Rajasthan High Court - Jaipur
Heera Lal Mali S/O Shri Ram Khiladi Mali vs State Of Rajasthan on 11 June, 2020
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No.2509/2020
Smt.Munesh Devi W/o Shri Narendra, Aged About 44 Years,
Resident of Village Panchayat, Gram Panchayat Rodwal,
Panchayat Samiti Neemrana, District Alwar (Raj.)
----Petitioner
Versus
1. State Of Rajasthan, Through Additional Chief Secretary,
Rural Development, Panchayati Raj Department,
Government Secretariat, Jaipur.
2. The Commissioner, Panchayati Raj Department, Jaipur.
3. Secretary, State Election Commission, Second Floor, Vikas
Khand, Government Secretariat, Jaipur.
4. The District Collector, Alwar (Raj.)
5. Chief Executive Officer, Zila Parishad Alwar.
----Respondents
Connected With
S.B. Civil Writ Petition No. 2264/2020
1. Sampoorna Nand Sharma S/o Shri Nathu Lal Sharma,
Aged About 44 Years, Resident of Made Walao Ka
Mohalla, Manoharpur Shahpura, District Jaipur (Raj.).
2. Bhagwan Sahai Raiger S/o Shri Khetaram Raiger,
Resident Of Ward No. 39, Ambedkar Nagar, Manoharpur,
Tehsil Shahpura, District Jaipur (Raj.)
3. Yogesh Gupta S/o Shri Om Prakash Gupta, Resident Of
Ward No. 39, Ambedkar Nagar, Manoharpur, Tehsil
Shahpura, District Jaipur (Raj.)
----Petitioners
Versus
1. State Of Rajasthan, Through Its Principal Secretary Rural
Development And Panchayati Raj Department, Govt.
Secretariat, Jaipur.
2. The Election Commission Of Rajasthan, Secretariat, Jaipur
Through Chief Election Commissioner.
3. District Collector, Jaipur (Raj.)
4. Sub-Divisional Officer, Shahpura, District Jaipur (Raj.)
----Respondents
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S.B. Civil Writ Petition No. 2568/2020
Rajni Kaur D/o Shri Rajendra Singh, Aged About 23 Years, R/o
Village Punay, Panchayat Samiti Nagar, District Bharatpur,
Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary,
Panchayati Raj Department And Rural Development,
Government Of Rajasthan.
2. District Collector, Bharatpur.
3. Election Reservation Authority Cum-S.d.o., Nagar, District
Bharatpur.
4. State Election Commission, Panchayati Raj, Rajasthan
Through Chief Election Commissioner.
----Respondents
S.B. Civil Writ Petition No. 2569/2020
Lokendra Choudhary S/o Shri Ram Lakhan, Aged About 24
Years, R/o Village Pathroda, Gram Panchayat Mudhisa, Panchayat
Samiti Nagar, District Bharatpur, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary,
Panchayati Raj Department And Rural Development,
Government Of Rajasthan.
2. District Collector, Bharatpur.
3. Election Reservation Authority, Cum-S.d.o., Nagar, District
Bharatpur.
4. State Election Commission, Panchayati Raj, Rajasthan
Through Chief Election Commissioner.
----Respondents
S.B. Civil Writ Petition No. 2722/2020
Kaluram Meena Son Of Kanhaiya Lal Meena, Aged About 40
Years, R/o Village 24, Ranho, Khatumbar, Tehsil Lalsot, District
Dausa, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Additional Chief
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Secretary Rural Development And Panchayati Raj
Department, Govt. Secretariat, Govt. Of Rajasthan, Jaipur
(Raj.)
2. Director Cum Special Administration Secretary, Rural
Development And Panchayati Raj Department, Govt.
Secretariat, Govt. Of Rajasthan, Jaipur (Raj.)
3. The District Collector, Dausa.
4. The Sub-Divisional Officer, Lalsot, District Dausa,
Rajasthan.
----Respondents
S.B. Civil Writ Petition No. 2725/2020
Manraj Meena Son Of Shri Nathu Lal Meena, Aged About 24
Years, Resident Of Shivsinghpura, Nohra Wali Dhani, Village
Panchayat Shivsinghpura, Tehsil Lalsot, District Dausa Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Additional Chief
Secretary Rural Development And Panchayati Raj
Department, Govt. Secretariat, Govt. Of Rajasthan, Jaipur
(Raj.)
2. Director Cum Special Administration Secretary, Rural
Development And Panchayati Raj Department, Govt.
Secretariat, Govt. Of Rajasthan, Jaipur (Raj.)
3. The District Collector, Dausa.
4. The Sub-Divisional Officer, Lalsot, District Dausa,
Rajasthan.
----Respondents
S.B. Civil Writ Petition No. 2727/2020
Heera Lal Mali S/o Shri Ram Khiladi Mali, Aged About 32 Years,
R/o Village Tad Wali Dhani, Suratpura, District Dausa, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Additional Chief
Secretary Rural Development And Panchayati Raj
Department, Govt. Secretariat, Govt. Of Rajasthan, Jaipur
(Raj.)
2. Director Cum Special Administration Secretary, Rural
Development And Panchayati Raj Department, Govt.
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Secretariat, Govt. Of Rajasthan, Jaipur (Raj.)
3. The District Collector, Dausa.
4. The Sub-Divisional Officer, Lalsot, District Dausa,
Rajasthan.
----Respondents
S.B. Civil Writ Petition No. 2728/2020
Shiv Shankar Sharma Son Of Shri Nand Kishore Sharma, Aged
About 38 Years, R/o Village Panchyat Chandsen, Gulab Colony,
Tehsil Lalsot, District Dausa, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Additional Chief
Secretary Rural Development And Panchayati Raj
Department, Govt. Secretariat, Govt. Of Rajasthan, Jaipur
(Raj.)
2. Director Cum Special Administration Secretary, Rural
Development And Panchayati Raj Department, Govt.
Secretariat, Govt. Of Rajasthan, Jaipur (Raj.)
3. The District Collector, Dausa.
4. The Sub-Divisional Officer, Lalsot, District Dausa,
Rajasthan.
----Respondents
S.B. Civil Writ Petition No. 2731/2020
Satendra Singh Son Of Shri Shambhu Singh, Aged About 55
Years, Resident Of Village And Post- Indawa Ward No. 2, Lalsot
District Dausa Rajasthan
----Petitioner
Versus
1. State Of Rajasthan, Through Its Additional Chief
Secretary Rural Development And Panchayati Raj
Department, Govt. Secretariat, Govt. Of Rajasthan, Jaipur
(Raj.)
2. Director Cum Special Administration Secretary, Rural
Development And Panchayati Raj Department, Govt.
Secretariat, Govt. Of Rajasthan, Jaipur (Raj.)
3. The District Collector, Dausa.
4. The Sub-Divisional Officer, Lalsot, District Dausa,
Rajasthan.
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----Respondents
S.B. Civil Writ Petition No. 2745/2020
Pawan Son Of Onkar, Aged About 34 Years, R/o 8, Bada Thala Ki
Dhani, Digo, Tehsil - Lalsot, District Dausa Rajasthan
----Petitioner
Versus
1. State Of Rajasthan, Through Its Additional Chief
Secretary Rural Development And Panchayati Raj
Department, Govt. Secretariat, Govt. Of Rajasthan, Jaipur
(Raj.)
2. Director Cum Special Administration Secretary, Rural
Development And Panchayati Raj Department, Govt.
Secretariat, Govt. Of Rajasthan, Jaipur (Raj.)
3. The District Collector, Dausa.
4. The Sub-Divisional Officer, Lalsot, District Dausa,
Rajasthan.
----Respondents
S.B. Civil Writ Petition No. 2747/2020
Indraj Raigar Son Of Kanaram, Aged About 32 Years, R/o 320,
Raigaron Ki Dhani, Village Panchyat Mahariya, Tehsil-Lalsot,
District-Dausa Rajasthan
----Petitioner
Versus
1. State Of Rajasthan, Through Its Additional Chief
Secretary Rural Development And Panchayati Raj
Department, Govt. Secretariat, Govt. Of Rajasthan, Jaipur
(Raj.)
2. Director Cum Special Administration Secretary, Rural
Development And Panchayati Raj Department, Govt.
Secretariat, Govt. Of Rajasthan, Jaipur (Raj.)
3. The District Collector, Dausa.
4. The Sub-Divisional Officer, Lalsot, District Dausa,
Rajasthan.
----Respondents
S.B. Civil Writ Petition No. 3225/2020
Navratan S/o Shri Satya Prakash, Aged About 36 Years, Resident
Of Village Panchayat, Gram Panchayat Dosod, Panchayat Samiti
Neemrana, District Alwar (Raj.)
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----Petitioner
Versus
1. State Of Rajasthan, Through Additional Chief Secretary,
Rural Development Panchayati Raj Department,
Government Secretariat, Jaipur.
2. The Commissioner, Panchayati Raj Department, Jaipur
3. Secretary, State Election Commission, Second Floor, Vikas
Khand, Government Secretariat, Jaipur.
4. The District Collector, Alwar (Raj.)
5. Chief Executive Officer, Zila Parishad Alwar.
----Respondents
For Petitioner(s) : Mr.Ashwinee Kumar Jaiman,
Mr.G.S.Gill, Mr.Praveen Kumar and
Mr.Nawal Singh Sikarwar, Advocates.
For Respondent(s) : Ms.Sheetal Mirdha, Addl. Advocate
General with Mr.Prateek Singh,
Advocate. Mr.Nikhil Simlote,
Advocate.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Judgment
Judgment Reserved on : 30th May, 2020
REPORTABLE
Date of Pronouncement : 11th June, 2020
By the Court:
1. These writ petitions primarily challenge the orders dated 24.01.2020 and 27.01.2020 issued by the State Government giving direction to all the District Collectors and Sub Divisional Officers in the State of Rajasthan for reconstitution of Gram Panchayats and further provide for reservation to General- Female/OBC-Female/OBC/SC/ST in the Panchayat Elections in different categories by way of draw of lots.
2. The writ petitions also challenge the consequential orders issued by different Election Registration Officer (SDM) by drawing (Downloaded on 11/06/2020 at 09:13:01 PM) (7 of 65) [CW-2509/2020] the lottery in particular Gram Panchayat in compliance of the orders issued on 24.01.2020 and 27.01.2020.
3. These writ petitions are being decided by this common order, as the petitions involve a common question of law and interpretation of various provisions contained in the Constitution of India, Rajasthan Panchayati Raj Act, 1994 and the Rajasthan Panchayati Raj (Election) Rules, 1994.
4. This Court will take S.B. Civil Writ Petition No. 2509/2020 as a lead case and facts pleaded in the said petition are noted for the purpose of deciding the controversy involved in other writ petitions raising the legal issue.
5. The petitioner has pleaded that she is a resident and voter of village Rodwal, Panchayat Samiti Neemrana, District Alwar and as such she is entitled to contest election in the Gram Panchayat Rodwal. The petitioner has pleaded that a notification dated 15.11.2019 was issued by the respondents under Section 101 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter shall be referred as "Act of 1994") whereby certain Gram Panchayats in the Panchayat Samiti Neemrana were reconstituted and as such total 33 Gram Panchayats were notified in the Panchayat Samiti Neemrana.
6. The petitioner has stated that State Election Commission declared the election programme and lottery was drawn on 18.12.2019. In the draw of lots, Gram Panchayat Rodwal was reserved for General Female candidate and it was clear to all concerned that the post of Sarpanch in Gram Panchayat Rodwal, was reserved for General Female candidate. (Downloaded on 11/06/2020 at 09:13:01 PM)
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7. The petitioner has pleaded that the election programme was issued by the State Election Commission and the schedule published revealed that in the first spell, nominations were to be filled on 07.01.2020 and the date of election was 17.01.2020. The petitioner has pleaded that in Alwar District, elections of 29 Gram Panchayats of Panchayat Samiti Neemrana, were scheduled to be held in the first spell i.e. 17.01.2020.
8. The petitioner has pleaded that in view of the election programme declared by the State Election Commission, the petitioner filed her nomination form to contest election being General Female candidate for the post of Sarpanch and she also deposited the requisite amount and completed the necessary formalities and she was also issued electoral symbol by the respondents.
9. The petitioner has pleaded that certain Gram Panchayats were created, constituted and amalgamated after notification dated 15/16.11.2019 and the same was the subject matter of challenge before the Division Bench of Principal Seat at Jodhpur and the Division Bench in Jai Singh Vs. State of Rajasthan and Others (D.B. Civil Writ Petition No. 17993/2019) and other connected matters, had quashed and set aside all the subsequent notifications issued after dated 15/16.11.2019 vide order dated 13.12.2019 and as such the creation, re-creation and amalgamation of such Gram Panchayats was declared null and void by the Division Bench.
10. The petitioner has pleaded that the order of Division Bench dated 13.12.2019 was put to challenge before the Apex Court by the State Government by way of filing SLP No. 30471/2019 and (Downloaded on 11/06/2020 at 09:13:01 PM) (9 of 65) [CW-2509/2020] the effect and operation of the order passed by the Division Bench of this Court, was stayed by the Apex Court vide order dated 08.01.2020
11. The petitioner has pleaded in the writ petition that the State Election Commission issued an order dated 09.01.2020 in compliance of the direction issued by the Apex Court in SLP No. 30471/2019 (State of Rajasthan Vs. Jai Singh) and it was declared that the elections were to be held in Gram Panchayats, as per the earlier election programme of the State Election Commission. The petitioner has pleaded that though she had filed her nomination form but due to passing of the interim order dated 08.01.2020 by the Apex Court, the State Election Commission had decided not to hold elections in the Panchayat Samiti Neemrana and as such the elections did not take place on the stipulated date i.e. 17.01.2020.
12. The petitioner has pleaded that initially a letter dated 16.01.2020 was issued by the State Election Commission to the Additional Chief Secretary, Rural Development and Panchayati Raj Department communicating that the interim order passed by the Apex Court dated 08.01.2020 was not a final order and therefore a pragmatic view was required to be taken in the light of interim directions issued by the Apex Court.
13. The petitioner has pleaded that on 24.01.2020, an order/letter was issued by the Additional Chief Secretary, Rural Development and Panchayati Raj Department to all the District Collectors and Sub-Divisional Officers mentioning that in compliance of the order dated 08.01.2020 passed by the Apex Court, the election will be held in accordance with the notifications dated 15.11.2019, 23.11.2019, 01.12.2019 and 12.12.2019 and (Downloaded on 11/06/2020 at 09:13:01 PM) (10 of 65) [CW-2509/2020] therefore, as per the direction issued by the Apex Court, newly created Gram Panchayats and Panchayat Samitis and further re- constituted as per the notifications dated 15.11.2019,01.12.2019 and 12.12.2019, should be included and the reservation process be re-determined.
14. The petitioner has pleaded that in terms of the letter dated 24.01.2020, so far as Gram Panchayat Rodwal is concerned, the respondents again have drawn lottery on 04.02.2020 and now the Gram Panchayat Rodwal has been reserved for OBC Female candidate without any basis.
15. For convenience sake, synopsis of all the writ petitions, as provided by the respondents, depicting the number of Gram Panchayats in a particular Panchayat Samiti and the change carried out by the State Government and challenge to these orders, is reproduced hereunder:-
"(1) S.B.Civil Writ Petition No.2509/2020 Smt. Munesh Devi Vs. State of Rajasthan & Ors.
Panchayat Samiti - Neemrana, Distt. Alwar As per Notification dated 15.11.2019 Total Gram SC ST OBC General Panchayats category category category category 33 05 01 07 20 16 reserved 02 - 03 11 for Female Gram Panchayat - Rodwal Reservation Order/Lottery dated 18.12.2019 - General (Female) As per Notification dated 01.12.2019 -
Total Gram SC ST OBC General
Panchayats category category category category
34 05 01 07 21
16 reserved 02 - 03 12
for Female
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Reservation Order/Lottery dated 04.02.2020 - OBC (Female) Note:
1. New Gram Panchayat - Nangli Salai constituted, which was reserved for Schedule Caste (Female)
2. With the increase of seats, roster/reservation of the entire Panchayat Samiti changed. As Gram Panchayat Rodwal was not reserved for SC or ST category, it was included in draw of lottery for OBC category and got reserved for OBC (Female).
(2) S.B.Civil Writ Petition No.2727/2020 Heera Lal Mali Vs. State of Rajasthan & Ors.
Panchayat Samiti - Lalsot, Distt. Dausa As per Notification dated 15.11.2019 Total Gram SC ST OBC General Panchayats category category category category 35 08 08 01 18 Gram Panchayat - Suratpura Reservation Order/Lottery dated 21.12.2019 - General Female As per Notification dated 01.12.2019 -
Total Gram SC ST OBC General
Panchayats category category category category
38 09 09 01 19
Reservation Order/Lottery dated 03.02.2020 - Schedule Tribe (ST) Female Note:
1. New three Gram Panchayats added i.e. Gol (SC), Ladpura (SC) and Lakhanpura (SC)
2. With the increase of seats, roster/reservation of the entire Panchayat Samiti changed. As a result Gram Panchayat - Suratpura got reserved for Schedule Tribe (ST) Female.
(3) S.B.Civil Writ Petition No.2725/2020 Manraj Meena Vs. State of Rajasthan & Ors.
Panchayat Samiti - Lalsot, Distt. Dausa As per Notification dated 15.11.2019 Total Gram SC ST OBC General Panchayats category category category category 35 08 08 01 18 Gram Panchayat - Shivsinghpura Reservation Order/Lottery dated 21.12.2019 - SC As per Notification dated 01.12.2019 -
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Total Gram SC ST OBC General
Panchayats category category category category
38 09 09 01 19
Reservation Order/Lottery dated 03.02.2020 - OBC - Female Note:
1. New three Gram Panchayats added i.e. Gol (SC), Ladpura (SC) and Lakhanpura (SC)
2. With the increase of seats, roster/reservation of the entire Panchayat Samiti changed. As a result Gram Panchayat - Shivsinghpura got reserved for OBC - Female.
(4) S.B.Civil Writ Petition No.2747/2020 Indraj Raigar Vs. State of Rajasthan & Ors.
Panchayat Samiti - Lalsot, Distt. Dausa
As per Notification dated 15.11.2019
Total Gram SC ST OBC General
Panchayats category category category category
35 08 08 01 18
Gram Panchayat - Mahariya
Reservation Order/Lottery dated 21.12.2019 - Schedule Caste (SC) As per Notification dated 01.12.2019 -
Total Gram SC ST OBC General
Panchayats category category category category
38 09 09 01 19
Reservation Order/Lottery dated 03.02.2020 - General Note:
1. New three Gram Panchayats added i.e. Gol (SC), Ladpura (SC) and Lakhanpura (SC)
2. With the increase of seats, roster/reservation of the entire Panchayat Samiti changed. As a result Gram Panchayat - Mahariya got reserved for General.
(5) S.B.Civil Writ Petition No.2731/2020 Satendra Singh Vs. State of Rajasthan & Ors.
Panchayat Samiti - Lalsot, Distt. Dausa
As per Notification dated 15.11.2019
Total Gram SC ST OBC General
Panchayats category category category category
35 08 08 01 18
Gram Panchayat - Indawa
Reservation Order/Lottery dated 21.12.2019 - General (Downloaded on 11/06/2020 at 09:13:01 PM) (13 of 65) [CW-2509/2020] As per Notification dated 01.12.2019 -
Total Gram SC ST OBC General
Panchayats category category category category
38 09 09 01 19
Reservation Order/Lottery dated 03.02.2020 - Schedule Caste (SC) Note:
1. New three Gram Panchayats added i.e. Gol (SC), Ladpura (SC) and Lakhanpura (SC)
2. With the increase of seats, roster/reservation of the entire Panchayat Samiti changed. As a result Gram Panchayat - Indawa got reserved for Schedule Caste (SC)
3. Gram Panchayat Indawa got constituted in year 2015 and was reserved for Schedule Tribe (ST).
(6) S.B.Civil Writ Petition No.2728/2020 Shiv Shankar Sharma Vs. State of Rajasthan & Ors.
Panchayat Samiti - Lalsot, Distt. Dausa
As per Notification dated 15.11.2019
Total Gram SC ST OBC General
Panchayats category category category category
35 08 08 01 18
Gram Panchayat - Chandsen
Reservation Order/Lottery dated 21.12.2019 - General As per Notification dated 01.12.2019 -
Total Gram SC ST OBC General
Panchayats category category category category
38 09 09 01 19
Reservation Order/Lottery dated 03.02.2020 - Schedule Tribe (ST) Note:
1. New three Gram Panchayats added i.e. Gol (SC), Ladpura (SC) and Lakhanpura (SC)
2. With the increase of seats, roster/reservation of the entire Panchayat Samiti changed. As a result Gram Panchayat - Chandsen got reserved for Schedule Tribe (ST).
(7) S.B.Civil Writ Petition No.3225/2020 Navratan Vs. State of Rajasthan & Ors.
Panchayat Samiti - Neemrana, Distt. Alwar As per Notification dated 15.11.2019 Total Gram SC ST OBC General Panchayats category category category category 33 05 01 07 20 (Downloaded on 11/06/2020 at 09:13:01 PM) (14 of 65) [CW-2509/2020] 16 reserved 02 - 03 11 for Female Gram Panchayat - Dosod Reservation Order/Lottery dated 18.12.2019 - General As per Notification dated 01.12.2019 -
Total Gram SC ST OBC General
Panchayats category category category category
34 05 01 07 21
16 reserved 02 - 03 12
for Female
Reservation Order/Lottery dated 04.02.2020 - General (Female) Note:
1. New Gram Panchayat - Nangli Salai constituted, which was reserved for Schedule Caste (Female)
2. With the increase of seats, roster/reservation of the entire Panchayat Samiti changed. As reservation for Female in General category increased from 11 to 12, thus in draw of lottery Gram Panchayat Dosod came to be reserved for General (Female).
8) S.B.Civil Writ Petition No.2569/2020 Lokendra Choudhary Vs. State of Rajasthan & Ors. Panchayat Samiti - Nagar, Distt. Bharatpur As per Notification dated 15.11.2019 Total Gram SC ST OBC General Panchayats category category category category 43 06 01 09 27 Gram Panchayat - Mundhera Reservation Order/Lottery dated 18.12.2019 - OBC Reservation Order/Lottery dated 01.02.2020 - Schedule Caste (SC) As per Notification dated 01.12.2019 - the number of Gram Panchayats in Panchayat Samiti Nagar remained the same, however in newly constituted Gram Panchayat Raipur Suketi an additional village namely Kurken was added to the said Gram Panchayat, which resulted in the change of number of wards from 05 to 07 and the demographic situation of the said Gram Panchayat stood changed accordingly. It is submitted that Gram Panchayat Mundhera is newly constituted carved out of Gram Panchayat from Tarondar, which was reserved for SC category in the year 1995. As the (Downloaded on 11/06/2020 at 09:13:01 PM) (15 of 65) [CW-2509/2020] percentage of Schedule Caste population in Gram Panchayat Mundhera and Raipur Suketi was 23.57% and 21.85% respectively, the said two Gram Panchayats were reserved for Schedule Caste (SC) category in the exercise for reservation carried out on 01.02.2020.
Note:
1. Reservation has been carried out according to the direction/guidelines issued by Department vide Letter dated 27.01.2020.
(9) S.B.Civil Writ Petition No.2568/2020 Rajni Kaur Vs. State of Rajasthan & Ors.
Panchayat Samiti - Nagar, Distt. Bharatpur As per Notification dated 15.11.2019 Total Gram SC ST OBC General Panchayats category category category category 43 06 01 09 27 Gram Panchayat - Punai Reservation Order/Lottery dated 18.12.2019 - General Reservation Order/Lottery dated 01.02.2020 - OBC As per Notification dated 01.12.2019 - the number of Gram Panchayats in Panchayat Samiti Nagar remained the same, however in newly constituted Gram Panchayat Raipur Suketi an additional village namely Kurken was added to the said Gram Panchayat, which resulted in the change of number of wards from 05 to 07 and the demographic situation of the said Gram Panchayat stood changed accordingly. It is submitted that with the inclusion of Village Kurken the share of Schedule Caste population increased from 12.24% to 21.85% which warranted that the exercise of reservation was to be re-conducted. The said exercise resulted in Gram Panchayat Punai being reserved for OBC category. Note:
1. Reservation has been carried out according to the direction/guidelines issued by Department vide Letter dated 27.01.2020.
(10) S.B.Civil Writ Petition No.2745/2020 Pawan Vs. State of Rajasthan & Ors.
Panchayat Samiti - Lalsot, Distt. Dausa As per Notification dated 15.11.2019 Total Gram SC ST OBC General Panchayats category category category category 35 08 08 01 18 (Downloaded on 11/06/2020 at 09:13:01 PM) (16 of 65) [CW-2509/2020] Gram Panchayat - Digo
Reservation Order/Lottery dated 21.12.2019 - General (Female) As per Notification dated 01.12.2019 -
Total Gram SC ST OBC General
Panchayats category category category category
38 09 09 01 19
Reservation Order/Lottery dated 03.02.2020 - Schedule Tribe (ST) Note:
1. New three Gram Panchayats added i.e. Gol (SC), Ladpura (SC) and Lakhanpura (SC)
2. With the increase of seats, roster/reservation of the entire Panchayat Samiti changed. As a result Gram Panchayat - Digo got reserved for Schedule Tribe (ST).
(11) S.B.Civil Writ Petition No.2722/2020 Kaluram Meena Vs. State of Rajasthan & Ors.
Panchayat Samiti - Lalsot, Distt. Dausa
As per Notification dated 15.11.2019
Total Gram SC ST OBC General
Panchayats category category category category
35 08 08 01 18
Gram Panchayat - Gol
Reservation Order/Lottery dated 18.12.2019 - Schedule Caste (SC) As per Notification dated 01.12.2019 -
Total Gram SC ST OBC General
Panchayats category category category category
38 09 09 01 19
Reservation Order/Lottery dated 31.01.2020 - Schedule Caste (SC) Female Note:
1. New three Gram Panchayats added i.e. Gol (SC), Ladpura (SC) and Lakhanpura (SC)
2. The Gram Panchayat - Gol has been newly constituted and the population of Schedule Caste (SC) is 20%, therefore, it came to be reserved for SC category.
(12) S.B.Civil Writ Petition No.2264/2020 Sampoorna Nand Sharma Vs. State of Rajasthan & Ors. Panchayat Samiti - Shahpura, Distt. Jaipur (Downloaded on 11/06/2020 at 09:13:01 PM) (17 of 65) [CW-2509/2020] As per Notification dated 15.11.2019 Total Gram SC ST OBC General Panchayats category category category category 36 06 02 07 21 Reserved for - General Female Gram Panchayat - Manoharpura As per Notification dated 01.12.2019 -
Total Gram SC ST OBC General
Panchayats category category category category
37 06 02 08 21
Reservation Order/Lottery dated 31.01.2020 - OBC Note:
1. New Gram Panchayat Shivsinghpura was constituted vide Notification dated 01.12.2019, which came to be reserved as SC vide order dated 31.01.2020, therefore, Reservation for other Gram Panchayats got affected."
16. The petitioners feeling aggrieved against the action of the State Government in issuing the orders dated 24.01.2020 and 27.01.2020 and the consequential orders of redraw of lottery in particular gram panchayat, have challenged the said orders and re-draw of lots and various grounds have been raised in the writ petitions, which will be dealt with by this Court in the subsequent part of the judgment.
17. The respondents have filed reply to the writ petition and have submitted that the notifications dated 24.01.2020 and 27.01.2020 and the consequential orders, issued in furtherance of the directions given by the Apex Court, cannot be challenged by the petitioners as the same are as per directions issued by the Apex Court in SLP No. 30471/2019. The respondents have averred that initially the reservation process was carried out in accordance with the notification/orders dated 15/16.11.2019, however pursuant to the directions issued by the Apex Court, elections were to be held in accordance with all delimitation notifications (Downloaded on 11/06/2020 at 09:13:01 PM) (18 of 65) [CW-2509/2020] issued by the State Government and the exercise of reservation of seats is required to be re-conducted in view of the fact that the scheme of reservation has been designed in such a manner that in case the same is not given effect to taking into consideration all the seats/constituencies of Panchayat Samiti Neemrana, the whole purpose of reservation would be a futile exercise.
18. The respondents have averred that the entire population of Panchayat Samiti Neemrana was affected by issuance of the notification dated 01.12.2019, inasmuch as the total number of Gram Panchayats in the Panchayat Samiti Neemrana was initially 33, as per the notification dated 15.11.2019, whereas pursuant to the decision of the Division Bench of this Court in the case of Jai Singh(supra), the process of reservation was carried out as per the notification dated 01.12.2019, which included 34 Gram Panchayats. The directions issued by the Apex Court necessitated re-working out of the reservation, as the reservation had to be determined after taking into consideration the one (01) additional Gram Panchayat and draw of lottery had accordingly taken place on 04.02.2020.
19. The respondents have also pleaded in the reply that the writ petition is liable to be dismissed in view of the fact that Article 243-O of the Constitution of India bars interference by courts in electoral matters. The respondents have also pleaded that the allotment of seats entails process of reservation of seats, as provided under Rule 7 of the Panchayati Raj (Election) Rules, 1994 (hereinafter shall be referred to as "the Rules of 1994"). The respondents have pleaded that Section 117 of the Act of 1994 also bars interference by this Courts in certain matters and as such in (Downloaded on 11/06/2020 at 09:13:01 PM) (19 of 65) [CW-2509/2020] view of the constitutional and statutory bar, the writ petitions deserve to be dismissed as being not maintainable.
20. Learned counsel appearing for the petitioners led by Mr.Ashwini Jaiman has submitted that the extra-ordinary jurisdiction of the High Court under Article 226 of the Constitution of India, cannot be curtailed and the writ petition would be maintainable.
21. Learned counsel appearing for the petitioners, led by Mr.Ashwini Jaiman, Advocate, have made following legal submissions:-
(a) The bare perusal of Article 243-O(a) of the Constitution of India would reveal that bar is in respect of validity of any law relating to the delimitation of the constituencies or the validity of any law relating to the allotment of seats to such constituencies made or purported to be made under Article 243-K of the Constitution of India and since the petitioners are not questioning the validity of any law, the bar contained under Article 243-O(a) of the Constitution of India, will not be attracted in the present facts of the case.
(b) The petitioners are questioning the excessive reservation made in favour of the Women vide re-draw of lots and the provisions of Sections 15 and 16 of the Act of 1994 as well as Rule 7 of the Rules of 1994, have not been questioned by the petitioners, rather true implementation of the aforesaid provisions have been sought in the writ petitions and thus, the bar contained under Article 243-O(a) of the Constitution of India, is not applicable and the writ petitions are maintainable under Article 226 of the Constitution of India.(Downloaded on 11/06/2020 at 09:13:01 PM)
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(c) The petitioners are voters and aspiring candidates to contest election in their respective Gram Panchayats and excessive reservation, vide re-draw of lots has resulted into their ouster to contest election and, therefore, there is no other remedy for the petitioners to question such arbitrary action of the State Government whereby it has acted contrary to its own Rules and Regulations.
(d) The remedy of election petition can be availed by the candidates and since petitioners are not allowed to contest, as a result of excessive reservation made in favour of Women, they cannot avail the remedy of election petition, as provided under Section 43 of the Act of 1994 as well as under Rule 80 of the Rules of 1994 and thus, the petitioners cannot be rendered remediless.
(e) The power of judicial review is the basic feature of the Indian Constitution and one of the ingredients of basic structure is the democratic nature of our republic and free and fair election forms the foundation of democracy and the Courts cannot remain mute spectator against such manifest arbitrariness of the State authorities and as such the bar contained under Article 243-O(a) of the Constitution of India, is not applicable and the writ petition under Article 226 of the Constitution of India, would be maintainable.
(f) The Article 226 of the Constitution of India by its nature and object, is wide enough to include within its sweep all the conditions like manifest arbitrariness, reasonableness, natural justice and all other concepts which constitute the basic structure of the Constitution and the High Court has power to (Downloaded on 11/06/2020 at 09:13:01 PM) (21 of 65) [CW-2509/2020] issue writ or direction for not only enforcement of fundamental rights but also for any other purpose.
Counsel argued that a citizen has a right to approach the High Court for implementation of the Rules framed by the State Government and if the State Government acts contrary to its own Rules and Regulations, then the High Court cannot become silent spectator and its power cannot be curtailed by any law.
(g) The Constitution of India being a living document and framers of the Constitution considering diversity of the Nation, has given such powers to the Courts so that no litigant can be left remediless.
(h) In order to maintain purity of election, judicial review is essential and there cannot be any ouster of extra-ordinary jurisdiction of the High Court and in particular if the High Court does not interfere, the purity of election would be at stake and the same cannot be countenanced in democratic set up of this Country.
(i) In view of the interpretation made by the Apex Court in the case of Keshavanand Bharti Vs. State of Kerala reported in AIR 1973 SC 1461, the Article 329 of the Constitution is part and parcel of the Constitution of India and forms basic structure of the Constitution of India and since provisions with respect of Article 243 have been incorporated vide 73rd Amendment to the Constitution after the decision of the Apex Court, the judicial review is a basic feature of the Constitution and as such, the bar has to be understood to be against "ordinary courts" and not against "constitutional courts".
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(22 of 65) [CW-2509/2020] (j) As per the decision of the Apex Court in the case of
Election Commission of India Vs. Ashok Kumar reported in (2000) 8 SCC 216 rendered by the Larger Bench (three Judges), the power of High Court cannot be denuded in the election matters.
22. Per contra, Ms.Sheetal Mirdha, Additional Advocate General has raised following submissions/objections:-
(a) There is a complete bar under Article 243-O of the Constitution of India, which has been inserted in Chapter-IX of the Constitution by 73rd Amendment and the same is analogous to the Article 329 of the Constitution of India, which bars the Courts from entertaining writ petitions. The delimitation exercise, conducted pursuant to Section 101 of the Act of 1994 and initiated vide notification dated 12.06.2019, which culminated into the final notifications dated 15/16.11.2019, 01/02.12.2019 and 12.12.2019, ought not be interfered with by this Court.
(b) The exercise of delimitation and subsequent allotment of seats to such constituencies, which have been delimited, is an exclusive function of the State Government which does not infringe or cause legal injury to any individual right of any citizen and when no legal injury has been contemplated, no remedy has been provided for challenging the action of the State Government. The delimitation does not interfere with individual rights of the citizens and any proceedings undertaken by the State Government in furtherance to delimitation, is not amenable to judicial review under Article 226 of the Constitution of India.(Downloaded on 11/06/2020 at 09:13:01 PM)
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(c) The Apex Court while interpreting the scope of judicial review under Article 243-O of the Constitution of India in the case of State of UP & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. reported in 1995 (Supp.)(2) SCC 305 has laid down the law that neither the delimitation of Panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies, could be challenged nor the Court could entertain such challenge except on the ground that before the delimitation, no objections were invited.
(d) The Article 329 of the Constitution of India specifically bars interference by Courts in electoral matters and the Legislature was fully aware of the fact that interference in election matters would cause direct injury to the democratic institutions in the country and as such interference in electoral matters by the Courts, was constitutionally injuncted.
(e) The Section 117 of the Act of 1994 is reiteration of Article 243-O of the Constitution of India prohibiting interference of the Courts in certain matters and in particular questioning the validity of any law relating to delimitation of constituencies or wards and allotment of seats such constituencies made under the Act.
(f) The judgment passed at the Principal Seat of this Court at Jodhpur in the case of Mushe Khan & Anr. Vs. State of Rajasthan & Ors. [D.B.Civil Writ Petition No.8157/2014] & other connected cases dated 19.12.2014 was put to challenge before the Apex Court by way of filing SLP and the Apex Court on 26.02.2020 in Asu Lal & Ors. Vs. The State of Rajasthan & Ors. [Special Leave to Appeal (C) (Downloaded on 11/06/2020 at 09:13:01 PM) (24 of 65) [CW-2509/2020] No.319/2015] permitted the petitioner to withdraw the petition and question of law involved therein was left open.
Counsel submitted that leaving the question of law open by the Apex Court, does not mean that the High Court could re-visit the issue and it has to be interpreted by the Apex Court alone. Counsel further submitted that the law decided by the Division Bench of this Court in the case of Bhupendra Pratap Singh Rathore Vs. State of Rajasthan [D.B.Civil Writ Petition No.12960/2014] and Jai Singh Vs. State of Rajasthan & Ors. [D.B.Civil Writ Petition No.17993/2019] continues to be a good law and until the legal issue is decided by the Apex Court, the judicial proprietary demands that the issues settled by the Division Bench, are to be followed.
23. Learned counsel for the petitioners have relied upon the following judgments :-
1. Election Commission of India Vs. Ashok Kumar reported in (2000) 8 SCC 216
2. Smt.Bharati Reddy Vs. The State of Karnataka & Ors. reported in 2017(9) Scale 156
3. K.Venkatachalam Vs. A. Swamickan reported in (1999) 4 SCC 526
4. Dravida Munnetra Kazhagam (DMK) Vs. Secretary Governors Secretariat reported in (2019) Supreme (SC) 1326
5. Smt.Sk.Khasim Bee Vs. The State Election Commissioner & Ors. reported in 1996 AIR (AP) 324
6. Pradhuman Verma Vs. State of MP & Ors. reported in AIR 2017 MP 71
7. Anil Trivedi & Anr. Vs. State of MP & Ors. reported in 2015(2) MPLJ 154
8. Suresh Jaiswal Vs. State of UP & Another reported in 2015 (9) ADJ 1
9. L. Shivanna Vs. State of Karnataka reported in ILR 1988 Karnataka 2121
10. S.Fakruddin & Ors. Vs. The Govt. of AP & Ors. reported in AIR 1996 (AP) 37 (Downloaded on 11/06/2020 at 09:13:01 PM) (25 of 65) [CW-2509/2020]
11. Sampat Singh Vs. The Election Commission, Rajasthan through Commissioner, Jaipur & Ors. [S.B.Civil Writ Petition Nos.851-852, 874, 883 & 994/2010.] decided on 30.09.2010 by the coordinate Bench at the Principal Seat at Jodhpur.
24. Learned Additional Advocate General Ms.Sheetal Mirdha, appearing for the State, has relied upon the following judgments:-
1. Jai Singh Vs. The State of Rajasthan & Ors. [D.B.Civil Writ Petition No.17993/2019] decided on 13.12.2019 by Division Bench at Principal Seat at Jodhpur.
2. Virender Singh Vs. State of Rajasthan & Ors. [S.B.Civil Writ Petition No.1693/2020] decided on 26.02.2020 by coordinate Bench at Principal Seat at Jodhpur.
3. Bhupendra Pratap Singh Rathore Vs. State of Rajasthan & Ors. [D.B.Civil Writ Petition No.12960/2014] decided on 18.12.2014 by Division Bench of this Court.
4. State of UP & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. reported in 1995 Supp (2) SCC 305.
5. Ravi Yashwant Bhoir Vs. District Collector, Raigad & Ors. reported in (2012) 4 SCC 407.
6. Subhash Chand Saini V s. State of Rajasthan & Ors. [S.B.Civil Writ Petition No.14532/2014] decided on 05.01.2015 by coordinate Bench of this Court.
25. This Court deems it appropriate to quote the relevant Articles of the Constitution of India and the provisions of the Rajasthan Panchayati Raj Act, 1994 and the Rajasthan Panchayati Raj (Election) Rules, 1994, as under:-
"Constitution of India Article-243-O. Bar to interference by courts in electoral matters.-Notwithstanding anything in this Constitution,--
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any court;
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by Legislature of a State.(Downloaded on 11/06/2020 at 09:13:01 PM)
(26 of 65) [CW-2509/2020] Article 329. Bar to interference by courts in electoral matters-Notwithstanding anything in this Constitution-
(a)the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court;
(b)No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
Rajasthan Panchayati Raj Act, 1994 Sec.43. Determination of dispute as to elections. - (1) An election under this Act or the rules made thereunder may be called in question by any candidate at such election by presenting in the prescribed manner to the District Judge having jurisdiction a petition in this behalf on the prescribed ground and within the prescribed period ;
Provided that an election petition presented as aforesaid may, for the reasons to be recorded in writing, be transferred by the District Judge for hearing and disposal to a Civil Judge or Additional Civil Judge (Senior Division) subordinate to him.
(2) A petition presented under Sub-Section (1) shall be heard and disposed of in the prescribed manner and the decision of the Judge thereon shall be final. Sec.117. Bar to interference by Courts in certain matters. - Notwithstanding anything contained in this Act-
(a) the validity of any law relating to the delimitation of constituencies or wards or the allotment of seats to such constituencies or wards made or purporting to be made under this Act, shall not be called in question in any Court, and
(b) no election to any Panchayati Raj Institution shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under this Act.
Rajasthan Panchayati Raj (Election) Rules, 1994 Rule 7.Procedure for reservation.- (1) The Officer authorised by the Government shall for the purpose of reservation of seats for persons belonging to Scheduled Castes under Section 15 of the Act, first identify the wards or constituencies which consist of population of the Scheduled Castes and such wards or constituencies shall be serially arranged in the descending order of percentage of population of Scheduled Castes excluding the wards and constituencies (Downloaded on 11/06/2020 at 09:13:01 PM) (27 of 65) [CW-2509/2020] where such percentage is less than five, and shall be assigned serial numbers as SC 1, SC 2 and so on. (2) The serial number so assigned shall be known as special serial numbers for Scheduled Castes.
(3) The Officer authorised by the Government shall first allocate the number of seats reserved for SCs (including one third of such seats reserved for women belonging to the Scheduled Castes) serially to the wards bearing special numbers for Scheduled Castes.
(4) The Officer authorised by the Government shall for the purpose of reservation of seats for persons belonging to Scheduled Tribes under Section 15 of the Act, after the seats having been determined and allocated under the aforesaid section for SCs, proceed to identify the wards and constituencies which consist of population of Scheduled Tribes and such wards and constituencies shall be serially arranged in the descending order of percentage of population of Scheduled Tribes excluding the wards and constituencies where such percentage is less than five, and shall be assigned serial number of ST 1, ST 2 and so on. (5) The serial number so assigned shall be known as special serial numbers for Scheduled Tribes.
(6) The Officer authorised by the Government shall, after having allocated the seats reserved for the Scheduled Castes under Sub-rule (3), allocate the seats reserved for Scheduled Tribes (including one third of such seats reserved for women belonging to Scheduled Tribes) serially to the wards bearing special serial numbers for Scheduled Tribes. (7) The Officer authorised by the Government shall for the purpose of reservation of seats for persons belonging to Backward Classes under Section 15 of the Act, after having determined and allocated seats reserved for the persons belonging to the Scheduled Castes and the Scheduled Tribes (including one third of the seats reserved for women belonging to such Castes and Tribes), proceed further to allocate such number of seats in the Panchayati Raj Institutions as are required to be reserved for persons belonging to Backward Classes (including one third of such seats reserved for women belonging to Backward Classes) out of remaining seats by lot.
(8) (a) The number of seats reserved for women belonging to the Scheduled Castes or the Scheduled Tribes or, as the case may be, the Backward Classes respectively shall be derived by dividing the seats to be reserved for the SCs or STs or as the case may be BCs by three. . (b) If only one seat each is reserved for SC, ST or BC in any Panchayati Raj Institution, one seat out of the (Downloaded on 11/06/2020 at 09:13:01 PM) (28 of 65) [CW-2509/2020] three as determined by draw of lots shall be reserved for women.
(9) The remaining number of seats reserved for women shall be determined by dividing the total number of seats by three and number so determined shall be reduced by the aggregate of the number of the seats derived for women belonging to the SCs, STs and BCs under Sub-rule (8). (10) The seats so reserved for women under Rule 6 shall be allocated by lot.
(11) Where ever seats are to be reserved by draw of lots, the Officer authorised by the Government shall fix place, date and time for the purpose of drawing lots and inform the members of the Legislative Assembly of the constituencies or part of the constituency falling in the district. The lots shall be drawn in accordance with the procedures laid down by the Government in the presence of such members of Legislative Assembly who may choose to be present at the appointed time.
(12) In every succeeding general election of the Panchayati Raj Institutions, the list of wards or constituencies bearing special serial number for Scheduled Castes or, as the case may be, Scheduled Tribes shall --
(i) continue to be operated serially from special serial number following the special serial number where the allocation of seats reserved for the SCs or, as the case may be, the STs has ended in the preceding election.
(ii) be operated till it is exhausted, and
(iii) be re-operated from the beginning after it is exhausted.
(13) Wards and constituencies reserved for Backward Classes and Women by draw of lots in the first general election shall be excluded while drawing lots for such reservation in succeeding elections till the cycle is completed.
Rule 80.Manner of challenging an election under the Act.- An election under the Act or under the Rules may be called in question by any candidate at such election by presenting a petition to the District Judge having jurisdiction within thirty days from the date on which the result of such election is declared, on any one or more of the following grounds --
(a) that on the date of election a returned candidate was not qualified or was disqualified for such election; or (Downloaded on 11/06/2020 at 09:13:01 PM) (29 of 65) [CW-2509/2020]
(b) that any corrupt practice was committed by a candidate or by any other person with the consent or connivance of the candidate; or
(c) that any nomination was improperly rejected; or
(d) that the result of the election in so far as it concerns the returned candidate was materially affected
(i) by the improper acceptance of any nomination; or
(ii) by any corrupt practice committed in the interest of the candidate by a person other than that candidate or by a person acting with the consent or connivance of such candidate; or
(iii) by improper reception, refusal or rejection of any vote or the reception of any vote which was void; or
(iv) by any non-compliance with the provisions of the Act or of these rules; or
(e) that in fact the petitioner or some other candidate received a majority of the valid votes; or
(f) that but for votes obtained by the returned candidate by corrupt practices, the petitioner or some other candidate would have obtained a majority of the valid votes."
MAINTAINABILITY OF WRIT PETITIONS:
26. This Court, at the first instance, is required to decide the preliminary objection raised by the respondents about maintainability of the writ petitions under Article 226 of the Constitution of India.
27. This Court finds that the petitioners, in the present writ petitions, have pleaded that validity of any law is not being questioned by them and as such the bar contained under Article 243-O(a) of the Constitution of India, will not be attracted in the present facts of the case.
28. This Court finds that counsel for the petitioners have also (Downloaded on 11/06/2020 at 09:13:01 PM) (30 of 65) [CW-2509/2020] argued that they are seeking true implementation of the provisions, as contained under Sections 15 and 16 of the Act of 1994 as well as Rule 7 of the Rules of 1994 and as such the bar contained under Article 243-O(a) of the Constitution of India, cannot be made applicable and the writ petitions are maintainable.
29. This Court further finds that counsel for the petitioners have argued that power of judicial review is the basic feature of the Indian Constitution and the High Court cannot remain a mere spectator against arbitrariness of the State authorities and the writ jurisdiction of the High Court under Article 226 of the Constitution of India, cannot be taken away.
30. This Court finds that the provisions contained under Article 243 of the Constitution of India have been incorporated vide 73 rd Amendment to the Constitution and after the decision of the Apex Court in the case of Keshavanand Bharti (supra), the power of judicial review has been held to be a basic feature of the Constitution and the bar contained under Article 243 of the Constitution of India has to be understood against "ordinary Courts" and not against "constitutional Courts".
31. This Court finds that the Apex Court considered the power of judicial review, as basic structure of the Constitution of India and further the jurisdiction conferred on the High Court by Article 226 of the Constitution of India vis-à-vis the bar created by the Article 329, was the subject matter of examination before the Apex Court in the case of Election Commission of India Vs. Ashok Kumar reported in (2000) 8 SCC 216. The relevant extract of the judgment is reproduced hereunder:-
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(31 of 65) [CW-2509/2020] "17. That the power of judicial review is a basic structure of Constitution - is a concept which is no longer in issue.
18. Is there any conflict between the jurisdiction conferred on the High Courts by Article 226 of the Constitution and the embargoes created by Article 329 and if so how would they co-exist came up for the consideration of a Constitution Bench of this Court in N.P.Ponnuswami Vs. The Returning Officer, Namakkal Constituency. The law enunciated in Ponnuswami was extensively dealt with, also amplified, by another Constitution Bench in Mohinder Singh Gill Vs. Chief Election Commissioner. The plenary power of Article 329 has been stated by the Constitution Bench to be founded on two principles : (1) The peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion; (2) The provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form, the right and remedy being creatures of statutes and controlled by the Constitution. On these principles the conclusions arrived at in Ponnuswami case were so stated in Mohinder Singh Gills case:-
"(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.
(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are committed while it is in progress and they belong to the category or class which under the law by which elections are governed, would have the effect of vitiating the "election" and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress."
19. However, the Constitution Bench in Mohinder Singh Gill case could not resist commenting on Ponnuswami case by observing (vide para 25) that the non-obstante clause in Article 329 pushes out Article 226 where the dispute takes the form of calling in question an election, except in special situations pointed out at, but left unexplored in Ponnuswami case.
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20. Vide para 29 in Mohinder Singh Gills case, the Constitution Bench noticed two types of decisions and two types of challenges : The first relating to proceedings which interfere with the progress of the election and the second which accelerate the completion of the election and acts in furtherance of an election. A reading of Mohinder Singh Gills case points out that there may be a few controversies which may not attract the wrath of Article 329(b). To wit: (i) power vested in a functionary like the Election Commission is a trust and in view of the same having been vested in high functionary can be expected to be discharged reasonably, with objectivity and independence and in accordance with law. The possibility however cannot be ruled out where the repository of power may act in breach of law or arbitrarily or malafide. (ii) A dispute raised may not amount to calling in question an election if it sub-serves the progress of the election and facilitates the completion of the election. The Election Commission may pass an order which far from accomplishing and completing the process of election may thwart the course of the election and such a step may be wholly unwarranted by the Constitution and wholly unsustainable under the law. In Mohinder Singh Gill case, this Court gives an example (vide para 34). Say after the President notifies the nation on the holding of elections under Section 15 and the Commissioner publishes the calendar for the poll under Section 30 if the latter orders returning officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents, which order would have the effect of preventing an election and not promoting it, the Court's intervention in such a case will facilitate the flow and not stop the election stream.
21. A third category is not far to visualise. Under Section 81 of the Representation of the People Act, 1951 an election petition cannot be filed before the date of election, i.e., the date on which the returned candidate is declared elected. During the process of election something may have happened which would provide a good ground for the election being set aside. Purity of election process has to be preserved. One of the means for achieving this end is to deprive a returned candidate of the success secured by him by resorting to means and methods falling foul of the law of elections. But by the time the election petition may be filed and judicial assistance, secured material evidence may be lost. Before the result of the election is declared assistance of Court may be urgently and immediately needed to preserve the evidence without in any manner intermeddling with or thwarting the progress of election. So also there may be cases where the relief sought for may not interfere or intermeddle with the process of the election but the jurisdiction of the Court is sought to be invoked for correcting the process of election taking care of such aberrations as can be taken care of only at that moment (Downloaded on 11/06/2020 at 09:13:01 PM) (33 of 65) [CW-2509/2020] failing which the flowing stream of election process may either stop or break its bounds and spill over. The relief sought for is to let the election process proceed in conformity with law and the facts and circumstances be such that the wrong done shall not be undone after the result of the election has been announced subject to overriding consideration that the Court's intervention shall not interrupt, delay or postpone the ongoing election proceedings. The facts of the case at hand provide one such illustration with which we shall deal with a little later. We proceed to refer a few other decided cases of this court cited at the Bar.
22. to 27 XX XX XX
28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of over- enthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.
29. Section 100 of the Representation of the People Act, 1951 needs to be read with Article 329 (b), the former being a product of the latter the sweep of Section 100 spelling out the legislative intent would assist us in determining the span of Article 329 (b) though the fact remains that any legislative enactment cannot curtail or override the operation of a provision contained in the Constitution. Section 100 is the only provision within the scope of which an attack on the validity of the election must fall so as to be a ground available for avoiding an election and depriving the successful candidate of his victory at the polls. The Constitution Bench in Mohinder Singh Gill's case asks us to read Section 100 widely as covering the whole basket of grievances of the candidates. Sub-clause (iv) of clause (d) of sub-section (1) of Section 100 is a residual catch-all clause. Whenever there has been non-compliance with the provisions of the Constitution or of the Representation of the People Act, 1951 or of any rules or orders made thereunder if not specifically covered by any other preceding clause or sub-clause of the Section it shall be covered by sub-clause
(iv). The result of the election insofar as it concerns a returned candidate shall be set aside for any such non- compliance as the abovesaid subject to such non-compliance also satisfying the requirement of the result of the election having been shown to have been materially affected insofar as a returned candidate is concerned. The conclusions which inevitably follow are: in the field of election jurisprudence, (Downloaded on 11/06/2020 at 09:13:01 PM) (34 of 65) [CW-2509/2020] ignore such things as do not materially affect the result of the election unless the requirement of satisfying the test of material effect has been dispensed with by the law; even if the law has been breached and such breach satisfies the test of material effect on the result of the election of the returned candidate yet postpone the adjudication of such dispute till the election proceedings are over so as to achieve, in larger public interest, the goal of constituting a democratic body without interruption or delay on account of any controversy confined to an individual or group of individuals or single constituency having arisen and demanding judicial determination.
30. To what extent Article 329 (b) has an overriding effect on Article 226 of the Constitution? The two Constitution Benches have held that Representation of the People Act, 1951 provides for only one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. The non-obstante clause with which Article 329 opens, pushes out Article 226 where the dispute takes the form of calling in question an election (see para 25 of Mohinder Singh Gill's case. The provisions of the Constitution and the Act read together do not totally exclude the right of a citizen to approach the Court so as to have the wrong done remedied by invoking the judicial forum; nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities, and knock the doors of the courts when the election proceedings in question are over. Two-pronged attack on anything done during the election proceedings is to be avoided-one during the course of the proceedings and the other at its termination, for such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy.
31. The founding fathers of the Constitution have consciously employed use of the words no election shall be called in question in the body of Section 329 (b) and these words provide the determinative test for attracting applicability of Article 329 (b). If the petition presented to the Court calls in question an election the bar of Article 329
(b) is attracted. Else it is not.
32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:-
1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing (Downloaded on 11/06/2020 at 09:13:01 PM) (35 of 65) [CW-2509/2020] or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
2) Any decision sought and rendered will not amount to calling in question an election if it sub-serves the progress of the election and facilitates the completion of the election.
Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well- settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."
32. The Apex Court considered the scope of jurisdiction of the High Court to entertain the writ petition under Article 226 of the Constitution of India and bar contained in clause (b) of the Article 243-O of the Constitution of India in the case of Smt.Bharati Reddy Vs. The State of Karnataka & Ors. reported in 2017(9) Scale
156. The Apex Court held the power of judicial review under (Downloaded on 11/06/2020 at 09:13:01 PM) (36 of 65) [CW-2509/2020] Articles 226/227 of the Constitution of India is an essential feature of the Constitution which can neither be tinkered with nor eroded and even the Constitution cannot be amended to erode the basic structure of the Constitution. The relevant extract of the judgment is reproduced hereunder:-
"11. Learned senior counsel for the appellant contended that in spite of Article 226 of the Constitution, the High Court had no jurisdiction to entertain the writ petition in view of the bar contained in clause (b) of Article 243-O of the Constitution. It was argued that the aggrieved person will have to avail himself the remedy provided in Rule 7 and cannot approach the High Court in the first instance under Article 226 of the Constitution of India.
12. We do not find any merit in this contention. We are of the view that a voter in a particular panchayat cannot be rendered remediless if he is aggrieved by the election of the Adhyaksha of the Panchayat. In His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. (1973) 4 SCC 225, a thirteen Judge Bench of this Court held that Article 368 of the Constitution does not enable the Parliament to alter the basic structure or framework of the Constitution. The basic structure of the Constitution could not be altered by any constitutional amendment and it was held in unambiguous terms that one of the basic features is the existence of constitutional system in judicial review. This view was followed by a Constitution Bench in Minerva Mills Ltd. and Ors. v. Union of India and Ors. (1980) 3 SCC 625. In L. Chandra Kumar v. Union of India and Ors. (1997) 3 SCC 261, a seven Judge Bench of this Court has held that jurisdiction conferred upon the High Courts under Articles 226/227 of the Constitution and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and tribunals may perform a supplementary role in discharging the powers conferred by Articles 226/227 and Article 32 of the Constitution of India. It has been held as under:
"We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded."(Downloaded on 11/06/2020 at 09:13:01 PM)
(37 of 65) [CW-2509/2020] In I.R. Coelho (dead) by Lrs. v. State of Tamil Nadu (2007) 2 SCC 1, a Bench of nine Judges has again held that power of judicial review is the part of the basic structure of the Constitution. The power to amend cannot be equated with the power to frame the Constitution.
13. It is thus clear that power of judicial review under Articles 226/227 of the Constitution is an essential feature of the Constitution which can neither be tinkered with nor eroded. Even the Constitution cannot be amended to erode the basic structure of the Constitution. Therefore, it cannot be said that the writ petition filed by respondent Nos. 6 to 9 under Article 226 of the Constitution is not maintainable. However, it is left to the discretion of the court exercising the power under Articles 226/227 to entertain the writ petition.
14. In Charan Lal Sahu (supra) relied upon by the learned senior counsel, the question for consideration was maintainability of an election petition presented by a candidate challenging the election to the Office of the President of India who has not been duly nominated under Section 14A of the Presidential and Vice-Presidential Elections Act, 1952. This decision has no application to the facts of the present case.
15. As noticed above, though respondent Nos. 6 to 9 are the voters are not the members of the Zilla Panchayat. They are aggrieved by the election of the appellant to the office of the Adhyaksha. They cannot challenge the election of the appellant to the office of Adhyaksha by filing an election petition as they are not the members of the Zilla Panchayat in question. In our view, a voter of the Zilla Panchayat who is not a member cannot be denied an opportunity to challenge the election to the office of Adhyaksha under Articles 226/227 of the Constitution. Therefore, we hold that the writ petition filed by respondent Nos. 6 to 9 before the High Court is maintainable."
33. The Apex Court again considered the scope of writ jurisdiction of High Court under Article 226 of the Constitution of India in the case of K.Venkatachalam Vs. A. Swamickan reported in (1999) 4 SCC 526 and found that if there is any Act which is against any provision of law or violative of constitutional provisions or no other recourse can be taken for appropriate relief, the bar contained under Article 329(b) of the Constitution of India will not take away the jurisdiction of the High Court. The relevant (Downloaded on 11/06/2020 at 09:13:01 PM) (38 of 65) [CW-2509/2020] extract of the judgment is reproduced hereunder:-
"25. In the present case the appellant was not an elector in the electoral roll of Lalgudi Assembly Constituency. He, therefore, could not be elected as a member from that constituency. How could a person who is not an elector, from that constituency represent the constituency? He lacked the basic qualification under Clause (c) of Article 173 of the Constitution read with Section 5 of the Act which mandated that a person to be elected from an Assembly constituency has to be elector of that constituency. The appellant in the present case is certainly disqualified for being a Member of the Legislative Assembly of Tamil Nadu. His election, however, was not challenged by filing an election petition under Section 81 of the Act, Appellant knows he is disqualified. Yet he sits and votes as a Member of the Legislative Assembly. He is liable to penalty of five hundred rupees in respect of each day on which he so sits or votes and that penalty is recoverable as a debt due to the State. There has not been any adjudication under the Act and there is no other provision of the Constitution as to how penalty so incurred by the appellant has to be recovered as a debt due to the State. Appellant is liable to penalty nevertheless as he knows he is not qualified for membership of the Legislative Assembly and yet he acts contrary to law.
26. The question that arises for consideration is if in such circumstances the High Court cannot exercise its jurisdiction under Article 226 of the constitution declaring that the appellant is not qualified to be member of the Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. From the finding recorded by the High Court it is clear that the appellant in his nomination form impersonated a person known as 'Venkatachalam s/o Pethu', taking advantage of the fact that such a person bears his first name. Appellant would be even criminally liable as he filed his nomination on an affidavit impersonating himself If in such circumstances he is allowed to continue to sit and vote in the Assembly his action would be fraud on the constitution.
27. In view of the judgment of this Court in the case of Election Commission of India v. Saka Venkata Rao, AIR (1953) SC 210 it may be that action under Article 192 could not be taken as the disqualification which the appellant incurred was prior to his election. Various decisions of this Court, which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above do not appear to apply to the case of the appellant now before us. Article 226 of the Constitution is couched in the widest possible terms and unless there is clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of (Downloaded on 11/06/2020 at 09:13:01 PM) (39 of 65) [CW-2509/2020] constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one the bar of Article 329(b) will not come into play when the case falls under Articles 191 and 193 and whole of the election process is over. Consider the case where the person elected is not a citizen of India.
Would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution?"
34. The Apex Court in the case of Dravida Munnetra Kazhagam (DMK) Vs. Secretary Governors Secretariat reported in (2019) Supreme (SC) 1326 considered the law laid down by the Apex Court in the case of Election Commission of India Vs. Ashok Kumar & Ors. (supra) and found that constitutional embargo contained in Articles 243−O and 243−ZG of the Constitution of India will not be applicable for High Court to exercise its power under Article 226 of the Constitution of India if pre−requisites of expeditious completion of a fair election is involved. The relevant extract of the judgment is reproduced hereunder:-
"12. It is thus clear that the constitutional object of Part IX cannot be effectively achieved unless the delimitation exercise for constitution of local bodies at all levels is properly undertaken. Such exercise in the State of Tamil Nadu must keep in view the criteria for delimitation of wards prescribed under the Tamil Nadu Local Bodies Delimitation Regulations, 2017 (formulated under the Tamil Nadu Delimitation Commission Act, 2017), which criteria must itself not be contrary to Article 243−C read with Article 243−B(1) of the Constitution.
13. Noticing how at the completion of the delimitation process there were only 31 revenue districts, but despite a subsequent increase in number of districts to 39, no fresh delimitation exercise has been undertaken, it is clear that the State Government cannot fulfill the aforestated Constitutional mandate. There is no identified data elucidating population proportions and hence requisite reservation for Scheduled Castes and Scheduled Tribes cannot be provided for, both in re village panchayat wards or Chairman/Vice−Chairman of District bodies. We hence have no doubt that the election process as notified by the State Election Commission on 2nd December, 2019, in respect of the newly constituted nine districts cannot be held unless (Downloaded on 11/06/2020 at 09:13:01 PM) (40 of 65) [CW-2509/2020] fresh delimitation exercise in respect thereto is first completed. The State Government cannot justify holding local body elections of these nine districts by relying upon this Courts order dated 18th November, 2019 as the said order itself mandates notification of elections only after completing "all legal formalities".
14. The contention of the respondents that the present proceedings amount to calling in question an election and hence not being maintainable in view of the express constitutional embargos of Articles 243−O and 243−ZG does not impress us for the present proceedings are only to further the expeditious completion of pre−requisites of a fair election. Hence, the following ratio of a coordinate Bench in Election Commission of India v. Ashok Kumar and Others [2000 (8) SCC 216] squarely applies to the present case:
"(2) Any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well−settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body been shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court."
35. Counsel for the petitioners have placed reliance on a judgment rendered by the Division Bench of Madhya Pradesh High Court in the case of Pradhuman Verma Vs. State of MP & Ors. reported in AIR 2017 (MP) 71 wherein the Madhya Pradesh High Court has considered the power of judicial review for achieving the ultimate goal of rendering justice and preventing perpetration of (Downloaded on 11/06/2020 at 09:13:01 PM) (41 of 65) [CW-2509/2020] injustice. The Division Bench of Madhya Pradesh High Court after considering the judgment rendered by the Apex Court in the case of Election Commission of India Vs. Ashok Kumar (supra) held that Articles 329/243-O(b) of the Constitution of India do not close all doors on a litigant seeking recourse to judicial review under Article 226 of the Constitution of India to assail an election. The Division Bench has also held that democratic nature of our republic is undoubtedly one of the ingredients of basic structure and elections, conducted in a free and fair manner, form the foundation of democracy. The relevant extract of the judgment is reproduced as under:-
"7. FINDINGS:-
The inherent and plenary powers exercised by the High Court under Article 226 are wide enough to accept exclusion of jurisdiction on only two counts. The first being the appellate and discretionary jurisdiction of the Supreme Court and the second being the self imposed restrictions. This power of judicial review is for achieving the ultimate goal of rendering justice and preventing perpetration of injustice and therefore has been consciously given the widest possible amplitude, scope, ambit and sweep under Article 226 of the Constitution of India. This has been succinctly described by the Apex Court in the case of (M.V. Elisabeth and Ors Vs. Harwan Investment and Trading Pvt. Ltd. And Anr.) 1993 Supp (2) SCC 433. To further emphasize the nature of this power the following statement of law from Halsbury's Laws of England, 4th Edn. Vol. 10, para 713 deserves to be quoted as under :-
"Prima facie, no matter deemed to be beyond jurisdiction of superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court."
7.1 The power of judicial review under Article 226 is concomitant of the basic structure of Constitution. This court is supported in its view by various decisions of the Apex Court including the case of Election Commission of India Thr. Secretary Vs. Ashok Kumar and Ors. 2000 (8) SCC 216. 7.2 Thus, there is no quarrel as to the legal position that unless expressly excluded the plenary power of judicial (Downloaded on 11/06/2020 at 09:13:01 PM) (42 of 65) [CW-2509/2020] review under Article 226 is all pervasive. However, in the present case the question is not about the nature of the power of judicial review of the High Court but about the extent to which the same can be applied to interfere in election matters in the face of bar contained in Article 243(O) of the Constitution of India and the statutory remedy of election petition.
7.3 This issue is no more res integra in view of the decision of Apex Court in the case of Ashok Kumar (supra) which has aptly laid down certain principles and precautions to be exercised while invoking the power of judicial review in election matters. The said decision in the case of Ashok Kumar (supra) has considered all the earlier decisions on the point including the case of N.P. Ponnuswami (supra) Constitutional Bench decision in the case of (Mohindra Singh Gill Vs. Chief Election Commissioner) AIR 1978 SC 85, (Election Commission of India Vs. State of Haryana) AIR 1984 SC 1406; (Lakshmi Charam Sen Vs.A.K.M. Hassan Uzzaman) AIR 1985 SC 1233; (Digvijay Mote Vs. Union of India) (1993) 4 SCC 175; (Anurag Narain Singh Vs. State of U.P.) (1996) 6 SCC 303; & (S.Subrahmanyam Vs. K. Ramanjaneyullu) (1998) 8 SCC 703.
8. XX XX XX
9. For convenience and ready reference, this Court in terms of the law laid down by the Apex Court delineates below the limited grounds available to High Court under Article 226 to exercise the power of judicial review to interfere in election matters, as follows :-
(i) Judicial review is permissible where the same does not retard, interrupt, protract or stall the election proceedings.
(ii) The power of judicial review can be exercised to correct, smoothen, remove obstacles to preserve the vital piece of evidence which may be destroyed due to elapse of time and to further the process of election.
(iii) The power of judicial review can be exercised when the process of election is so vitiated that it becomes abhorrent to the fundamentals of democracy and is a farce which if allowed to continue and allowed to be challenged by the time consuming process of election petition would shake the confidence of people in democracy.
10 to 12.3 XX XX XX 12.4 In the earlier part of this judgment this Court found with the aid of Ashok Kumar's case of Apex Court, that Art.329/Art.243-O(b) does not close all doors on a litigant seeking recourse to judicial review under Art. 226 to assail an election.
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(43 of 65) [CW-2509/2020] 12.5 Art. 226, by its very nature and the object it seeks to achieve is wide enough to include within its sweep all contingencies abhorrent to law, good conscience, fair play, reasonableness, natural justice, basic human rights and to all those concepts which constitute the basic structure in our Constitution.
12.6 The democratic nature of our republic is undoubtedly one of the ingredients of basic structure. Whereas elections which are conducted in a free and fair manner form the foundation of democracy.
12.7 Any election process which is vitiated by violence and riot cannot be termed as free and fair. Such vitiated process of election strikes at the very root of democracy by allowing occupation of elected offices by persons/candidates who assume power by force rather than mandate of people thereby endangering democracy.
12.8 The question that now arises is whether in the attending facts herein where open violence and riot was complained of by the Presiding Officer, should the writ court have turned a Nelson's eye toward the obvious by closing the doors of justice under Article 226 and relegated the petitioner to avail remedy of election petition, thereby allowing an unlawfully elected appellant to wield power sans peoples mandate.
12.9 & 12.10 XX XX XX 12.11 Could the writ Court have stood as a silent spectator to the obvious illegality and taken the convenient and safe course of dismissing the petition by relegating the petitioner to avail remedy of election petition. When an illegality does not merely pertain to infringement of personal rights but strikes at the very root of democratic polity, the writ Court under Article 226 is obliged to rise to the occasion to prevent perpetration of illegality and nefarious forces to prevail, instead of leaving the hapless litigant to tread the long drawn path of filing and prosecuting an election petition which may often consume years to be decided. In the meantime the apparently unlawfully elected office bearer continues to pollute the pristine stream of democracy enjoying all the privileges of the office with no or negligible mandate of people (voters).
12.12 The answer to all the aforesaid questions lies in Article 226 which uses the expression ".......and for any other purpose." This expression reveals the plenary nature of power. The Constitution makers consciously used this expression so as to prevent any illegality to escape the scrutiny of the High Court notwithstanding any constitutional [ Art. 243-O(b)] or statutory (election petition) bar from coming in way of exercise of power of judicial review. However the High Court ought to be circumspect while (Downloaded on 11/06/2020 at 09:13:01 PM) (44 of 65) [CW-2509/2020] exercising this power when statutory remedy is available. This does not mean that the High Court should close the doors of justice to the litigant. The High Court is only required to be cautious and careful while considering the issue raised and not balk away. If the circumstances disclose apparent illegality to have polluted the election process turning it to be an eyewash it would be prudent to exercise the power of judicial review in larger public interest by ignoring the unavailed statutory remedy of election petition. 12.13 This kind of an approach in larger public interest while dealing with elections, is necessary in the fast degrading moral standards where contesting elections at any level of governance is being treated by more and more as a business venture rather than selfless public service. To catch up with the changing times the exceptions to the power of judicial review need to be proportionately liberalized so that unscrupulous elements do not take shelter behind and thrive due to the meandering and time consuming judicial process. 12.14 Thus relegating the appellant to the remedy of election petition would not have been justified in the given facts and circumstances. Moreso, dismissal of the petition and asking the petitioner to avail the remedy of filing of election petition would have led to a scenario where an election infested with violence, rioting and hooliganism would have prevailed thereby eroding the very foundation of the democratic setup recognized by the Constitution. 12.15 Every office filled by election is required to be preceded by democratic process of free and fair election. If the election process itself is polluted by violence, rioting and hooliganism then the election is a mere farce. The concept of democratic republic is recognized by the Constitution as part of basic structure which is required to be zealously protected and preserved to ensure prevalence of rule of law. Any nefarious attempt making inroads into the pristine nature of democratic republic deserves to be nipped in the bud for which the most suitable and efficacious remedy is the power of judicial review. As such, this court unhesitatingly holds that the learned Single Judge has rightly invoked its writ jurisdiction to prevent democracy from turning into mobocracy."
36. The Madhya Pradesh High Court again in the case of Anil Trivedi & Anr. Vs. State of MP & Ors. reported in 2015(2) MPLJ 154 considered the scope of Article 243-ZG of the Constitution of India and power of High Court to entertain the writ petition. The Madhya Pradesh High Court held that the bar contained in Article 243-ZG of the Constitution of India can be (Downloaded on 11/06/2020 at 09:13:01 PM) (45 of 65) [CW-2509/2020] against interference in electoral matters but if it relates to the validity of a notification including certain villages within the municipal limits, the bar contained in Article 243-ZG of the Constitution of India will not be applicable and as per the law laid down by the Apex Court in the case of Election Commission of India Vs. Ashok Kumar (supra), the High Court would have ample power to exercise its jurisdiction. The relevant portion of the judgment is reproduced hereunder:-
"18. Under Article 243-ZG the bar is against interference in electoral matters, but the present is not an electoral matter but it relates to the validity of a notification including certain villages within the municipal limits.
19. As per Article 243-ZG, no election to any municipality can be called in question except by an election petition presented to such authority and in such manner, as is provided in the Act. Section 441 of the Act provides for Election Petition and Section 441-B of the Act enumerates the grounds for declaring elections or nominations to be void, but learned Advocate General has not pointed out that the challenge raised to the validity of the impugned notification can be raised under any of the grounds under Section 441-B of the Act.
20. Even otherwise, nothing has been pointed out to show that the election process will be hampered in any manner by excluding these villages, which have been included within the limits of the Municipal Corporation by the impugned Notification issued contrary to the provisions of Section 405 of the Act. Election can still be held in accordance with law by excluding these villages or by issuing a final notification in accordance with the requirement of Section 405 of the Act.
21. The three judge bench of the Supreme Court in the matter of Election Commission of India through secretary Vs. Ashok Kumar and others reported in 2000(8) SCC 216 after taking note of the principle laid down in the Constitution Bench judgment in the matter of N.P. Ponnuswami Vs. Returning Officer [AIR 1952 SC 64] and Mohinder Singh Gill Vs. Chief Election Commissioner [AIR 1978 SC 851] has, while considering Article 329(b) containing the similar bar, held that if the petition presented to the Court "calls in question an election" the bar of Article 329(b) is attracted.
Else it is not. XX XX XX XX
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(46 of 65) [CW-2509/2020]
22. In the present matter also the election has not been called in question, therefore, the bar of Article 243-ZG will not be attracted. Even otherwise the term of the elected body of the municipal corporation, Indore is up to January 2015 and the elections can be held lawfully by complying with the requirement of the Act within time. The State which had taken adjournment after concluding the final arguments, is not justified in taking the plea that now the elections have been announced.
23. Counsel for the respondent has placed reliance upon the judgment of the Supreme Court in the matter of Meghraj Kothari Vs. Delimitation Commission and others reported in AIR 1967 SC 669, in the matter of Lakshmi Charan Sen and others Vs. A.K.M. Hassan Uzzaman and others reported in 1985(4) SCC 689, in the matter of State of U.P. and others Vs. Pradhan Sangh Kshettra Samiti and others reported in 1995 Supp (2) SCC 305 and in the matter of Boddula Krishnaiah and Another Vs. State Election Commissioner, A.P. and others reported in 1996(3) SCC 416, but these are the cases where the challenge in the writ petition was raised relating to the election process; such as defects in electoral roll etc. for which the remedy of election petition was available but the present case stands on different footing, where neither the challenge has been raised after the commencement of the election process nor the dispute relates to the election."
37. The Karnataka High Court in L.Shivanna Vs. State of Karnataka reported in ILR 1988 Karnataka 2121 also had an occasion to deal with the power of High Court under Article 226 of the Constitution of India vis-à-vis the power imposed under Article 429(b) of the Constitution of India and it is held that power of the High Court under Article 226 of the Constitution of India is closed if the doors of the Election Tribunal is open and not closed if the doors of the Election Tribunal is not open. The Karnataka High Court also held that if any dispute cannot be adjudicated after election in an election petition, the remedy under Article 226 of the Constitution of India is available to the aggrieved citizen. The relevant portion of the judgment is quoted as under:-
"23. For these reasons, we are of the view that the bar imposed by Article 429(b) does not extend to the (Downloaded on 11/06/2020 at 09:13:01 PM) (47 of 65) [CW-2509/2020] adjudication of questions relating to the legality of an electoral roll. To put it in a nut shell, our conclusion is - the doors of the High Court under Article 226 is closed if the doors of the Election Tribunal is open, and not closed if the doors of the Election Tribunal is not open. Any view to the 'contrary would lead to disastrous result, in that, even if inclusion of names or non-inclusion of the names of persons in the electoral roll is patently illegal, there would be no remedy at all. Rule of law being one of the basic structures of our Constitution, any interpretation which leads to such a result, that is, no remedy for the redressal of a legal injury must be held to be not envisaged by the provisions of the Constitution. An indication in this regard is available in the Judgment of the Supreme Court in Mohinder Singh, of the Judgment in which the conclusion is incorporated, reads:
"93. We conclude stating that the bar of Article 429(b) is as wide as the door of Section 100 read with Section
98. The Writ Petition is dismissible but every relief (given factual proof) now prayed for in the pending election petition is within reach. On this view of the law ubi jus ibi remedium is vindicated election in justice is avoided and the constituency is allowed to speak effectively. In the light of and conditioned by the law we have laid down, we dismiss the appeal. Where the dispute which spirals to this Court is calculated to get a clarification of the legal calculus in an area of national moment, the parties are the occasion but the people are the beneficiaries, and so costs must not be visited on a particular person. Each party will bear his own costs."
As can be seen from the above paragraph, in that case the Court held that the Writ Petition was not maintainable, for the reason the ground on which the said Writ Petition was presented, could be raised in an election petition and therefore the Supreme Court observed that the principle of ubi Jus ibi remedium' stood vindicated in that case, though the remedy stood postponed to a date after the election, which postponement was on sound public policy and the necessity of utmost expedition in the matter of holding election to the Parliament and State Legislature which is the very essence of a democratic system. Applying the same principle it should be held that in a case of this type in which the challenge is to the inclusion of ineligible persons in the electoral roll, as the same cannot be adjudicated after election in an election petition, the remedy under Article 226; the only remedy available under the Constitution; is available to an aggrieved citizen."
38. The coordinate Bench of this Court at Principal Seat at Jodhpur in the case of Sampat Singh Vs. The Election Commission, Rajasthan through Commissioner, Jaipur & (Downloaded on 11/06/2020 at 09:13:01 PM) (48 of 65) [CW-2509/2020] Ors. [S.B.Civil Writ Petition Nos.851-852, 874, 883 & 994/2010] decided on 30.09.2010 has also considered and rejected the objection of not entertaining the writ petition where the challenge was with regard to deletion of names from electoral rolls and as such the bar contained in Article 243-O of the Constitution of India was not made applicable. The coordinate Bench also relied upon the judgment passed by the Andhra Pradesh High Court in the case of S.Fakruddin Vs. The Government of A.P. reported in AIR 1996 Andhra Pradesh
37. The relevant extract of the judgment is quote as under:-
"XX XX XX Thus, in view of the law laid down by the Hon'ble Supreme Court as aforesaid, in considered opinion of this court, the contention of the learned AAG that the writ petitions preferred by the petitioners challenging the deletion of their names from the electoral rolls by the Electoral Registration Officer is not maintainable in view of the bar contained under Article 243-O of the Constitution of India, is devoid of any merit."
39. Learned Additional Advocate General Ms.Sheetal Mirdha has argued that judgment rendered by the Division Bench of this Court at Principal Seat at Jodhpur in the case of Jai Singh Vs. The State of Rajasthan & Ors. [D.B.Civil Writ Petition No.17993/2019] dated 13.12.2019 puts a complete bar on the power of High Court under Article 226 of the Constitution of India to interfere, in delimitation proceedings issued by way of notification by the State Government. The relevant extract of the judgment is reproduced hereunder:-
"57. This Court has already noted above the issues raised by various counsels for the petitioners, but broadly, the issues can be classified in two categories; firstly, the grievances arising out of the delimitation exercise prior to 15- 16.11.2019 and the grievances arising out of delimitation exercise continuing after 15-16.11.2019 upto 01- 02/12/2019.(Downloaded on 11/06/2020 at 09:13:01 PM)
(49 of 65) [CW-2509/2020]
58. The individual lawyers explained the territorial, geographical, population, distance, logic, practicability and other issues involved in the delimitation upto date of 15- 16/11/2019, which does not require any consideration on merits as the iron curtain with the strength of Article 243-O of the Constitution and Sections 101 and 117 of the Act of 1994 has been drawn on 15/16.11.2019.
59. The issues pertaining to the factual matrix of the guidelines and the representations/recommendations/ consideration made by the Sub Committee are of factual matrix, and by virtue of Article 243-O of the Constitution read with Section 101 of the Act of 1994, there is a bar in the interference by this Court, after the result of the delimitation was notified. Admittedly, in all the present writ petitions under adjudication before this Court, the final notification had been issued on 15/16.11.2019.
60. This Court also finds that the bar under Article 243-O of the Constitution of India is completely fortified by the precedent law of State of U.P. & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. (supra) and Bhupendra Pratap Singh Rathore Vs. State of Rajasthan & Ors. (supra).
61. In light of the aforesaid judgments, this Court is not inclined to travel beyond the bar created under Article 243-O of the Constitution of India, and while maintaining the sanctity of the same, deems it appropriate to uphold all the proceedings upto the notification dated 15/16.11.2019.
62. In State of U.P. & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. (supra), the Hon'ble Supreme Court has already held that although Clause (a) of Article 243-O of the Constitution enacts a bar on the interference by the courts in electoral matters including questioning of the validity of any law relating to delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be made under Article 243-K and the election to any panchayat, the question of the validity of the delimitation of the constituencies and also the allotment of seats to them, cannot be gone into.
63. However, this Court is perturbed to see that the sanctity of the constitutional provision of Section 243-O of the Constitution of India read with Section 101 of the Act of 1994 has been breached by the State in an arbitrary, rash and negligent manner, and it is not palpable that number of notifications could be made for continuing the delimitation exercise regarding gram panchayats and panchayat samitis beyond the iron curtain of the final notification issued on 15- 16.11.2019.
64. to 70. XX XX XX (Downloaded on 11/06/2020 at 09:13:01 PM) (50 of 65) [CW-2509/2020]
71. In view of the aforesaid observations, while dismissing all the issues pertaining to non-consideration of representations/non-consideration of recommendations/ changes made in recommendations/changes made by the Sub Committee/changes not considered by the Sub Committee/not considered in the proposals/not considered by the District Collectors are held to be not maintainable, as this Court draws a strict line while adhering to the precedent laws of State of U.P. & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. (supra) and Bhupendra Pratap Singh Rathore Vs. State of Rajasthan & Ors. (supra). This Court is conscious that it cannot cross the golden line, which reflects the mandate of the Constitution of India itself, as laid down under Article 243-O. Thus, the petitions are dismissed as far as the pre-proceedings to the notification dated 15/16.11.2019 are concerned. However, at the same time, this Court is of the considered opinion that such golden line prescribed by the Constitution of India read with Section 101 of the Act of 1994 cannot be crossed by the State as it will amount to abuse of process of law, as the delimitation exercise cannot be an ever continuing exercise, and the same has to be completed in one procedure, spanning between the initial notice which in this case was dated 12.06.2019 to the final notification which was 15/16.11.2019 and has to be brought to an end then and there. It cannot be an ever continuing exercise, as it shall jeopardize the sanctity of the mandate of the Constitution, and thus, all the notifications subsequent to the notification dated 15/16.11.2019, pertaining to the issue in question, stand quashed and set aside, except for the notifications which are purely rectifying the typographical errors."
40. This Court on careful reading of the said judgment finds that the Division Bench has considered the judgment rendered by the Apex Court in the case of State of U.P. & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. reported in 1995 Supp (2) SCC 305 and a judgment rendered by the Division Bench of this Court in the case of Bhupendra Pratap Singh Rathore Vs. State of Rajasthan & Ors. reported in 2015(2) WLC (Raj.) 607. This Court finds that the Division Bench of this Court while relying upon the judgment of the Apex Court in the case of State of U.P. & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. (supra) has held that interference by the courts in electoral matters including (Downloaded on 11/06/2020 at 09:13:01 PM) (51 of 65) [CW-2509/2020] questioning of the validity of any law relating to delimitation of constituencies or allotment of seats to such constituencies made or purported to be made under Article 243-K of the Constitution of India and the election to any panchayat, the question of the validity of delimitation of the constituencies and also the allotment of seats to them, cannot be gone into.
41. This Court finds that the Division Bench while upholding the pre-proceedings to the notification dated 15/16.11.2019 upheld the State action, however, the Division Bench found that the State cannot abuse the process of law as the delimitation exercise was found to be continuing exercise and as such it could jeopardize the sanctity of the mandate of the Constitution and as such all the notifications subsequent to the notification dated 15/16.11.2019, were quashed and set aside.
42. In the humble opinion of this Court, the Division Bench itself has found that if there is arbitrariness or the State authorities indulge in violating the law itself, the bar contained under Article 243-O(a) of the Constitution of India may not be made applicable for judging the action of the State where there is a manifest arbitrariness in their action.
43. The reliance placed by the learned Additional Advocate General on the judgment rendered by the Division Bench of this Court in the case of Bhupendra Pratap Singh (supra), the Division Bench had held that once a notification of delimitation of the constituencies was published in the official gazette, the same has got force of law and interference by the courts in the delimitation of constituencies is barred. The relevant portion of the judgment passed by the Division Bench is reproduced as under:- (Downloaded on 11/06/2020 at 09:13:01 PM)
(52 of 65) [CW-2509/2020] "Keeping in view the law laid down by the Apex Court, in our considered view, the gazette notification dt.05.11.2014 relating to delimitation of Panchayat area; or formation of constituencies in the said area; or allotments of seats to the constituencies is a legislative act in nature and could neither be challenged nor the court can entertain such challenge and in view of the law declared by the Apex Court, prohibiting courts to entertain challenge in view of Art.243-C, 243-K and 243-O in respect of the above aspects, raised by the petitioners pertaining to constitution/reconstitution/ delimitation of Panchayat areas under the gazette notification dt.05.11.2014 cannot be entertained by this court u/Art.226 of the Constitution and the objection and contentions canvassed by the petitioners in view of Art.243- C, 243-K read with 243-O coupled with law declared by the Apex Court, is wholly devoid of substance. So far as the objection raised by counsel for petitioner that in the judgment cited by the Apex Court, as there was a clear prohibition of S.10(2) of the Delimitation Act, the writ petitions are maintainable as the Delimitation Act is not applicable in the facts & circumstances of the instant case. The objections raised is of no substance for the reason that under 73rd amendment to the Constitution, while introducing Part-IX bar to interference by courts in electoral matters u/Art.243-O(a) and corresponding amendments made in the Rajasthan Panchayati Raj Act, 1994 while functioning for delimitation/alteration of the Panchayati Raj Institutions are regulated in terms of S.101 of the Act, 1994 and at the same time, there is a bar to interference by courts in the matters relating to delimitation of constituencies and wards u/S.117 of the Act,1994 and that being so, the principles laid down by the Apex Court are applicable in the facts & circumstances of the instant case and the gazette notification dt.05.11.2014 being a legislative act in nature and keeping in view the bar to interference in the matters relating to the delimitation of the constituencies u/Art.243-O(a) of the Constitution and so also S.117 of the Act, 1994, the submission made by the petitioner suffers lack of merit. In our considered view, we find substance in the preliminary objections raised by the respondents which deserve worth acceptance and keeping in view the mandate of Art.243-O(a) of the Constitution read with S.117 of the Act, 1994, once a notification of delimitation of constituencies dt.05.11.2014 has been published in the official gazette u/S.101 of the Act, 1994, it has got the force of law and going by the effect of Art.243-O(a), interference by courts in respect of delimitation of constituencies is barred. Such is the importance of the said notification and the non-obstante clause therein is important and become operative."
44. A careful reading of the judgment of the Division Bench reveals that law laid down by the Apex Court in the case of State (Downloaded on 11/06/2020 at 09:13:01 PM) (53 of 65) [CW-2509/2020] of U.P. & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. (supra) was relied upon by the Division Bench and accordingly, the writ petitions, challenging the delimitation, were dismissed.
45. This Court finds that the Division Bench had formed its opinion on the basis of the judgment passed in the case of State of U.P. & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. (supra) (2 Judge Bench) and this Court deems it proper to reproduce the relevant extract of the judgment passed by the Apex Court in the case of State of U.P. & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. (supra), as follows:-
"45. What is more objectionable in the approach of the High Court is that although clause (a) of Article 243-0 of the Constitution enacts a bar on the interference by the courts in electoral matters including the questioning of the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be made under Article 243-K and the election to any panchayat, the High Court has gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them. We may, in this connection, refer to a decision of this Court in Meghraj Kothari v. Delimitation Commission & Ors. [(1967) 1 SCR 400]. In that case, a notification of the Delimitation Commission whereby a city which had been a general constituency was notified as reserved for the Scheduled Castes. This was challenged on the ground that the petitioner had a right to be a candidate for Parliament from the said constituency which had been taken away. This Court held that the impugned notification was a law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made under Article 327 of the Constitution, and that an examination of sections 8 and 9 of the Delimitation Commission Act showed that the matters therein dealt with were not subject to the scrutiny of any court of law. There was a very good reason for such a provision because if the orders made under sections 8 and 9 were not to be treated as final, the result would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court. Although an order under Section 8 or 9 of the Delimitation Commission Act and published under Section 10 [1] of that Act is not part of an Act of Parliament, its effect is the same. Section 10 [4] of that Act puts such an order in the same position as a law made by the Parliament itself which could only be made by it under Article 327. If we read Articles 243-C, 243-K and 243- (Downloaded on 11/06/2020 at 09:13:01 PM)
(54 of 65) [CW-2509/2020] 0 in place of Article 327 and sections 2 [kk], 11-F and 12-BB of the Act in place of Sections 8 and 9 of the Delimitation Act, 1950, it will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged or the Court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. The High Court not only entertained the challenge but has also gone into the merits of the alleged grievances although the challenge was made after the notification for the election was issued on 31st August, 1994."
(Emphasis supplied.)
46. This Court, in its all humility, finds that the judgment which was passed by the Apex Court in the case of State of U.P. & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. (supra) was referred in a subsequent judgment of the Apex Court in the case of Boddula Krishnaiah & Anr. Vs. State Election Commissioner reported in AIR 1996 SC 1595 (3 Judge Bench). The Apex Court after quoting the judgment passed in the case of State of U.P. & Ors. Vs. Pradhan Sangh Kshettra Samiti & Ors. (supra) in para-10 of the judgment, held that if election process is set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh, in particular when election has already been held in which the voters were allegedly prevented to exercise their franchise, inasmuch as such dispute is covered by an election dispute and remedy is thus, available at law for redressal. The Apex Court also held that direction in that case of not declaring the result of election or to conduct fresh poll was not correct but the writ petition was (Downloaded on 11/06/2020 at 09:13:01 PM) (55 of 65) [CW-2509/2020] maintainable before the High Court under Article 226 of the Constitution of India. The relevant paragraphs 11 and 12 of the judgment are quoted hereunder:-
"11. Thus, it would be clear that once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh in particular when election has already been held in which the voters were allegedly prevented to exercise their franchise. As seen, that dispute is covered by an election dispute and remedy is thus available at law for redressal.
12. Under these circumstances, we hold that the order passed by the High Court is not correct in law in giving direction not to declare the result of the election or to conduct fresh poll for 20 persons, though the writ petition is maintainable. The High Court, pending writ petition, would not be justified in issuing direction to stall the election process. It is made clear that though we have held that the respondents are not entitled to the relief by interim order, this order does not preclude any candidate including defeated candidate to canvass the correctness of the election. They are free as held earlier, to seek remedy by way or an election petition as provided in the Act and the Rules."
(Emphasis supplied.)
47. This Court further finds that the Apex Court in the case of Election Commission of India Vs. Ashok Kumar (supra) (3 Judge Bench) considered the scope of interference in the election process and High Court's jurisdiction to entertain petition under Article 226 of the Constitution of India. The Apex Court considered its earlier judgments in the case of N.P.Ponnuswami Vs. The Returning Officer, Namakkal Constituency & Ors. reported in AIR 1952 SC 64 and in the case of Mohinder Singh Gill and Anr. Vs. The Chief Election Commissioner, New Delhi & Ors. reported in AIR 1978 SC 851 and laid down the parameters where High Courts could exercise its power and held that if the petition presented to the Court "calls in question an election", the (Downloaded on 11/06/2020 at 09:13:01 PM) (56 of 65) [CW-2509/2020] bar of Article 329(b) of the Constitution of India is attracted. Else it is not.
48. This Court finds that the judgment passed by the Apex Court in the case of Election Commission of India Vs. Ashok Kumar (supra) has consistently been followed by the Apex Court in the case of Smt.Bharati Reddy Vs. The State of Karnataka & Ors. reported in 2017(9) Scale 156, K.Venkatachalam Vs. A.Swamickan reported in (1999) 4 SCC 526 and Dravida Munnetra Kazhagam (DMK) Vs. Secretary Governors Secretariat reported in (2019) Supreme (SC) 1326.
49. Learned Additional Advocate General Ms.Sheetal Mirdha submitted that the judgment passed by the Division Bench of this Court in the case of Bhupendra Pratap Singh Rathore (supra) has been followed by the another coordinate Division Bench at Principal Seat at Jodhpur in Mushe Khan & Anr. Vs. State of Rajasthan & Ors. [D.B.Civil Writ Petition No.8157/2014] & other connected cases decided vide order dated 19.12.2014.
50. This Court finds that the judgment dated 19.12.2014 passed by the Division Bench of this Court at Principal Seat at Jodhpur in the case of Mushe Khan & Anr. Vs. State of Rajasthan & Ors. (supra) was challenged before the Apex Court by Asu Lal & Others in SLP (C) No.319/2015 arising out of the judgment and order dated 19.12.2014 passed in S.B.Civil Writ Petition No.8211/2014 and the Apex Court vide order dated 26.02.2020 disposed of all the SLPs in view of subsequent delimitation and question of law was left open.
51. This Court further finds that the judgment dated 13.12.2019 passed by the Division Bench at Principal Seat at Jodhpur in the (Downloaded on 11/06/2020 at 09:13:01 PM) (57 of 65) [CW-2509/2020] case of Jai Singh Vs. The State of Rajasthan & Ors. (supra) was also challenged by the State of Rajasthan before the Apex Court and on 08.01.2020 the Apex Court stayed the operation of the order dated 13.12.2019. The Apex Court on 24.01.2020 recorded the statement of State Election Commission that elections in Rajasthan will be held in accordance with the notifications dated 15/16.11.2019, 23.11.2019, 01/02.12.2019 and 12.12.2019. The Apex Court finally disposed of all the SLPs vide its order dated 04.02.2020 and the interim orders dated 08.01.2020 and 24.01.2020 were confirmed.
52. This Court finds that the Apex Court in the case of Maharashtra Chess Association Vs. UOI & Ors. reported in 2019 (10) Scale 167 has held that role of the High Court under the Constitution is crucial to ensuring the Rule of Law throughout its territorial jurisdiction and in order to achieve these transcendental goals, the powers of the High Court under its writ jurisdiction are necessarily broad and they are conferred in aid of justice and no limitation can be placed on the powers of the High Court in exercise of its writ jurisdiction. The Apex Court has also held that the powers which the High Court may exercise under its writ jurisdiction, are not subject to strict legal principles. The relevant portion of the judgment is reproduced hereunder:-
"12. The role of the High Court under the Constitution is crucial to ensuring the rule of law throughout its territorial jurisdiction. In order to achieve these transcendental goals, the powers of the High Court under its writ jurisdiction are necessarily broad. They are conferred in aid of justice. This Court has repeatedly held that no limitation can be placed on the powers of the High Court in exercise of its writ jurisdiction. In A.V.Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani (1962) 1 SCR 753 a Constitution Bench of this Court held that the nature of power exercised by the High Court under its writ jurisdiction (Downloaded on 11/06/2020 at 09:13:01 PM) (58 of 65) [CW-2509/2020] is inherently dependent on the threat to the rule of law arising in the case before it:
"10...We need only add that the broad lines of the general principles on which the court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible Rules which should be applied with rigidity in every case which comes up before the court."
The powers of the High Court in exercise of its writ jurisdiction cannot be circumscribed by strict legal principles so as to hobble the High Court in fulfilling its mandate to uphold the Rule of law.
13. While the powers the High Court may exercise under its writ jurisdiction are not subject to strict legal principles, two clear principles emerge with respect to when a High Court's writ jurisdiction may be engaged. First, the decision of the High Court to entertain or not entertain a particular action under its writ jurisdiction is fundamentally discretionary. Secondly, limitations placed on the court's decision to exercise or refuse to exercise its writ jurisdiction are self- imposed. It is a well settled principle that the writ jurisdiction of a High Court cannot be completely excluded by statute. If a High Court is tasked with being the final recourse to upholding the rule of law within its territorial jurisdiction, it must necessarily have the power to examine any case before it and make a determination of whether or not its writ jurisdiction is engaged. Judicial review under Article 226 is an intrinsic feature of the basic structure of the Constitution."
53. Recently, the Apex Court in the case of Benedict Denis Kinny & Ors. Vs. Tulip Brian Miranda & Ors. [Civil Appeal Nos.1429-1430/2020] decided on 19.03.2020 has again considered the scope of exercise of power of High Court under Article 226 of the Constitution of India and legal fiction engrafted in a State Enactment. The Apex Court has held that power of judicial review, vested in the High Court under Article 226 and the Apex Court under Article 32 of the Constitution of India, is an integral and essential feature of the Constitution and is basic structure of our Constitution. The jurisdiction under Article 226 is (Downloaded on 11/06/2020 at 09:13:01 PM) (59 of 65) [CW-2509/2020] original, extraordinary and discretionary. The look out of the High Court is to see whether injustice has resulted on account of any decision of a constitutional authority, a statutory authority, a Tribunal or an authority within the meaning of Article 12 of the Constitution of India. The Apex Court also held that power under Article 226 of the Constitution overrides any contrary provision in a statute and the power of the High Court under Article 226 cannot be taken away or abridged by any contrary provision in a statute. The Apex Court also held that when a citizen has right to judicial review against any decision of statutory authority, the High Court in exercise of judicial review had every jurisdiction to maintain the status quo so as to by lapse of time, the petition may not be infructuous and the interim order can always be passed by a High Court in exercise of writ jurisdiction to maintain the status quo so that at the time of final decision of the writ petition, the relief may not become infructuous. The relevant portion of the judgment is reproduced hereunder:-
"47. From the above preposition laid down by this Court, it is clear that such interim direction can be passed by the High Court under Article 226, which could have helped or aided the Court in granting main relief sought in the writ petition. In the present case, the decision of the Caste Scrutiny Committee having been challenged by the writ petitioners and the High Court finding prima facie substance in the submissions granted interim order, which ultimately fructified in final order setting aside the decision of the Caste Scrutiny Committee. The interim order, thus, passed by the High Court was in aid of the main relief, which was granted by the High Court.
48 to 50. XX XX XX
51. Shri Choudhari has also placed reliance on K. Prabhakaran Vs. P. Jayarajan, (2005) 1 SCC 754 for the preposition that subsequent decision of setting aside the conviction would not have the effect of wiping out the disqualification, which did exist on the focal point dates. The decisive dates are the dates of election and the date of (Downloaded on 11/06/2020 at 09:13:01 PM) (60 of 65) [CW-2509/2020] scrutiny of nomination and not the date of judgment in an election petition or in appeal there against. There can be no dispute to the preposition as laid down by this Court in K. Prabhakaran (supra). Present is not a case of any kind of disqualification of the respondent at the time of holding election or on the date of scrutiny of nomination. The above judgment has no application at all. We, thus, do not find any substance in the submission of the learned counsel for the appellant that High Court could not have passed an interim order in the writ petitions filed by the respondents, which may have effect of the respondents' continuance after expiry of period of six months by which date, they had to file their Caste Validity Certificate. There is no fetter in the jurisdiction of the High Court in granting an interim order in a case where caste claim by respondents was illegally rejected before the expiry of period of six months and the High Court granted the interim order before the expiry of period of six months. In the facts of the present case, the deeming fiction of retrospective termination of the election could not come in operation due to the interim order passed by the High Court, hence deeming fiction under Section 5B second proviso never came into existence to retrospectively terminate the election of the respondent. We have already held that the submission of the appellant that interim order of the High Court could not have been allowed to continue beyond the period of six months/one year cannot be accepted. No such fetter can be read in the jurisdiction of the High court or in the interim order passed by the High Court in exercise of the jurisdiction under Article 226 nor any kind of fetter can be read from any State enactment. In view of the foregoing discussions, we arrive at following conclusions:-
(i) The power of judicial review vested in the High Courts under Article 226 and this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution and is basic structure of our Constitution. The jurisdiction under Article 226 is original, extraordinary and discretionary. The look out of the High Court is to see whether injustice has resulted on account of any decision of a constitutional authority, a tribunal, a statutory authority or an authority within meaning of Article 12 of the Constitution.
(ii) The Courts are guardians of the rights and liberties of the citizen and they shall fail in their responsibility if they abdicate their solemn duty towards the citizens.
The scope of Article 226 is very wide and can be used to remedy injustice wherever it is found.
(iii) The power under Article 226 of the Constitution overrides any contrary provision in a Statute and the power of the High Court under Article 226 cannot be taken away or abridged by any contrary provision in a Statute.
(Downloaded on 11/06/2020 at 09:13:01 PM)
(61 of 65) [CW-2509/2020]
(iv) When a citizen has right to judicial review against any decision of statutory authority, the High Court in exercise of judicial review had every jurisdiction to maintain the status quo so as to by lapse of time, the petition may not be infructuous. The interim order can always be passed by a High Court in exercise of writ jurisdiction to maintain the status quo in aid of the relief claimed so that at the time of final decision of the writ petition, the relief may not become infructuous.
(v) It is true that requirement of submission of Caste Validity Certificate within a period of one year under Section 5B of Mumbai Municipal Corporation Act is mandatory requirement but in the facts of the case before us before the expiry of the period of six month, the Caste Scrutiny Committee had illegally rejected the claim necessitating filing of writ petition by aggrieved persons in which writ petition the interim relief was granted by the High Court. The power of the High Court to grant an interim relief in appropriate case cannot be held to be limited only for a period of one year, which was period envisaged in Section 5B for submission of the Caste Validity Certificate. No such fetter on the power of the High Court can be read by virtue of provision of Section 5B.
(vi) There is no fetter in the jurisdiction of the High Court in granting an interim order in a case where caste claim of the respondents was illegally rejected before the expiry of period of six months and the High Court granted the interim order before the expiry of the period of six months, as then prescribed.
(vii) In the facts of the present case, the deeming fiction under Section 5B of retrospective termination of the election could not come in operation due to the interim order passed by the High Court."
54. Learned Additional Advocate General Ms.Sheetal Mirdha has placed reliance on a judgment of the coordinate Bench of this Court passed in the case of Subhash Chand Saini Vs. State of Rajasthan & Ors. [S.B.Civil Writ Petition No.14532/2014] and submitted that the coordinate Bench of this Court has found that the decision rendered by the coordinate Bench at Principal Seat at Jodhpur in the case of Magna Ram Vs. State of Rajasthan & Ors. reported in WLC (Raj.) 2004(4) 347 cannot (Downloaded on 11/06/2020 at 09:13:01 PM) (62 of 65) [CW-2509/2020] be said to be a good law in view of the judgment passed by the Division Bench of this Court in the case of Bhupendra Pratap Singh Rathore (supra).
55. This Court finds that as far as the judgment passed by the coordinate Bench of this Court in Subhash Chand Saini's case (supra) is concerned, the Apex Court in the case of Election Commission of India Vs. Ashok Kumar & Ors. (supra) and the subsequent judgments, referred to in previous paragraphs, has already laid down law that writ jurisdiction of a High Court under Article 226 of the Constitution of India cannot be completely excluded by any statute or enactment and in election matters, the power of High Court of judicial review cannot be taken away.
56. The upshot of the above discussion and in view of the law laid down by the Apex Court, this Court reaches to the following conclusions:-
(i) The power of judicial review under Article 226 of the Constitution of India is an essential feature of the Constitution which can neither be tinkered with nor eroded.
(ii) The writ petition filed under Article 226 of the Constitution of India will be maintainable provided writ petition does not call in question an election and the bar contained under Article 243-O(a) of the Constitution of India will not apply to the writ jurisdiction of the High Court.
(iii) The words "any Court" occurring in Article 243-O(a) of the Constitution will not include the High Court.
(iv) Writ jurisdiction will be available to a citizen against action or order of the State authorities and judicial review can be made by the High Court of decisions of statutory (Downloaded on 11/06/2020 at 09:13:01 PM) (63 of 65) [CW-2509/2020] bodies, if a case is made out of malafide/arbitrary exercise of power or action is taken in breach of law.
(v) The remedy of election petition is available to a candidate, if election itself is called in question by such candidate.
(vi) The citizens cannot be rendered remediless against arbitrary action of the State Government and right to file writ petition, would be available to a citizen.
(vii) There is a distinction between 'power of judicial review' and 'judicial power'. The 'power of judicial review' is specifically conferred on the Constitutional Courts and the other Courts and Tribunals, created under different enactment, are conferred with 'judicial power'.
57. Accordingly, the objection raised by the State about maintainability of the writ petitions is overruled and the writ petitions are held to be maintainable.
VALIDITY OF ORDERS DATED 24.01.2020, 27.01.2020 AND OTHER CONSEQUENTIAL ORDERS:
58. This Court finds that the entire controversy in the present litigation has arisen due to the notifications issued by the State Election Commission from time to time. The initial notification issued under Section 101 of the Act of 1994 dated 15/16.11.2019 reconstituting Gram Panchayats and subsequent notifications post- notification dated 15/16.11.2019 were put to challenge before the Division Bench at Principal Seat at Jodhpur in the case of Jai Singh Vs. The State of Rajasthan & Ors. (supra). The Division Bench upheld the notification dated 15/16.11.2019 and the subsequent notifications of delimitation were quashed and set aside vide order (Downloaded on 11/06/2020 at 09:13:01 PM) (64 of 65) [CW-2509/2020] dated 13.12.2019.
59. The matter travelled to the Apex Court, as has been noted above and interim order was passed by the Apex Court on 08.01.2020 and vide order dated 24.01.2020, the Apex Court permitted the State Election Commission to conduct elections in the State of Rajasthan, as per the notification dated 15/16.11.2019, 23.11.2019, 01/02.12.2019 and 12.12.2019.
60. The State Government in view of the orders passed by the Apex Court issued subsequent notifications dated 24.01.2020 and 27.01.2020 and accordingly, different gram panchayats were reconstituted/delimitation took place and further draw of lottery for reservation was also carried out.
61. This Court finds that the coordinate Bench at Principal Seat at Jodhpur in the case of Virender Singh Vs. State of Rajasthan & Ors. [S.B.Civil Writ Petition No.1693/2020] and other connected cases decided vider order dated 26.02.2020 has considered different orders passed by the Apex Court after the decision of the Division Bench in Jai Singh's case (supra) and found that variation in Gram Panchayat and reservation of seats or change in different categories by draw of lottery was necessary and logical action of the State, in consonance with the provisions of Section 16 of the Act of 1994 and Rule 7 of the Rules of 1994 which provide for procedure for reservation.
62. The coordinate Bench has found that subsequent exercise by the State Government cannot be faulted with and challenge to the draw of lottery was not found in favour of the petitioners and action of the State Government has been approved. (Downloaded on 11/06/2020 at 09:13:01 PM)
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63. This Court was informed that order dated 26.02.2020 passed by the coordinate Bench at Principal Seat at Jodhpur in Virender Singh's case (supra) has been put to challenge before the Division Bench by filing D.B.Special Appeal Writ No.234/2020 [Munni Kanwar Vs. State of Rajasthan], however, the said special appeal is said to be pending and no interim order has been passed.
64. Once the coordinate Bench at Principal Seat at Jodhpur has upheld the notifications dated 24.01.2020 and 27.01.2020 and the consequential orders of re-draw of lottery, this Court does not want to take any contrary view and follows the same view, as has been taken by the coordinate Bench at Principal Seat at Jodhpur in the case of Virender Singh (supra).
65. Accordingly, the action of the State Government in issuing notifications dated 24.01.2020 and 27.01.2020 and the consequential orders do not require any interference by this Court and all the writ petitions are dismissed. No costs.
66. Let a copy of this order be separately placed in each file.
(ASHOK KUMAR GAUR),J Solanki DS, PS (Downloaded on 11/06/2020 at 09:13:01 PM) Powered by TCPDF (www.tcpdf.org)