Andhra HC (Pre-Telangana)
M. Madhu Babu vs Govt. Of Andhra Pradesh And Ors. on 28 June, 2001
Equivalent citations: 2001(6)ALD443, 2001(5)ALT109
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. The petitioner in this application inter alia has prayed for issuance of a writ of or in the nature of mandamus declaring the action of the 1st and 2nd respondents herein in reserving the office of the Chairperson, Zilla Parishad, Khammam in favour of the Scheduled Tribe in the ensuing election to the local bodies, as illegal. The petitioner is a candidate for the office of Zilla Parishad Territorial Constituency in the ensuing election to be held for the local bodies in the year 2001. It is not in dispute that the office of the Chairperson of the Khammam district has been reserved for the member of Scheduled Tribe. The contention of the petitioner in short is that having regard to para 23 of G.O.Ms.No. 140, dated 20.4.2001 issued by the Panchayat Raj and Rural Development (Elections) Department, the said office ought to have been placed in the open category inasmuch as in the last election the same had been reserved for the Scheduled Tribe candidate. The said para reads thus:
The reservation of offices of Chairpersons for Scheduled Tribes, Scheduled Castes, Backward Classes and Women shall be by rotation commencing from the first ordinary election held under the Act. The Offices of Chairpersons of Zilla Parishads reserved for STs, SCs, BCs and Women during the earlier ordinary elections shall not be reserved for the same categories till a cycle of reservation in that category is completed.
2. Mr. P. Prabhakara Rao, the learned counsel appearing on behalf of the petitioner inter alia submitted that having regard to the provisions contained in Article 243-D(4) of the Constitution of India as also in terms of the aforementioned G.O.Ms.No. 140, the respondents herein must be held to have committed gross illegality in treating the seat to be in the reserved category. Article 243D(4) reads thus:
Reservation of seats :--(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 Tribe in the State bears to the total population of the State;
Provided further that not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women;
Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level.
3. The learned counsel would contend that the word "ordinarily" must be read to mean 'in the large majority of cases' keeping in view the purport and object of holding of election inter alia on the ground that election is held in the State as a whole and not in the districts alone. Strong reliance in this connection has been placed on JAGANNATH AGARWALA v. STATE OF ORISSA, . Our attention in this connection has been drawn to G.O.Ms.No. 75, dated 4.2.1995.
4. Mr. Ramesh Ranganathan, the learned Additional Advocate-General, on the other hand, submitted that having regard to the provisions contained in Article 243M of the Constitution of India, the provisions of Part IX, in absence of any statute, could not be extended to the agency area. The elections held in 1995, the learned counsel contends, had been declared illegal by a Division Bench of this Court in W.P.No. 10451 of 2001, dated 7.6.2001. The learned counsel would contend that the chairperson is required to be elected by the members and having regard to the fact that no member could be validly elected, the question of valid election of a chairperson would not arise. The learned counsel submits that in the earlier election no chairperson even took charge of any office nor even had taken oath. It was submitted that in the aforementioned situation the present election must be held to be the first election in respect of the agency area. Such reservations having been made in favour of the Scheduled Tribe candidate having regard to the fact that the population of the Scheduled Tribe is highest in the district of Khammam, the same cannot be said to be illegal.
5. Article 243M provides that the provisions of Part IX of the Constitution of India may be extended to the scheduled areas referred to in Clause (1) and the tribal areas in Clause (2) of Article 244. Clause (4) of Article 243M in the following terms :
Notwithstanding anything in this Constitution-
(a) The Legislature of a State referred to in Sub-clause (a) of Clause (2) may, by law, extend this Part to the State, except the areas, if any, referred to in Clause (1), if the Legislative Assembly of that State passes a resolution to that effect by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting;
(b) Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the tribal areas referred to in Clause (1) subject to such exceptions and modifications may be specified in such law, and no such law shall be deemed to be an amendment of this Constitution for the purposes of Article 368.
6. It is not in dispute that the election in the Khammam district was held in terms of Part IX of the Constitution of India, purported to be in terms of A.P. Panchayat Raj Act, 1994. It is also not in dispute that at the relevant time the law of the State was not extended to the agency area.
7. The State enacted the Provisions of the Panchayat (Extension to the Scheduled Areas) Act, 1996, Act No. 40 of 1996, which received the assent of the President on 24.12.1996 and was published in the gazette of India on the same date. Section 3 of the said Act reads thus:
Extension of Part IX of the Constitution:--The provision of Part IX of the Constitution relating to Panchayats are hereby extended to the Scheduled Areas subject to such exception and modifications as are provided in Section 4.
8. The A.P. Panchayat Raj (Amendment) Act, 1998, being Act No. 7 of 1998 was enacted whereby and whereunder the provisions of the A.P. Panchayat Raj Act, 1994 were brought in tune with the provisions of Act No. 40 of 1996. By reason of Section 2 of the said Act, Sub-section (2A) was added after Sub-section (2) of Section (1) which is in the following terms:
In their application to the Scheduled Areas in the State as referred to in Clause (1) of Article 244 of the Constitution of India, the remaining provisions of this Act shall apply subject to the provisions of Part VI-A of this Act.
9. Special provisions relating to Panchayats, Mandal Parishads and Zilla Parishads located in the schedule areas were also included by inserting Part VI-A in the said Act. Section 242D of the said Act reads thus:
Reservation of seats of members of Gram Panchayat and Mandal Parishad and Offices of Sarpanchas of Gram Panchayats and Presidents of Mandal Parishads :--The reservation of seats in the Scheduled Areas to every Gram Panchayat and Mandal Parishad shall be in proportion to the population of the communities in that Gram Panchayat or the Mandal Parishad as the case may be:
Provided that the reservation for the Scheduled Tribes shall not be less than one-half of the total number of seats.
Provided further that all seats of Sarpanchas of Gram Panchayats and Presidents of Mandal Parishads shall be reserved for the Scheduled Tribes.
10. Having regard to the fact that despite constitutional injunction contained in Article 243M of the Constitution, Panchayat Raj Act, 1994 was sought to be extended to the schedule area and the election held therein was a nullity.
11. This aspect of the matter came up for consideration before a Division Bench of this Court in Writ Petition No. 13161 of 1998 and Review W.P.M.P.No. 29613 of 1998 wherein the contention raised on behalf of the State that no fresh election is warranted in the scheduled area was negatived stating:
We cannot countenance this contention for the reason that the election which was held before enacting A.P. Act No. 7 of 1998 was invalid and non est under law and fresh elections have got to be conducted. In fact, the term of the elections conducted in the year 1995 is almost over and the fresh elections have to be conducted. In the circumstances, this writ petition is dismissed.
12. In the said decision the Court took notice of an earlier Division Bench decision dated 23.3.1995 in Writ Petition No. 3817 of 1995 reported as VASANTH KUMAR v. GOVT. OF A.P., 1995 (1) ALD 801, which was filed questioning the elections which were held in scheduled areas wherein the same was held to be ultra vires.
13. In the aforementioned backdrop, the submissions made by the learned counsel for the petitioner has to be considered. It may be that in terms of the provisions of the Panchayat Raj Act, election has to be held in the entire State and the provisions of reservation had to be extended accordingly. But as the agency area was excluded from the purview of the said Act, neither any election could be directed to be held nor the reservation policy of the State in terms thereof could be extended to the said area. For all intent and purport the purported election held in the year 1995 was non-est in the eye of law and pursuant thereto no chairperson took oath of office. Sub-section (2) of Section 181 reads thus:
Out of the total number of offices of Chairmen in the State, the Commissioner shall, subject to such rules as may be prescribed, by Notification reserve,--
(a) Such number of offices to the members belonging to Scheduled Castes and Scheduled Tribes as may be determined by him, subject to the condition that the number of offices so reserved shall be, as nearly as may be, the same proportion to the total number of offices to be filled in the State as the population of the Scheduled Castes or as the case may be, the Scheduled Tribes in the State bears to the total population of the State and such offices may be allotted by rotation to different Zilla Parishads in the State in the manner prescribed;
(b) thirty four percent of the total number of such offices or Chairmen in the State for backward classes; and such offices may be allotted by rotation to different Zilla Parishads in the State in the manner prescribed;
(c) not less than one-third of the total number of offices reserved under Clauses (a) and (b) for women belogning to the Scheduled Castes, Scheduled Tribes, or as the case may be, the backward classes; and
(d) not less than one-third (including the number of offices reserved for women belonging to Scheduled Castes, Scheduled Tribes and the backward classes) of the total number of offices to be filled in the State for women and such offices may be allotted by rotation to different Zilla Parishads in the State in the manner prescribed.
14. Reservation in the year 1995 was thus made in terms of the rule prescribed under the said Act which did not have the constitutional sanction.
15. For the reasons aforementioned, we accept the contention raised by the learned Additional Advocate-General that the present election must be held to be the first election which is being held in the agency area having regard to the fact that A.P. Gram Panchayat Act, 1994 has not been extended. The decision, of the apex court in JAGANNATH AGARWALA's case (supra) was rendered absolutely in a different context. Assuming that the word "ordinary" may be held to be applicable where an action had been taken in a majority of cases but the same principles cannot be held to be applicable when the Act itself is not extended by reason of a constitutional mandate. It may be that the election of the ZPTC was held but the same being a nullity, it was non est in the eye of law. The concept of state-wide election must be construed to mean the election held under the statute which in turn would mean that such election is held in respect of the areas to which the Act was applicable. As the agency areas had been excluded by reason of the provisions of the Constitution as noticed hereinbefore, the contention of the learned counsel for the petitioner cannot be accepted.
16. For the reasons aforementioned there is no merit in this petition which is accordingly dismissed. There shall be no order as to costs.