled Tribes. As we gather from the petition, the impression of the petitioners is that there has been an increase in the population of the Scheduled Castes and Scheduled Tribes between 1971 and 1981 census and that if proportionate representation is based on the population of 1981 census, then, there should be an increase in their percentage, but, by now adopting 1971 census they have been deprived of that benefit, i.e., the increase in the number of seats. This impression of the petitioners is wholly unfounded. As per Section 143, the reservation in favour of Scheduled Castes and Scheduled Tribes shall not be less than 18 per cent of the total number of seats of Zilla Parishad, Under Section 142, it is provided that seats shall be reserved in a Zilla Parishad for women and the number of seats so reserved shall be not less than 25 per cent of the number of elected members, provided that out of the seats so reserved, one seat shall be reserved for a woman belonging to the Scheduled Caste or Scheduled Tribe. Thus, in view of these provisions, irrespective of the population of the Scheduled Castes and Scheduled Tribes, 18 per cent of the total number of seats is assured for the Scheduled Castes and Scheduled Tribes under Section 143 and one seat for a woman under Section 142. In the instant case, from the figures which have been made available, we find that even taking the 1981 census, practically no difference would be made in the number of seats. As was demonstrated by the learned Advocate General, in the 1971 census, the population percentage of Scheduled Castes was 13.14 and of Scheduled Tribes O.79, total coming to 13-93 per cent, while, in 1981 census, the population percentage of Scheduled Castes is 15.07 and of Scheduled Tribes 4,91 total coming to 19.98. Thus taking the provisions of Sections 142 and 143 into consideration, the Scheduled Castes and Scheduled Tribes have not been harmed in any manner by the amendment as even on the basis of 1981 census, they would not have got more seats than the one to which they are entitled to under the Act. Thus, it is quite evident that even on facts, the petitioners have not been able to make out any case in their favour.
30. This brings us to the last contention of Mr. Ullal that the impugned amendments are hit by Article 14 of the Constitution. What was sought to be projected by Mr. Ullal, learned Counsel, was that the choosing of 1971 Census is wholly arbitrary and no rationale or basis exists for selecting that census. This contention of the learned Counsel is without any merit. No foundation at all has been laid by the petitioners in the Petition to show in what way choosing of the year 1971 is arbitrary. Census is prepared every ten years. The State has chosen 1971 census, presumably for the reason that this year has been chosen by the Parliament under Articles 81 and 330 of the Constitution. It has clearly been brought out in the earlier part of the Judgment that the rights of the Scheduled Castes and Scheduled Tribes have been amply protected by the Legislature and they have not been harmed by the impugned amendments. In this view of the matter, we find that the petitioners have failed to establish that impugned amendments suffer from the vice of arbitrariness and are hit by Article 14 of the Constitution.
31. No other point arises for consideration.
32. For the reasons recorded above, this Petition fails and is dismissed. But in the circumstances of the case we make no order as to costs.