Rajasthan High Court - Jodhpur
Dule Singh vs State Of Rajasthan on 30 September, 2019
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) S.B. Civil Writ Petition No. 13346/2019
1. Dule Singh S/o Nirbhay Singh, Aged About 56 Years,
Kacher, Post Adinda, Tehsil Vallabhnagar, District Udaipur.
2. Devi Lal S/o Vella Ji Dangi, Aged About 62 Years, Kacher
Vikela, Post Adinda, Tehsil Vallabhnagar, District Udaipur.
3. Roop Lal S/o Hama Rawat, Aged About 40 Years, Kacher
Vikela, Post Adinda, Tehsil Vallabhnagar, District Udaipur.
4. Vishnu Singh S/o Keshar Singh Ji, Aged About 50 Years,
Kacher, Post Adinda, Tehsil Vallabhnagar, District Udaipur.
5. Bhanwar Singh S/o Hari Singh, Aged About 40 Years,
Kacher, Post Adinda, Tehsil Vallabhnagar, District Udaipur.
6. Madan Singh S/o Manohar Singh, Aged About 50 Years,
Kacher, Post Adinda, Tehsil Vallabhnagar, District Udaipur.
7. Ratan Lal S/o Tulsi Ram Rawat, Aged About 40 Years,
Vikela, Post Adinda, Tehsil Vallabhnagar, District Udaipur.
8. Chagan Lal S/o Gamana Rawat, Aged About 38 Years,
Vikela, Post Adinda, Tehsil Vallabhnagar, District Udaipur.
9. Shrawan Singh S/o Lemb Singh, Aged About 32 Years,
Kacher, Post Adinda, Tehsil Vallabhnagar, District Udaipur.
10. Baba Ram S/o Jaga ji Rawat, Aged About 30 Years, Kacher,
Post Adinda, Tehsil Vallabhnagar, District Udaipur.
11. Banshi Lal S/o Dharma ji, Aged About 25 Years, Kacher,
Post Adinda, Tehsil Vallabhnagar, District Udaipur.
----Petitioners
Versus
1. State of Rajasthan through Chief Secretary, Government of
Rajasthan, Jaipur, Rajasthan.
2. Additional Chief Secretary, Government of Rajasthan,
Rural Development and Panchayati Raj Department,
Secretariat, Jaipur, Rajasthan.
3. Secretary, Government of Rajasthan, Rural Development
and Panchayati Raj Department, Secretariat, Jaipur,
Rajasthan.
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4. District Collector, Udaipur, Udaipur, Rajasthan.
----Respondents
(2) S.B. Civil Writ Petition No. 13888/2019
1. Saajan Ram S/o Shri Jiya Ram, Aged About 45 Years, B/c
Jat, R/o Bijariya Baori, Tehsil Tinwari, District Jodhpur
Rajasthan.
2. Ameda Ram S/o Shri Puna Ram, Aged About 48 Years,
By Caste Jat, R/o Bijariya Baori, Tehsil Tinwari, District
Jodhpur, Rajasthan.
----Petitioners
Versus
1. State Of Rajasthan, Through Secretary, Rural
Development And Panchayati Raj, Department,
Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.
2. Additional Chief Secretary, Rural Development And
Panchayati Raj Department, Government Of Rajasthan,
Secretariat, Jaipur, Rajasthan.
3. District Collector Jodhpur, Rajasthan.
----Respondents
(3) S.B. Civil Writ Petition No. 13956/2019
1. Chaina Ram Patel S/o Shri Hari Ram Patel, Aged About
44 Years, By Caste Patel, R/o Village Jhanwar, Tehsil
Luni, District Jodhpur, Rajasthan.
2. Champa Lal S/o Shri Anda Ram Meghwal, Aged About
36 Years, By Caste Meghwal, R/o Village Jhanwar, Tehsil
Luni, District Jodhpur, Rajasthan.
----Petitioners
Versus
1. State Of Rajasthan, Through Secretary, Rural
Development And Panchayati Raj Department,
Government Of Rajasthan, Secretariat, Jaipur,
Rajasthan.
2. Additional Chief Secretary, Rural Development And
Panchayati Raj Department, Government Of Rajasthan,
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Secretariat, Jaipur, Rajasthan.
3. District Collector, Jodhpur, Rajasthan.
----Respondents
(4) S.B. Civil Writ Petition No. 14063/2019
1. Jalam Singh S/o Shri Ganpat Singh, aged about 45
years, Village Sohado Ka Madla, Tehsil Dechu, District
Jodhpur.
2. Pehp Singh S/o Shri Berisal Singh, aged about 47
years, Village Sohado Ka Madla, Tehsil Dechu, District
Jodhpur.
3. Rafeque Khan S/o Shri Akbar Khan , aged about 28
years, Village Sohado Ka Madla, Tehsil Dechu, District
Jodhpur.
4. Ramje Khan S/o Shri Abdul Rehman, aged about 38
years, Village Sohado Ka Madla, Tehsil Dechu, District
Jodhpur.
5. Mohan Ram S/o Shri Urja Ram, aged about 50 years,
Village Sohado Ka Madla, Tehsil Dechu, District Jodhpur.
.----Petitioners
Versus
1. State of Rajasthan through Chief Secretary,
Government of Rajasthan, Jaipur, Rajasthan.
2. Additional Chief Secretary, Government of Rajasthan,
Rural Development and Panchayati Raj Department,
Secretariat, jaipur, Rajasthan.
3. Secretary, Government of Rajasthan, Rural
Development and Panchayati Raj Department,
Secretariat, Jaipur, Rajasthan.
4. District Collector, Jodhpur, Jodhpur, Rajasthan.
.----Respondents
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For Petitioner(s) : Mr. Vikas Balia, Mr. SS Rathore,
Mr. Manish Patel, Mr. JS Bhaleriya
For Respondent(s) : Mr. Sunil Beniwal, AAG
Mr. Utkarsh Singh, Asstt to AAG
JUSTICE DINESH MEHTA
Judgment
Reserved on :: 20/09/2019
Pronounced on :: 30/09/2019
Reportable
1. These four cases connected at the request of learned counsel
for the parties have commonality of facts and law and thus being
decided conjointly by this order. However, the facts of SBCWP
No.13346/2019 (Dule Singh & Ors. Vs. State of Rajasthan & Ors.)
are being taken into consideration, as the lead case.
2. The petitioners in the present writ petition, residents of
Village Kacher, Post Adinda, Tehsil Vallabhnagar have preferred the
present writ petition feeling aggrieved with proposal of the State
Government to include their Village- namely Kacher in Panchayat
Samiti Vallabhnagar. Their stand is that their Villages Kacher,
Kacher Ki Dhani and Vikela in Gram Panchayat Raamja and
Panchayat Samiti Kurabad, be kept as it is and be not included in
Panchayat Samiti Vallabhnagar, as proposed.
3. As far as petitioners' ground with respect to merit of
inclusion or exclusion of their area in a particular Gram Panchayat
or Panchayat Samiti is concerned, learned counsel for the
petitioners have not advanced their arguments, keeping their
rights reserved to raise and pursue their representation before the
Collector and thereafter with the State Government, rightly
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realising that it is a policy decision dependent upon hordes of
factors. They have, however, challenged the very initiation of the
process of delimitation by way of the notification dated
12.06.2019.
4. The petitioners have challenged not only the notification
dated 12.06.2019 but also the guidelines of even date issued for
the purpose of such exercise.
5. Mr. Vikas Balia, learned counsel for the petitioners leading
the arguments on behalf of the petitioners, navigated the Court
through the provisions of Sections 9, 10, 12, 13, 15, 101 and 115
of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to
as "the Act") with a view to lay foundation of his case and
arguments. These provisions are being reproduced hereunder for
the sake of ready reference :-
9. Establishment of Panchayat- (1) The State
Government may, by notification in the Official
Gazette, declare any local area, or a cantonment
board constituted under any law for the time being in
force to be Panchayat Circle and for every local area
declared as such there shall be a Panchayat.
(2) Every Panchayat Shall, by the name notified in the
Official Gazette, be a body corporate having perpetual
succession and common seal and shall, subject to any
restrictions and conditions imposed by or under this
act or any other law, have power to acquire, by
purchase, gift or otherwise, to hold, administer and
transfer property, both movable and immovable, and
to enter into any contract and shall, by the said name,
sue and be sued.
(3) The State Government may, at any time, after one
month's notice published in the prescribed manner
either on its own motion or at the request of the
Panchayat or of the residents of the Panchayat Circle,
and by notification in the Official Gazette, change the
name [or place of office] of any such Panchayat.
10. Establishment of Panchayat Samiti - (1) The
State Government may, by notification in the Official
Gazette, declare any local area within the same
district to be a block and for every block declared as
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such there shall be a Panchayat Samiti having
jurisdiction, save as otherwise of the provided in this
Act, over the entire block excluding such portions of
the block as are included in a Municipality or a
cantonment board constituted under any law for the
time-being in force:
Provided that a Panchayat Samiti may have its office
in any area comprised within the excluded portion of
the Panchayat Samiti.1 Inserted by Sec. 11 of
Rajasthan Act 9 of 2000, w.e.f. 6-1-2000
(2) Every Panchayat Samiti shall by the name notified
in the Official Gazette, be a body corporate having
perpetual succession and common seal and shall,
subject to any restrictions and conditions imposed by
or under this Act or any other law, have power to
acquire, by purchase, gift or otherwise, to hold,
administer and transfer property, both movable and
immovable, and to enter into any contract and shall,
by the said name, sue and be sued.
(3) The State Government may, at any time, after one
month's notice published in the prescribed manner
either on its own motion or at the request of the
Panchayat Samiti or of the residents of any area
within the block of the Panchayat Samiti, and by
notification in the name [or place of office] of any
such Panchayat Samiti
12. Composition of a Panchayat.-(1) A Panchayat
shall consist of -
(a) a Sarpanch, and
(b) directly elected Panchas from as many wards as
are determined under Sub-sec.(2)
(2) The State Government shall, in accordance with
such rules as may be framed in this behalf, determine
the number or wards for each Panchayat Circle, and
thereupon so divide the Panchayat Circle into single
member wards that the population of each ward is, so
for as practicable, the same throughout the Panchayat
Circle
Provided[xxx xxx xxx]
13. Composition of a Panchayat Samiti.-(1)A
Panchayat Samiti shall consist of -
(a) directly elected members from as many territorial
constituencies as are determine under Sub-Sec. (2);
[xxx]
(b) all members or the Legislative Assembly of the
State representing constituencies which comprise
whole or partly the Panchayat Samiti area
[(c) chairpersons of all the Panchayats falling within
the Panchayat Samiti] :
Provided that the members referred to in [Clause (b)
and (c)] shall have a right to vote in all meetings of
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the Panchayat Samiti except those for election and
removal of the Pradhan or Up-Pradhan.
(2) The State Government shall, in accordance with
such rules as may be framed in this behalf, determine
the number of territorial constituencies for each
Panchayat Samiti area and thereupon so divide such
area into single member territorial constituencies that
the population of each territorial constituency is, so
for as practicable, the same throughout the Panchayat
Samiti area:
Provided that a Panchayat Samiti area having
population not exceeding one lakh shall consist of
fifteen constituencies and in case of a Panchayat
Samiti area whose population exceeds on lakh, then
for every fifteen thousand or part thereof in excess of
one lakh, the said number of fifteen shall be increased
by two.
15. Reservation of Seats.- [(1) Seats to be filled by
direct election in a Panchayati Raj Institution shall be
reserved for-
(a) the Scheduled Casts;
(b) the Scheduled Tribes;
(c) the Backward Classes,
as also for women in accordance with the provisions
contained in the succeeding sub-sections.
(2) The number of seats reserved for the Scheduled
Castes and the Scheduled Tribes, shall bear, as nearly
as may be, the same proportion to the total number
of seats to be filled by direct election in Panchayati
Raj Institution as the population of such Castes or, as
the case may be, such Tribes in that Panchayati Raj
Institution area bears to the total population of the
area.
(3) Such percentage, not exceeding [twenty one], of
seats in a Panchayati Raj Institution at each level shall
be reserved for Backward Classes as the percentage
of the combined rural population of Scheduled Castes
and Scheduled Tribes in the concerned district in
relation to the total rural population of the district falls
short of fifty:
Provided that at least one seat shall be reserved in
each Panchayati Raj Institution at each level for
Backward Classes where the combined rural
population of Scheduled Castes and Scheduled Tribes
in the concerned district does not exceed seventy
percent of the total rural population of the district.
(4) Seats reserved in accordance with the provisions
contained in the preceding sub-sections may be
allotted by rotation to different wards or, as the case
may be different constituencies in the concerned
Panchayat Raj Institution;
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(5) Not less than one [half] of the total number of
seats reserved under [Sub-sec. (2) and (3)] shall be
reserved for women belonging to the Scheduled
Castes, the Scheduled Tribes or, as the case may be,
the Backward Classes.
(6) Not less than one [half] (including the number of
seats reserved for women belonging to the Scheduled
Castes, the Scheduled Tribes and the Backward
Classes) of the total number of seats to be filled by
direct election in every Panchayati Raj Institution shall
be reserved for women and such seats may be
allotted by rotation to different wards or, as the case
may be, constituencies in the concerned Panchayati
Raj Institution in such manner as may be prescribed.
101. Alteration in the limits of a Panchayati Raj
Institution.- (1) The State Government may, at any
time, after one month's notice published in the
prescribed manner either on its own motion or at the
request made in this behalf, and by notification in the
Official Gazette-
(a) declare the whole or a part of any local area
included within the limits of a Municipality to be a
Panchayat Circle; or
(b) include in a Panchayat Circle and such local area
or a part thereof, or as the case may be, any local
area included within the limits of another Panchayat
Circle;or
(c) otherwise alter the limits of a Panchayat Circle by
amalgamating one Panchayat Circle into another or by
splitting up a Panchayat Circle into two or more
Panchayat Circles; or
(d) exclude the whole or a part of any local area from
a Panchayat Circle, whether on its ceasing to be a
rural area or, as the case may be, for its being
included within the limits of another Panchayat Circle.
(2) Upon any action being taken under Sub-sec. (1),
the State Government shall, notwithstanding anything
contained in this Act or any other law for the time
being in force, by an order published in the Official
Gazette, make provision for the following, namely:-
(a) that in a case falling under Clause (a) of that Sub-
section, a Panchayat shall be established for the local
area declared to be a Panchayat Circle; or
(b) that, in case falling under Clause (b) of that Sub-
section, the election of the members for additional
local are shall be held; or
(c) that, in a case falling under Clause (c) of that Sub-
sec. the existing Panchayats shall stand dissolved and
new Panchayats shall be constituted -
in accordance with the provisions of this Act within a
period of six months from the appointed day; or
(d) that, in a case falling under Clause (d), the
Panchayat shall stand dissolved or, as the case may
be, the members who, in the opinion of the State
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Government, represent the local area excluded from
the Panchayat Circle shall stand removed.
Provided that for so long as a Panchayat or a new
Panchayat is not established under Clause (a), or the
case may be, under Clause (c), all powers and duties
of the Panchayat shall be exercised and performed by
such administrator as the State Government may
appoint in this behalf :
Provided further that no act of a Panchayat shall be
deemed invalid by reason of any vacancy of the
members referred to in Clause (b).
(3) Upon the exclusion of any local area of a
Municipality and its declaration as or, as the case may
be, inclusion in, a Panchayat Circle under Sub-sec. (1)
-
(a) such area shall cease to be a Municipality;
(b) the members of the Board representing the area of the Municipality so declared or included in a Panchayat Circle shall vacate their respective offices but without prejudice to their eligibility for election to the Panchayat to be constituted for such area or, as the case may be, the Panchayat, in the area whereof, such area is included;
(c) the whole of the assets testing in, and of the liabilities subsisting against the Municipality so declared to be a Panchayat or, in case where only a part of a Municipality is included in, or declared to be a Panchayat, such portion of the said assets and liabilities as the State Government may direct, shall develop upon the Panchayat declared for such area or upon the Panchayat in which such area of the Municipality is included;
(d) until new rules, notifications, orders and bye-laws are made or issued under this Act and unless the State Government otherwise directs, all rules, notifications orders and bye-laws applicable :-
(i) to the Panchayat in which such area is included; and
(ii) where the whole or a part of a Municipality is declared to be a Panchayat to the area of the Panchayat Samiti which shall, by reason of the concerned area falling in the block of such Panchayat Samiti, have jurisdiction on the area so declared to be a Panchayat.
shall continue to apply to the area so included or declared;(e) the Panchayat so established by inclusion of any area of Municipality thereon or by the declaration of a Municipality as a Panchayat shall levy or continue to levy such of the taxes as are lawfully imposed under this Act;
(f) any such area shall cease to be subject to all rules, notifications, orders and bye-laws made under the (Downloaded on 30/09/2019 at 08:57:32 PM) (10 of 26) [CW-13346/2019] Rajasthan Municipalities Act, 1959 (Rajasthan Act 38 of 1959); and
(g) the Panchayat in which such area in included or the Panchayat which is declared for such area and the Panchayat Samiti and Zila Parishad respectively of the Block and District, in which the area so included or declared falls, shall exercise jurisdiction over such area and the Municipality in which such area was included or, as the case may be, the Municipality which was established for such area shall cease of function therein.
(4) When any local area ceases to be a Panchayat and is included within the local limits of the jurisdiction of some other local authority, the Panchayat Fund and other property and rights vesting in the Panchayat shall vest in such other local authority and the liabilities of the Panchayat shall be the liabilities of such other local authority.
(5) When any local area is excluded from a Panchayat Circle and included in another Panchayat Circle, such portion of the Panchayat Fund and other property vested in the Panchayat of the first mentioned Circle shall vest in, and such portion of the liabilities thereof shall be the liabilities of the other Panchayat as the State Government may, after consulting both the Panchayats, declare by notification in the Official Gazette:
Provided that the provisions of this Sub-section shall not apply in any case where the circumstances, in the opinion of the State Government, render undesirable that transfer of any opinion of the Panchayat Fund or properties or liabilities.
[(5A) When it is considered necessary so to do, whether as a consequence of an action taken under Sub-sec. (1) or otherwise, the State Government may alter the limits of a Panchayat Samiti or a Zila Parishad area and to every such case of alteration the provisions contained in the foregoing Sub-section shall mutatis mutandis apply] (6) The State Government may, for the purpose of the foregoing sub-section, make such orders and give such directions as it may consider necessary. (7) Save as otherwise provided in this section its provisions shall have effect, notwithstanding anything contained in this Act or the Rajasthan Municipaities Act, 1959 (Rajasthan Act 38 of 1959) or any other law for the time being in force.
Explanation - In this section "appointed day" means the day from which a change referred to in Sub-sec. (1) takes place.
115. Determination of seats after each census.- Upon the publication of the figures of each census, the number of seats of a Panchayati Raj Institution (Downloaded on 30/09/2019 at 08:57:32 PM) (11 of 26) [CW-13346/2019] shall be determined by the State Government on the basis of the population of the area of the Panchayati Raj Institution concerned as ascertained at that census :
Provided that the determination of the number as aforesaid shall not affect the then composition of the Panchayati Raj Institution concerned until the expiry of the term of office elected members then in office.
6. Having taken the Court through the provisions aforesaid, learned counsel submitted that the census takes place on completion of every decade; last census was carried out in the year 2011 and such exercise would again be undertaken in the year 2021. He informed that based on the census of 2011, the State Government undertook the exercise of delimitation in the year 2014 itself, vide notification dated 11.07.2014.
7. He stated that figures of census have indisputably remained the same and the State Government has not undertaken any exercise to count the number of residents in each village, yet has initiated the exercise of delimitation vide notification dated 12.06.2019, in exercise of purported powers available to it, under Sections 9, 10 and 101 of the Act, which cannot be done until and unless fresh figures of census or population of each revenue village is available with the State.
8. In essence, argument of learned counsel for the petitioners has been that when the basis of creation of a constituency, in case of Gram Panchayat, Panchayat Samiti or Zila Parishad, is the population and the same has remained intact, fresh exercise of delimitation with the same figures cannot be initiated by the State. He argued that based on the census of 2011, delimitation exercise was undertaken in 2014 and as many as 9,888 Gram Panchayats were framed and the State is again doing the (Downloaded on 30/09/2019 at 08:57:32 PM) (12 of 26) [CW-13346/2019] delimitation exercise, taking the very figures of census of 2011;
such venture is impermissible in law being contrary to the provisions of the Act, besides being unnecessary burden on the State exchequer.
9. Inviting attention of the Court towards the proposals notified by the State- change; bifurcation; combining part or entire revenue village into another Gram Panchayat or a Panchayat into another Panchayat Samiti is per-se illegal and contrary to Section 101 of the Act. He added that the exercise being undertaken is actuated with political motives, so that people of particular community are included or excluded from particular Gram Panchayat. It was argued by Mr. Balia that as per the scheme of the Act, the exercise of delimitation or determination of seats has to be done after every ten years and at the same time it can only be done after 10 years.
10. Inviting attention of the Court towards Section 13, 14 and 15 of the Act, learned counsel contended that area of each Gram Panchayat, Panchayat Samiti and Zila Parishad is to be determined as per the provisions contained in these Sections, so that population of each Gram Panchayat or Panchayat Samiti is equal. The reservation of seats for SC, ST and Backward Classes and number of seats reserved for such classes is to be determined on the basis of number of persons of each category, residing in such constituency. He alleged that the exercise being undertaken pursuant to the notification dated 12.06.2019, is with a view to disturb/ change the constitution of reserved constituency and the State is attempting to carve out constituencies (Gram Panchayats, Panchayat Samitis and Zila Parishads) in such a manner that their political objectives are achieved.
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11. Learned counsel informed that in the delimitation exercise carried out in 2014, the average population for each Panchayat was 5000 to 7000, whereas in desert/TSP area, it was 2000 to 4000; whereas under the guidelines issued by impugned notification, the rage of population has been kept as 4000 to 6500 and for desert/TSP area, the lower and upper limit has been fixed as 2500 - 5000. Learned counsel contended that neither in any statement of the Government nor in their reply, the State has come out with the reason for which the delimitation exercise is being done, nor has it been clarified as to why the range of population for each Gram Panchayat is being changed.
12. A submission was also made that consequent to the present exercise being done, many villages or areas are likely to be taken out of the ambit of TSP area, duly notified by the Presidential Order issued under Schedule-V of the Constitution, which would adversely affect the rights of the residents of such villages on the one hand and would be contrary to Presidential Order on the other.
13. It was asserted by the petitioners that the delimitation exercise was earlier done by the State in the year 1991, based on the census of 1981 and thereafter such exercise came to be done in the year 2014- after a gap of about 23 years, as against this, having done the exercise in 2014, the State Government is again undertaking this exercise in a short span of 5 years, without any reason or rhyme.
14. It was argued by learned counsel for the petitioners that for each Gram Panchayat, Panchayat Samiti and Zila Parishad, a particular set of staff such as Gram Sewak, Division Clerks, Gram Panchayat Sahayaks etc. (4 to 5 persons) are required and many (Downloaded on 30/09/2019 at 08:57:32 PM) (14 of 26) [CW-13346/2019] of such posts are still lying vacant. A concern has been shown that as a result of the process being undertaken, the number of Gram Panchayats and Panchayat Samitis would increase, leading to scarcity of staff. The lack of staff would render the task of these small bodies difficult and thus, it would lead to administrative failure of the Panchayats. It was also urged that the new census figures would be available within a period of two years, hence, the said exercise of delimitation is futile, in as much as in the advent of census figures of 2021, this exercise will have to be taken afresh.
15. Learned counsel for the petitioners contended that by way of the delimitation process under consideration, about 250 to 300 new Gram Panchayats and 16 to 18 new Panchayat Samitis have been proposed, which would lead to more burden on the State exchequer on account of emoluments of staff and ancillary administrative expenses.
16. Main thrust of the argument of the petitioners has been that Section 115 of the Act postulates that upon publication of figures of each census, the number of seats of Panchayati Raj institutions would be determined by the State Government on the basis of the population of the area of the Panchayati Raj institution concerned and hence, if any delimitation exercise is to be done, the same can be done only after publication of the figures of each census, contends Mr. Balia. Such exercise having taken place in the year 2014, based on the census of 2011, the State cannot redo it, when the figures of census remain the same. The petitioners' case is that the exercise being undertaken by notification dated 12.06.2019 is contrary to the provisions of Section 115 of the Act. (Downloaded on 30/09/2019 at 08:57:32 PM)
(15 of 26) [CW-13346/2019] 17. Mr. Beniwal, learned Addl. Advocate General inviting
attention of the Court towards language of Section 101 of the Act contended that the expression used in opening words of Section, "the State Government, may, at any time, after one month's notice ... ... ..." gives enough discretion to the State Government to undertake the exercise of delimitation at any time, irrespective of the census. According to him, the State can declare a new Gram Panchayat and Panchayat Samiti and change its territorial boundaries and/or include or exclude certain part of the village, Gram Panchayat etc., in case the circumstances so warrant.
18. He argued that Section 115 of the Act has to be read separately, firstly because it has been incorporated in a separate Chapter i.e. Chapter-V of the Act and secondly it mandates that upon publication of figures of each census, the number of seats of a Panchayati Raj institution shall be determined by the State on the basis of fresh figures of census.
19. He argued that a perusal of the notification dated 12.06.2019 leaves no room for ambiguity that the present exercise is being undertaken under Section 101 of the Act and not in exercise of powers conferred by Section 115 of the Act. He argued that provisions of Section 101 and 115 of the Act operate on entirely different fields and thus petitioners' arguments based on provision of Section 115 is untenable and the petition is liable to be dismissed.
20. Learned Addl. Advocate General argued that in view of the provisions of Section 107G of the Act, the provisions of Chapter-IV shall have effect notwithstanding anything contained elsewhere in the Act and in view of non-obstante clause 'notwithstanding' that has been used in Section 115 of the Act, the provisions of Section (Downloaded on 30/09/2019 at 08:57:32 PM) (16 of 26) [CW-13346/2019] 101 shall prevail, hence, the State Government is well within its right to undertake the exercise of delimitation or change the territorial boundaries of any constituency, at any time.
21. During the course of arguments, this Court on 16.09.2019 directed learned Addl. Advocate General to bring on record the grounds/reasons for which the fresh delimitation exercise was underway. The proceedings of 16.09.2019 reads thus :-
Mr. Beniwal, learned AAG, prays for and allowed two days' time to bring on record the decision/reasons of the State Government, which has led/necessitated the exercise of delimitation being done presently, particularly when such exercise has already been undertaken in the year 2014.
List this case on 18.09.2016."
22. Pursuant to the above order, the State has filed an additional affidavit on 20.09.2019 and came out with the following reason/explanation for the exercise of impugned delimitation:-
"That present exercise of delimitation is aimed at constituting smaller units of Gram Panchayats to effectuate better monitoring of the public welfare schemes and improve the representation of the people residing in the newly constituted Panchayat Institutions. The present exercise of delimitations shall also result into better representation of the reserved class i.e. SC, ST, OBC and women residents. Furthermore, the distance between the Panchayat Head Quarter/Panchayat Samitis Head Quarter from the constituent villages and Gram Panchayats respectively has also been considered and attempts are being made to shorten the distance among the villages and its head quarters. For instance, there are villages in Jaisalmer district which are situated at a distance of 173 km to 152 km from their Panchayat Head Quarters : measured have been taken in the (Downloaded on 30/09/2019 at 08:57:32 PM) (17 of 26) [CW-13346/2019] present exercise of delimitation, reconstitution and constitution to bring the distance down to 21 km to 0 km. It is further pertinent to mention here that the Gram Panchayat level schemes such as GPDP and MG Narega etc. shall be better implemented in the smaller units of Panchayati Raj Institutions and the villagers shall have more autonomy in development of their own Panchayati Raj Institution in their respective Gram Panchayats.
It may be further pointed out that the newly constituted Gram Panchayats shall have influx of basic infrastructure facilities Bharat Nirman Rajiv Gandhi Seva Kendra (IT center where the general public of the villages will have access to internet banking and other public welfare schemes under one roof). Every Gram Panchayat Shall also be provided that secondary school, primary health center, aanganvadi, gram seva sahakari samiti, kisan seva kendra, pashu chikitsa kendra and patwar ghar. Moreover, at Panchayat Samiti level, state executive authorities such as District Education Officer, Block Chief Medical and Health Officer, Women and Child Development Officer, Social Empowerment Officer and Block Statistics Officer along with other relevant public officials shall be appointed to ensure that the residents of the constituent villages of a Panchayat Samiti can avail public services in their own Panchayat Samitis.
Therefore, it is evident from above submissions that the purpose of undertaking the present exercise of delimitation, reconstitution and constitution is not based on any political reasons but the said exercise is being carried out to ensure that the benefits of the public welfare schemes reaches the end person of the society. It is further relevant to mention that by virtue of reducing the maximum and minimum stipulated population for a given gram Panchayat the autonomy of the villagers of the Gram Panchayat shall improve (Downloaded on 30/09/2019 at 08:57:32 PM) (18 of 26) [CW-13346/2019] and the representation of the villagers in their respective Panchayati Raj Institution shall also be bolstered."
23. Apart from the above, learned Addl. Advocate General apprised that the schemes and funds from the Central Government are allocated per Gram Panchayat and increase in the number of Gram Panchayat is thus aimed to get more funds from the Central Government to ensure welfare of the public. He submitted that if the number of Gram Panchayats are more, naturally, state would be benefited by more aid from the Central Government and the budgetary allocation also would be more. The aforesaid stand of the State is duly cataloged in following part of the affidavit above referred :-
"It may be further pointed out that the average funds available to a Gram Panchayat from State finance Commission, Central Finance Commission and other schemes and projects is about 1.52 crore rupees whereas, the average funds available to a panchayat samiti is about 6 to 7 crore. Moreover, the Panchayat Samitis and Gram Panchayats also have their own income resources from which development activities are rendered."
24. With respect to petitioners' apprehension that consequent to change of territorial boundaries of Gram Panchayats, Panchayat Samitis etc. the benefit available to the residents of TSP area would be drifted away, it was assured by learned Addl. Advocate General that the petitioners' apprehension is baseless and any inclusion or exclusion of District, Block, Tehsil, Panchayat Samiti etc. in a TSP area can only be done by Presidential notification and no such inclusion/exclusion of the TSP area is under way. (Downloaded on 30/09/2019 at 08:57:32 PM)
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25. Learned Addl. Advocate general submitted that a coordinate Bench at Jaipur of this Court has refused to exercise judicial review in two writ petitions viz. (1) Feliram Bairwa & Ors. Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.14792/2019) and (2) Gani Mohd. & Ors. Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.15466/2019), particularly in case of Feliram (supra) while observing as under :-
"Demarcation of Gram Panchayats and allotting particular villages to a Gram Panchayat is an administrative power of the State Government wherein no judicial review is required and no rights of any persons are either taken away or granted on account of formation or division of Gram Panchayats. Gram Panchayats should continue under Article 243C of the constitution of India in terms of the State Government Policies."
26. In rejoinder, Mr. Balia contended that Section 115 of the Act is married with Section 9, 10 and 11 of the Act and it cannot be read in isolation. The reservation of constituency based on SC, ST or Other Backward Classes has to be done, based on the determination of seats as envisaged under Section 115 of the Act.
27. Upon Court's query as to what prejudice is likely to be caused to the petitioners, if the exercise being undertaken by the State sails through, Mr. Balia, learned counsel based on the judgment of Hon'ble Supreme Court, rendered in the case State of M. P. & Ors. Vs. Devilal, reported in 1986 AIR (SC) 434, contended that such exercise will lead to gerrymandering. He argued that since population has not changed nor has the caste changed, the exercise in question is being done to gain political advantage by the party in power or to a particular person. By the impugned exercise, the party in power is seeking to strengthen (Downloaded on 30/09/2019 at 08:57:32 PM) (20 of 26) [CW-13346/2019] their constituencies by shifting their territorial boundaries or by moving the persons of particular community to a particular Gram Panchayat or Panchayat Samiti.
28. Another judgment of Hon'ble the Apex Court was cited by Mr. Balia, rendered in the case of Atma Singh & Ors. Vs. State of Punjab & Ors., reported in 1981 AIR (SC) 1173.
29. Heard learned counsel for the parties.
30. A short, yet important question of law has been posed for consideration of this Court: "whether the State can carry out process of delimitation, even when the figures of census since last such process remains the same."
31. The exercise of delimitation, triggered vide notification dated 12.06.2019, traces its source from Section 101 of the Act. A bare reading of the provisions contained therein reveals that they in no ambiguous terms provide that the State government may "at any time after one months notice" alter the limits of Panchayati Raj Institutions.
32. If the provisions of Section 101 of the Act are compared in juxtaposition with Section 115 and other provisions of the Act, it brings out a clear distinction not only in the language used in these provisions, but also in the area or sphere they intend/ meant to operate. Section 101 of the Act speaks of limits of Panchayat Samitis whereas Section 115 of the Acts talks of number of seats of Panchayati Raj Institutions. Section 115 of the Act lays emphasis upon census, whereas Section 101 of the Act has not been made dependent upon the census. A close reading of Section 115 of the Act reveals that it casts upon the State Government, a duty to determine number of seats of Panchayati Raj Institutions, on publication of figures of each (Downloaded on 30/09/2019 at 08:57:32 PM) (21 of 26) [CW-13346/2019] census. In other words, after each census, the State is required to determine number of seats of Panchayati Raj Institutions, such as Gram Panchayat, Panchayat Samiti etc. A further look at the proviso appended to Section 115 of the Act shows that notwithstanding the new figures of census, a saving Clause has been provided that the determination of number shall not affect the then composition of Panchayati Raj Institution until the expiry of term of Office of elected representatives.
33. Section 115 of the Act, enjoins upon the State to determine number of seats, based on the number of persons residing in a District and then to have a rationalization of number of Panchayat Samitis and Gram Panchayats, so that the value of each vote throughout the State, rather District remains equal. Such provision seems to have been incorporated to take care of influx of persons or increase in population in a District or departure/ outflow of populous from one constituency to other and/or to consider increase/decrease in the population between two census.
34. As against this, provision of Section 101 of the Act speaks of limits of Panchayati Raj Institutions. Section 101 of the Act is meant to deal with the territorial trajectories of Panchayati Raj Institutions. As such, for reason of migration of population from one Panchayati Raj Institution to other or for any other administrative exigency, including increase in number of seats as decided pursuant to a decision taken in exercise of Section 115 of the Act, the State can undertake the exercise of delimitation.
35. The provisions contained in sub-section (1) of Section 101 of the Act has a wide expanse not only because of the expression used "at any time", but also because of the purpose for which this provision has been enacted. Section 101 of the Act, which is (Downloaded on 30/09/2019 at 08:57:32 PM) (22 of 26) [CW-13346/2019] intended for alteration in the limits of Panchayati Raj Institutions, can be invoked for any reason, including the reason of increase/decrease in number of seats.
36. In considered opinion of this Court, provisions of Section 115 of the Act are enabling. Hence, the meaning sought to be given by the petitioners and their argument based upon Section 115 is liable to be, and hereby rejected.
37. It cannot be said with certitude that the delimitation exercise, undertaken in the year 2014, was done in exercise of powers under Section 115 of the Act. A perusal of the earlier notification dated 11.07.2014 proposing delimitation reveals that the same was also done in exercise of powers under Section 9, 10 and 101 of the Act. May be, in the year 2014, the same was necessitated as a result of arrival of new figures of census(2011), but it cannot be said as a principle or rule of general applicability that the delimitation exercise was done and can be done only after each census.
38. The State has filed a reply and given cogent reason(s) for which the exercise is being done. The reasons duly reproduced in para No. 22 show that the State has thought it fit to increase number of Gram Panchayats, with a view to better administration and also being moved by the Central aid, which it receives per Gram Panchayat. The reason given by the State that average funds available to Gram Panchayat from Central Finance Commission and other Schemes and Projects are bound to increase, consequent to increase in the number of Gram Panchayats and Panchayat Samitis, is both convincing and countenancing. State has decided to reduce limit of minimum and maximum persons of each Gram Panchayat, with a view to ensure (Downloaded on 30/09/2019 at 08:57:32 PM) (23 of 26) [CW-13346/2019] better administrative control. This Court has no reason to doubt that such decision will result in synergy of the resources and equitable distribution thereof.
39. There is hardly any illegality or violation of statutory or Constitutional provisions. As far as Sections 9, 10, 11 and 12 of the Act are concerned, they go hand in hand with Section 101 of the Act and so also with Section 115 of the Act. The reservation of seats depends upon number of seats available in one District and/or Panchayat Samiti; whereas number of persons or voters in one Panchayati Raj Institution depends upon a combined exercise to be done under Section 101 and 115 of the Act.
40. Once the State Government determines the number of seats per Panchayati Raj Institution, as mandated by Section 115 of the Act, it will naturally have a bearing on number of seats reserved for each reserved category. Similarly, while undertaking the delimitation exercise under Section 101 of the Act, based upon the geographical boundaries and the number of persons in each Panchayati Raj Institution, the seat(s) is/are required to be reserved, based on the population of a particular community viz. SC, ST or other backward classes.
41. So far as the petitioners' argument that delimitation and proposed increase in number of Gram Panchayats and Panchayat Samitis would burden the State exchequer and lead to administrative hiccups, as the State is already facing scarcity of staff and resources, can neither be accepted as a ground to get the exercise of delimitation quashed, nor can it be a reason to be examined by the Constitutional Courts.
42. May be, the State is not having sufficient staff to man the newly constituted Panchayati Raj Institution, but for that, the (Downloaded on 30/09/2019 at 08:57:32 PM) (24 of 26) [CW-13346/2019] State has to take suitable steps or measures including recruiting the competent officers to hold such posts. If the resources, which the State is likely to generate as a result of increase in number of Panchayati Raj Institutions, is compared with the approximate expenditure, the State will have to incur or the administrative difficulties, which it is likely to face, the balance unquestionably tills towards increase in number of Panchayati Raj Institutions. Once, more Panchayati Raj Institutions are formed and the State starts getting more finance and funds, then, initial teething problem may well be taken care of.
43. Argument of Mr. Beniwal, that in light of the non-obstante clause used in Section 107G of the Act, the provisions of Section 101 of the Act will prevail over Section 115, is also misplaced as all the three provisions have been incorporated in different Chapters. A perusal of Section 107G of the Act reveals that though the said provision provides for an overriding effect, however, the same has been made applicable to the provisions of the said Chapter i.e. Chapter-IVA; whereas Section 101 and Section 115 of the Act are part of Chapter-IV and V respectively. As such, the over-riding effect as stipulated by Section 107G cannot be extended to Section 101 of the Act.
44. As far as the argument of Mr. Balia on the principle of 'gerrymandering', taken from the judgment of Hon'ble the Supreme Court in the case of State of MP Vs. Devilal (supra), is concerned, there is complete absence of pleading and facts to support such stance. In the case before the Supreme Court, the facts were that the State had undertaken the delimitation exercise during the pendency of election, which was considered by the (Downloaded on 30/09/2019 at 08:57:32 PM) (25 of 26) [CW-13346/2019] Supreme Court and based on the principle of gerrymandering, the Supreme Court held that such exercise, actuated with political motives, was not permissible.
45. As against this, the exercise of delimitation in question is being done well before the expiry of term of the existing Panchayati Raj Institutions and the elections have not been declared so far. The elections would be held, naturally, after this exercise is over. As such the judgment cited by Mr. Balia is clearly distinguishable on facts on one hand and is not applicable for want of specific pleadings in this regard. Sweeping argument that the exercise of delimitation in question is 'gerrymandering', cannot be countenanced in abstract or in absence of requisite facts.
46. As far as another judgment, relied upon by Mr. Balia in case of Atma Ram (supra) is concerned, in considered opinion of this Court, the issues in the said judgment are not at all germane to the case at hands, inasmuch as in the said judgment, inhabitants were denied their right to vote, due to interim orders and circumstances existing at the relevant time, However, in the present facts situation, the entire fulcrum is the impugned delimitation and no such disfranchisement has taken place. There being clear distinction, this case also does not help the cause of the petitioners.
47. Judgments rendered by co-ordinate Bench at Jaipur of this Court; Feliram (supra) and Gani Mohd. (supra), have been determined on their very own facts. However, since important question of law of the interpretation of provisions of the Act is involved in the present case, they do not come in the way of this Court to pronounce upon such question.
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48. As a result of foregoing discussions, this Court does not find any substance in petitioners' contention that the exercise of delimitation having been made in the year 2014, based upon the Census of 2011, no de-novo exercise of delimitation can be done, given the fact that its basis, i.e., population, continues to be the same.
49. As an abundant caution, it is observed that this Court has simply pronounced upon the question as to whether the exercise of delimitation being undertaken by the State in pursuance of the notification dated 12.06.2019 is permissible or not. It has not touched upon the merit(s) of objections raised by the petitioners with respect to keeping a particular village or group of persons in a particular Panchayat Samiti. The petitioners shall, however, be free to raise their individual grievance(s) before the competent authority viz. Collector or the State, as the case may be.
50. These four writ petitions, so also all the interlocutory applications filed therein, are dismissed.
(DINESH MEHTA),J 299, 241, 249 & 14063/19-ArunV/-
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