Andhra HC (Pre-Telangana)
Prakasam District Sarpanchas ... vs Govt. Of A.P. And Others on 13 December, 2000
Equivalent citations: 2001(1)ALD143, 2001(1)ALT138
ORDER
MOTILAL B. NAIK, J .
1. One of the Directive Principles of State Policy as enshrined in Article 40 of the Constitution of India is that the States shall take steps to organise village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-Government. Past experience showed that the Panchayat Raj Institutions have not been able to acquire the status and dignity of viable and responsive peoples bodies due to a number of reasons including absence of regular elections, prolonged supersessions, insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and Women, inadequate devolution of powers and lack of financial resources. It is in this background, a bill to seek 73rd Amendment to the Constitution of India was introduced to achieve the following objectives, viz. :
"To add a new Part relating to Panchayats in the Constitution to provide for among other things, Gram Sabha in a village or group of villages, constitution of Panchayats at village and other level or levels; direct elections to all seats in Panchayats at the village and intermediate level, if any, and to the offices of Chairpersons of Panchayats at such levels; reservation of seats for the Scheduled Castes and Scheduled Tribes in proportion to their population for membership of Panchayats and office of Chairpersons in Panchayats at each level; reservation of not less than one-third of the seats for women; fixing tenure of 5 years for Panchayats and holding elections within a period of 6 months in the event of supersession of any Panchayat; disqualifications for membership of Panchayats; devolution by the State Legislature of powers and responsibilities upon the Panchayats with respect to the preparation of plans for economic development and social justice and for the implementation of development schemes; sound finance of the Panchayats by securing authorisation from State Legislatures for grants-in-aid to the Panchayats from the Consolidated Fund of the State, as also assignment to, or appropriation by, the Panchayats of the revenues of designated taxes, duties, tolls and fees, setting up of a Finance Commission within one year of the proposed amendment and thereafter every 5 years to review the financial position of Panchayats; auditing of accounts of the Panchayats; powers of State Legislature; to make provisions with respect to elections to Panchayats under the superintendence, direction and control of the Chief Electrol Officer of the State; application of the provisions of the said Part to Union territories; excluding certain States and areas from the application of the provisions of the said Part; continuance of existing laws and Panchayats until one year from the commencement of the proposed amendment and barring interference by Courts in electrol matters relating to Panchayats."
Thus, the 73rd Constitutional Amendment was passed by the Parliament introducing Part IX - 'The Panchayats', to the Constitution of India.
2. In tune with the 73rd Constitutional Amendment, the State of Andhra Pradesh enacted the Andhra Pradesh Panchayat Raj Act, 1994 (Act 13 of 1994) to achieve the objectives as enshrined in the 73rd Constitutional Amendment. Some of the salient features of the A.P. Panchayat Raj Act, 1994 are - to provide reservations to the members belonging to the Scheduled Castes and Scheduled Tribes in proportion to their population in the local bodies; to provide reservations to women and also to the backward classes; creation of a separate State Election Commission for conducting elections to these local bodies; setting up of a Finance Commission to review the financial position of the local bodies; and also for providing a fixed term of office to these local bodies.
3. Elections to the Panchayat Raj Bodies were proposed to be held for the first time under the A.P. Panchayat Raj Act, 1994 (Act 13 of 1994) in the State of Andhra Pradesh, in the month of June, 1995. Notification to that effect was also issued by the State Election Commission on 7-6-1995. However, about 900 and odd writ petitions were filed before this Court assailing various provisions of the A.P. Panchayat Raj Act, 1994 (Act 13 of 1994) and rules made thereunder, under various GOs. Challenge in those Writ Petitions was heard by a Special Full Bench consisting of Five learned Judges of this Court. Various facets of contentions were raised before the Special Full Bench in the said Batch of writ petitions. The Special Full Bench by judgment dated 26-6-1995 in Fakruddin and others v. Govt. of A.P. Rep. By its secretary, Panchayat Raj Department, Hyderabad and others, (Special Full Bench) allowed the said Batch of writ petitions and issued the following directions, viz. :
(1) that rules in G.O. Ms. No.755, dated 30-11-1994 as amended from time to time insofar as they provide for the administrative machinery for the conduct of elections and introduced authorities to share the powers and functions of the Election Commission, are ultra vires the Act and Articles 243-K(1) and (4) of the Constitution of India. They are however spread in such a way in the scheme of the rules that it is difficult to say that one rule is bad and the other is good insofar as they divide the powers of the State Election Commissioner and create independent authorities of course subject to the control and direction of the State Election Commissioner; and (2) that Rules 3 and 3-A in G.O. Ms. No.879, dated 3-12-1994 (the latter inserted by G.O. Ms. No.72, dated 4-2-1995) are ultra vires the Act and Article 243-K(1) and (4) of the Constitution of India.
Since the above provisions of law have guided the respondent-State Government and the State Election Commission and they have proceeded to prepare the electoral roll and conduct the elections accordingly the irresistible conclusion is that elections have suffered serious legal infirmities. Declaring, however, the election void will put the clock back to restart the whole thing, and the ultimate sufferers will be the people, both for the reason of the delay in bringing democratic set up at the village level and the expenditure involved which is from the money belonging to the people and not the persons who have been spending it. We are inclined in such a situation to direct the respondent-State Election Commissioner to-
(1) identify the territorial constituencies including Panchayats which are reserved for Backward Class candidates and ascertain the population of the Backward Class in the said territorial constituencies. In case the population of Backward Class in the said constituencies is on an average such that the same could be reserved by reference to the population, to declare the result of the election and in case it is otherwise to direct for a fresh election by reallotment of seats based on population; and (2) forthwith proceed with verification of the electoral roll of such wards in which names of voters have been added after the final publication of the electoral roll under sub-section (3) of Section 11 of the Act and in case he is satisfied that the voter or voters is/are a genuine persons, to declare the result of the election. If, however, the additional voters whose names are added after the publication of the electoral roll as contemplated under sub-section (3) of Section 11of the Act, are not found genuine, direct for a fresh election.
It is obvious that the verifications aforementioned shall be confined to only such territorial constituencies which are reserved for Backward Class candidates or in which new voters are added after the final publication of the electoral roll. Result of elections in other territorial constituencies may not be found affected except in cases where on account of allotment to a Backward Class candidate a particular ward or Chairperson's election is rendered invalid. This can be solved by identifying as indicated above the territorial constituency reserved for the Backward class candidates and the territorial constituencies which ought to have been reserved for the Backward Class candidates on the basis of the population as in the case of Scheduled Castes and Scheduled Tribes. The State Election Commissioner is expected to understand the implications of the electoral practices and laws and accordingly approach the problem to keep the verification of such constituencies at the minimum level. As a corollary of the above a direction must go to the State Government to provide to the State Election Commissioner on demand sufficient number of Officers who shall work under the control, superintendence and directions of the State Election Commissioner. The results of elections in all other territorial constituencies and all Panchayats however without waiting for verification aforementioned shall be published.
In the result, the petitioners are allowed and ordered as above. Let a mandamus issue forthwith. On the facts and in the circumstances of the case, there shall be no order as to costs".
4. By the time the judgment was delivered by the Special Full Bench on 26-6-1995, elections to the Panchayats were held as scheduled. A Review WP MP No.16875 of 1995 was filed before the Special Full Bench seeking certain clarifications. The said review petition was disposed of by the Special Full Bench on 10-7-1995 issuing certain modified directions. However, the matter did not rest there but was carried to the Supreme Court by both the State Government as well as the State Election Commission in SLP Nos.14407-14412/95. The Hon'ble Supreme Court by an order dated 28th July, 1995, initially directed status-quo regarding operation of the judgment of the Special Full Bench of this Court dated 26-6-1995. The Hon'ble Supreme Court further clarified that the results of the elections so held would not be announced until further orders. Subsequently, on a leave to Appeal being granted, the matters in Civil Appeal Nos.9345-9350/95 were heard by the Supreme Court and by order dated 18-10-1995, white reserving the judgment in the said civil appeals, the Supreme Court passed the following order:
"Since the elections have already held, there is urgency to complete the process of election. We, therefore, stay the operation of the impugned judgment of the High Court in toto. The net result would be results of the elections can be declared by the Election Commission. The parties may file their written submissions, if they so desire, within one week".
5. Subsequently, Civil Appeal Nos.9345-9350/95 were disposed of by the Hon'ble Supreme Court on 8-4-1997 with the following order:--
"It is agreed that elections are over. The results have been declared. The successful candidates have taken the oath of office. In view of the subsequent events it is not proper for this Court to consider the matters in detail at this stage. It is open to the aggrieved parties, if so advised, to take appropriate proceedings before appropriate forum wherein all the questions raised herein can be raised. If any proceedings are initiated, the appropriate Forum will decide the matter as expeditiously as possible unfettered by the judgment of the High Court. The appeals are dismissed accordingly.
Counsel for the State Election Commissioner prays that the adverse remarks made against the Commissioner deserve to be expunged. We are of the view that the State Election Commissioner initially move the High Court in this behalf and if so done the matter would be decided on merits".
6. Second time, after the enactment of A.P. Panchayat Raj Act, 1994 (Act 13 of 1994), elections to the offices of Sarpanches (nearly 22,000 in number) and Ward Members of Gram Panchayats were proposed to be held in the State of Andhra Pradesh in the month of October, 2000 as by that time the term of Sarpanches as well as Ward Members would come to an end. The work relating to the identification of Gram Panchayats and reservations of seats/ offices was done under the control and Supervision of the Commissioner, Panchayat Raj, Government of Andhra Pradesh. Reservation of seats/offices in these local bodies for Backward Classes was provided at 34% by the State of Andhra Pradesh as per the A.P. Panchayat Raj Act, 1994 and the rules made thereunder, apart from providing a specific percentage of seats to women and members belonging to Scheduled Castes and Scheduled Tribes.
7. On the eve of the State Election Commission proposing to issue Election Notification, fresh challenge is made by way of Writ Petition Nos.17232 and 17501 of 2000. Petitioners in WP No.17232 of 2000 are Prakasam District Sarpanchas Association and another, while WP No. 17501 of 2000 is filed by Y.V.B. Rajendra Prasad, President, A.P. Panchayat Sarpanchas Association. In these two writ petitions, petitioners have sought a writ of mandamus declaring Article 243-D(6) of the Constitution of India as opposed to the basic structure theory of the Constitution and also to declare Sections 9(1), (1-A), 15, 202-A of the A.P. Panchayat Raj Act, 1994 and G.O. Ms. No.285, PR/RD&R (Elec.III) Department, dated 20-5-1995 and Memo No.76707/Elec-II/94-2, Panchayat Raj Rural Development dated 4-2-1995 as illegal, arbitrary, unjust, contrary to law and violative of Part IX of the Constitution and violative of Articles 14 and 15 of the Constitution of India and a consequential direction not to give effect to the same and to restrain the authorities from proceeding with issuance of the Election Notification.
8. When these two writ petitions came up for admission, apart from making elaborate submissions on the legality of the provisions as indicated above, Sri S. Ramachandra Rao, learned senior Counsel appearing on behalf of the petitioners brought to our notice about the irregularities committed by the respondents while making reservations to the offices/seats for the members belonging to Backward Classes adopting the method of drawl of lots. According to the learned senior Counsel, the procedure of drawal of lots could have been avoided if the authorities reserved seats/ offices to the members of the Backward Classes in descending order on the basis of the population of the Backward Classes, obtained in a scientific manner. Learned senior Counsel further stated that though this Court on two earlier occasions i.e., way back in the year 1987 in Satyanarayana Reddy v. State of A.P., 1987 (1) ALT 665 and in the year 1995 in Fakruddin's case (supra) found fault and depricated the procedure of making reservations to Backward Classes in Panchayats by drawl of lots, however, the respondents are following the very same procedure this time also without rectifying the deficiencies and if elections to Panchayats are allowed to be held without rectifying the deficiencies, it would be a mockery of democracy and pleaded this Court to interfere and set the things right.
9. On a prima facie hearing of Sri S. Ramachandra Rao, learned senior Counsel appearing on behalf of the petitioners in the above two writ petitions, learned Additional Advocate-General representing the State of Andhra Pradesh and Sri V. V. Prabhakar Rao, Counsel appearing on behalf of the State Election Commission, we were prima facie inclined to examine the controversy in detail keeping in view the two earlier decisions of this Court in Satyanarayana Reddy's case (supra) and in Fakruddin's case (supra). Having taken that view, by an order dated 18-9-2000, we directed the State Election Commission of Andhra Pradesh not to proceed with the issuance of Election Notification, pending passing further orders in the writ petitions. We also directed the respondents to file their counters and place all relevant material enabling us to take a final decision in the matter and posted the writ petitions on 25-9-2000. In the meantime, other writ petitions raising similar issues were filed and they were also ordered to be tagged to these writ petitions. Implead petitions, in WP MP No.23359 of 2000 in WP No.17501 of 2000 is filed by the Communist Party of India (Marxist), Andhra Pradesh State Committee, represented by its Secretary, B.V. Raghavulu, through Sri A. Satya Prasad, advocate, another WP MP No.24350 of 2000 in WP No. l7232 of 2000 is filed by A.P.B.C. Sangam represented by its President T. Bala Goud through Sri A. Ramalingeswara Rao, advocate and third WPMP No.22960 of 2000 is filed in WP No. 17232 of 2000 by Mahajan Front represented by its President U. Sambasiva Rao, through Sri A. Ramalingeswara Rao, Advocate. All these three implead petitions were ordered and the learned Counsel representing the implead petitioners also participated in the proceedings.
10. On behalf of the writ petitioners, Sri S. Ramachandra Rao, learned senior Counsel, leading the arguments, submitted that Article 243-D of the Constitution of India provides reservations for Scheduled Castes, Scheduled Tribes and Backward Classes. According to the learned senior Counsel, under Article 243-D(1), (2) and (3), reservations for Scheduled Castes and Scheduled Tribes in Gram Panchayats to be provided 'as far as may be' in proportion to their population, but when it came to the question of Backward Classes, Article 243-D(6) of the Constitution only gives liberty to the Legislature of respective States for reserving seats in any Gram Panchayat. Article 340 of the Constitution provides for the appointment of Commission to investigate the conditions of socially and educationally backward classes within the territory of India and for recommendations to alleviate the same. In the context of Articles 340, 341, 14, 15 and 16 of the Constitution of India, the status of Backward Classes is substantially similar to that of Scheduled Castes and Scheduled Tribes and as such the benefit which is extended to Scheduled Castes and Scheduled Tribes ought to have been extended to the Backward Classes also. Learned senior Counsel submitted that under Article 243-D(6) providing reservations to Backward Classes in Panchayats has been left to the discretion to the respective State Legislatures without specifying the parameters and as such the said provision has to be declared as unconstitutional and violative of Articles 14 and 15 of the Constitution of India and opposed to the basic structure theory.
11. It is secondly urged by the learned senior Counsel that the State Election Commission is constituted for holding elections to the local bodies as provided under Article 243-K of the Constitution of India and all acts relating to holding of elections to these bodies including identifying reservations/offices shall be done by the State Election Commission. However, learned senior Counsel contended that the State Election Commission has only prepared the electoral roll and except that, all other works including the identification of the areas of Gram Panchayats and reservations of seats for Scheduled Castes/Scheduled Tribes and Backward Classes are being done only by the Governmental authorities, which according to the senior Counsel, is nothing but frustrating the Constitutional Scheme envisaged under 73rd Amendment to the Constitution of India. In effect, such an effort would mean abdication of powers and functions by the State Election Commission.
12. It is thirdly submitted by the teamed senior Counsel that Article 243(b) of the Constitution of India defines 'Gram Sabha'; Article 243(d) describes Panchayat; and Article 243(g) describes a village. Learned senior Counsel stated, in view of Article 243-N, any provision of Gram Panchayat Act contrary to Part IX of the Constitution has to be declared illegal. It is also submitted that Article 243(g) defines a 'village' which means a village specified by the Governor by public notification to be a village for the purposes of this part and includes a group of villages so specified. However, a reading of Article 243 would show that the words 'Gram Sabha', 'Panchayat', 'village' have different connotations in the context of Part IX of the Constitution of India. The power to describe a village for the purposes of Part IX vests in the Governor. The Electoral College relating to such a village constitutes the Gram Sabha. In contrast, Section 3 of the A.P. Panchayat Raj Act empowers the Commissioner to declare a village, which in other words, means the Power of the Governor is sought to be delegated by Section 3 of the said Act to a 'Commissioner' which is ultra vires the provisions of Part IX of the Constitution. Learned senior Counsel, therefore, urges to declare Section 3 of the A.P. Panchayat Raj Act as unconstitutional.
13. It is fourthly submitted by the learned senior Counsel that Article 243-D provides for reservation for Scheduled Castes and Scheduled Tribes in each Panchayat and the number of seats so reserved shall be in proportion to the total number of seats to be filled by direct election in that Panchayat as the population of Scheduled Castes in that Panchayat area bears to the total population of that area. According to the learned senior Counsel, a comprehensive reading of Section 9 of the A.P. Panchayat Raj Act, 1994 however would establish that such a power of reservation is vested in the 'Commissioner' who is a creature of statute who carries out among other functions detailed under Section 44 of the Act. Delegated power cannot be further delegated to Revenue Divisional Officers for identifying reservations as contained in Section 9 of the Act and therefore, seeks to declare that the act of further delegation as unconstitutional. According to the learned senior Counsel, Section 9(1-A) of the Act provides for reservations for Backward Classes without providing for an authority to do so and submitted that the said provision is so vague and liable to be struck down on this ground alone. He further pleaded that the legislative power could not be delegated to any person much less to RDO as by virtue of Article 243-D(6), it vests in the Legislature of a State.
14. It is fifthly contended by the learned senior Counsel that Section 202-A of the A.P. Panchayat Raj Act, 1994 provides "for the purpose of reservations to Backward Classes the population figures of BCs., gathered in the socio-economic survey conducted by the Andhra Pradesh Backward Classes Co-operative Finance Corporation Limited shall be the basis. Learned senior Counsel contended that the statutory duty and constitutional responsibility of providing reservations to Backward Classes cannot be reduced to a farce by making reservation only on the basis of population figures furnished by the said B.C. Finance Corporation. Learned senior Counsel submitted that the socio-economic survey conducted by the A.P. Backward Class Co-operative Finance Corporation has no statutory authority and as such on the basis of such population figures, determining reservations to BCs., cannot legally sustained and liable to be declared as unconstitutional.
15. It is lastly contended by the learned senior Counsel that the Special Full Bench of this Court in Fakruddin's case (supra), though deprecated the method of drawl of lots for providing reservations to Backward Classes candidates and held that the population figures of Backward Classes as ascertained by the BC Finance Corporation cannot form a basis for the determination of reservation of seats to Backward Classes and yet the State has not ascertained the population of the Backward Classes with an independent agency though after the judgment in Fakruddin's case (supra), the State had five years of time, before the second elections to Grain Panchayats are proposed. Learned senior Counsel submitted that making reservations to Backward Classes by drawl of lots and proposing to hold elections with the aid of that method this time also would amount to executive apathy to the judicial pronouncement and pleads to issue appropriate directions in the facts and circumstances of the case.
16. We have also heard other learned Counsel representing respective petitioners in other writ petitions, who have adopted the arguments of Sri S. Ramachandra Rao, learned senior Counsel appearing on behalf of the petitioners in WP Nos.17232 and 17501 of 2000.
17. On behalf of the State of Andhra Pradesh, learned Additional Advocate-General, while meeting the first contention raised on behalf of the writ petitioners, viz., Article 243-D(6) of the Constitution of India is opposed to the basic structure theory, submitted that Clause (6) of Article 243-D of the Constitution of India is not violative of Articles 14 and 15 of the Constitution of India. Learned Additional Advocate-General stated that all the benefits which have been extended to SCs./STs., cannot be extended to the Backward Classes. The Constitution has prescribed special provisions in favour of SCs./STs. and has mandated that reservations in their favour be provided as nearly as may be in proportion to their population, however, there is no such constitutional requirement insofar as reservations in favour of the BCs., are concerned. According to him, when there is a specific provision under Article 243-D(1)(2)(3) of the Constitution which mandates reservations in Panchayats in favour of SCs./STs., as nearly as may be, in proportion to their population, but Article 243-D(6) merely enables the Legislature to make provisions of reservations in seats in Panchayats in favour of BCs. Therefore, there is no constitutional requirement to reserve a particular percentage of seats in favour of Backward Classes. Learned Additional Advocate-General stated that though under the A.P. Panchayat Raj Act, 1994 a particular percentage of reservations is provided in favour of Backward Classes, but, it cannot be equated to a constitutional mandate nor can the Backward Classes be held to be substantially similar to SCs./STs. Learned Additional Advocate-General, therefore, submitted that the question of discrimination between the Backward Classes on one hand and SCs./STs., on the other hand does not arise nor does the contentions of the petitioners that Article 243-D(6) violates Articles 14 and 15 have any basis. Since there is no violation of equality clause guaranteed under Articles 14 and 15 of the Constitution, learned Additional Advocate-General submitted, the provisions under Article 243-D(6) of the Constitution of India are not opposed to the basic structure theory. In support of his submissions, learned Additional Advocate General referred to us the decisions of the Supreme Court in Ajit Singh and others v. State of Punjab and others, , State Bank of India Scheduled Caste/Tribe Employees Welfare Association v. State Bank of India, and in Ajit Singh and others v. State of Punjab, (2000)1 SC 430.
18. Coming to the second contention advanced on behalf of the writ petitioners that the State Election Commission has abdicated its powers and functions, learned Additional Advocate-General submitted that the powers and duties of the State Election Commission are defined under Article 243-K of the Constitution. According to him, the Government has created a machinery and vested the powers in the Commissioner of Panchayat Raj who is required to identify and reserve the seats for SCs./STs. and BCs. In accordance with the scheme of the Act, the Commissioner and the designated officers are taking steps to identify the Gram Panchayats etc., and therefore, there is no substance in the contention that the Election Commission has abdicated its duties and functions. It is also submitted that the work relating to reservation and identification of Gram Panchayats is beyond the powers of the State Election Commission. In support of his submissions, learned Additional Advocate-General took us to the decisions of the Supreme Court in A.C. Jose v. Sivam Pillai and others, and in Mohinder Singh Gill v. The Chief Election Commissioner, .
19. Insofar as the third contention advanced on behalf of the petitioners is concerned, it is argued by the learned Additional Advocate-General that Section 3 of the A.P. Gram Panchayat Raj Act, 1994 empowers the Commissioner to declare a village. Though under Part IX of the Constitution, it is provided that the power to declare a village vests with the Governor, Section 2(8) of the A.P. Panchayat Raj Act defines Commissioner to mean any officer who is authorised by the Government to exercise any of the powers or discharge any of the duties of the Commissioner under the Act. Learned Additional Advocate-General stated in exercise of powers conferred under clause 8 of Section 2 of the A.P. Panchayat Raj Act, the Governor of Andhra Pradesh has authorised certain officers to exercise and discharge the powers and duties of the Commissioner for the purposes of the Act under G.O. Ms. No.73, dated 4-2-1995. It is further stated that any action taken in exercise of the executive powers of the State vests in the Governor under Article 154(1) of the Constitution and is taken by the Government of the State in the name of the Governor as provided under Article 166(1) of the Constitution. According to the learned Additional Advocate-General, the functions under Article 243-G of the Constitution are to be exercised by the Governor with the aid and advice of his Council of Ministers. When the Constitution itself equates the Governor to the State Government for the purpose of relevant functions, Article 243(g) which gives the Governor the power to declare a village, in effect gives the said power to the State Government. Learned Additional Advocate-General, therefore, submitted that Section 3 of the Act cannot be said to be either inconsistent or contrary to Article 243(g) of the Constitution. It is further submitted that the contention of the petitioners that Section 4 of the Act is contrary to Article 243(b) and (d) of the Constitution is also without any basis. Article 243(d) defines Panchayat to mean an institution of self-governance constituted under Article 243-B for rural areas. Likewise, Article 243-B provides that there shall be constituted in every State Panchayats in village, intermediate and District level in accordance with the provisions in Part-IX of the Constitution. Learned Additional Advocate-General, therefore, stated that the attack on Sections 3 and 4 of the Act are untenabale. He further submitted that the power vested in the Commissioner under Section 9 of the Act to reserve seats for SCs./STs. and BCs., is subject to the rules as may be prescribed. Accordingly, Section 2(30) of the Act prescribes to mean "prescribed by the Government by rules made under the Act. In exercise of the powers conferred under Section 9 of A.P. Panchayat Raj Act the Governor of A.P. made the A.P. Panchayat Raj (Reservation of Seats of Ward Members and Offices of Sarpanchas of Gram Panchayats) Rules, 1995 and the same was notified in G.O. Ms No.285, PR & RD & R (Elec.III) Department, dated 20-5-1995. While Article 243-D(6) enables the Legislature of the State to make provision for reservation of seats in the Panchayat or Offices of Chairpersons in the Panchayats at any level in favour of BCs., Article 243-D(6) does not require the Legislature to make a provision for reservation only by way of Legislation. The constitutional requirement of a Law to be made only by Legislative bodies is found in Article 243-M(4)(b), Article 341(2) etc. The provision of reservation in favour of BCs., is by way of rules made by the Government in exercise of the powers conferred by the A.P. Panchayat Raj Act. The provision for reservation of BCs., in the rules notified in G.O. Ms. No.285 does not amount to excessive delegation and therefore, is legal and valid.
20. Learned Additional Advocate-General submitted that the controversy with regard to of notifying a village by the Government instead of Governor is no longer res Integra and this aspect has been squarely decided by the Supreme Court in State of Uttar Pradesh v. Pradhan Sangh Kshettra Samiti, .
21. Supporting the contentions advanced by the learned Additional Advocate-General on behalf of the State of Andhra Pradesh, Sri A. Ramalingeswara Rao, learned Counsel appearing on behalf of the implead-petitioners in WPMP Nos.22960 and 24350 of 2000 submitted that though the writ petitioners have challenged the provisions under Article 243(1)(B) and Section 202-A of the A.P. Panchayat Raj Act, such challenge is unsustainable inasmuch as, Counsel contended, to seek striking down a constitutional provision, two tests are to be satisfied, viz., (1) lack of legislative competence; and (2) such provisions are violative of Part II of the Constitution. In support of his contentions, learned Counsel placed reliance on a decision of the Supreme Court reported in State of A.P. v. Mc Dowell & Co., , Counsel, therefore, submitted that as the impugned provisions are not violative of Part II of the Constitution and the Legislature has the competence to enact them, the contention of the petitioners in this regard is liable to be rejected.
22. It is submitted by the learned Additional Advocate-General that the Census conducted by the Census Department, Government of India, once in a decade does not contain information relating the population of the Backward Classes. In order to ascertain BC population for providing certain percentage of reservations, the Government ordered socio-economic survey to be conducted through the Backward Classes Co-operative Finance Corporation from the year 1981-82 in a phased manner. Accordingly, the survey conducted by the Backward Classes Finance Corporation spread over to several years and enumeration of Backward Classes in various Districts in the State was carried out in a phased manner from the year 1981-82 to 1987-88. Inasmuch as in the year 1981 the census figures relating to SCs./STs., was available in the Census report published by the Government of India, the Backward Classes population figures was projected to 1-3-1981. On the basis of the general population figures of 1971-81 census was available, the compound annual growth rate for each of the 22 districts for the period 1971-81 was worked out and a formula was prepared for working out the growth rate of the Backward Class population. According to the learned Additional Advocate General, the respective general population, compound growth rate arrived for the District and each of the municipalities for the period 1971-81 have been used for projecting the Backward Class population backward from the respective survey date to common i.e., 1-3-1981. Since the population figures of SCs/STs was available on 1-3-1991 and since the 1991 census did not provide any information relating to Backward Classes, the Backward Class population figures were projected to the reference date i.e., 1-3-1991 taking to decennial general population growth during the decade 1981-91. The learned Additional Advocate General submitted that though the population of the Backward Classes was roughly estimated at 38.8%, however, under the Panchayat Raj Act, 1994, a specific 34 per cent reservation was provided by the Government in favour of Backward Classes. The learned Additional Advocate-General denied the contention of the petitioners that the formula prescribed in Rule 4(ii) of G.O. Ms. No.285, Panchayat Raj and Rural Development dated 20-5-1995 is based on surmises and conjectures.
23. It is nextly submitted by the learned Additional Advocate-General that the Government vide Memo No.81725/Elections III/87-1 dated 23-10-1987 in pursuance of the directions of this Court in Satyanarayana Reddy's case (supra), decided to publish Backward Class population figures gathered in the socio-economic survey after giving an opportunity to the public and political parties to point out mistakes, if any committed in the survey undertaken by the A.P. Backward Classes Co-operative Finance Corporation Limited. It is, therefore, stated by the learned Additional Advocate-General that the deficiencies pointed out with regard to the population figures of the Backward Classes by this Court on earlier occasions were rectified by publication and as such, the attack on Section 202-A of the A.P. Panchayat Raj Act is unsustainable.
24. Coming to the last limb of the contentions advanced on behalf of the petitioners, learned Additional Advocate-General submitted that in the absence of the population of the Backward Classes being ascertained at Gram Panchayat level, the only course left open to the State to draw lots and make reservations in favour of Backward Classes as it is well settled law that it is for the authority concerned to adopt such approach and procedure as it thinks appropriate and so long as the approach adopted is fair and adequate, it is not liable to be interfered with.
25. Sri Nuty Rama Mohana Rao, learned Counsel appearing on behalf of the State Election Commission, submitted that the State Election Commission has been constituted for the purpose of conducting elections to the Panchayats and local bodies. For discharging the functions entrusted to the Election Commission, a provision has been made in clause (4) of Article 243(k) of the Constitution which enables the State Legislature to come up with law. Laying emphasis on this clause, learned Counsel submitted that this enabling provision empowers the State Legislature specifically to legislate with matters connected with the process of elections including preparation of electoral rolls to till the declaration of election results because what has been specified in clause (4) is with regard to all matters relating to and in connection with the elections to the panchayats. Counsel submitted that the power has been entrusted specifically to the State Legislature by the Constitution itself. While referring to the provisions of Article 324 and Article 243-K of the Constitution of India, Counsel submitted that Article 243-K is in pari materia with Article 324. Counsel, therefore, submitted that the contention of the petitioners that the election commission has abdicated its functions and responsibilities has no substance at all. He also referred to the decision of the Supreme Court in A.C. Jose's case (supra). Coming to the other contention of the petitioners that instead of the Governor constituting the villages and Gram Sabhas, the Commissioner and his subordinates are constituting the same which is wholly impermissible and runs contrary to the constitutional scheme, Counsel submitted that this issue is no longer res integra in view of the authoritative pronouncement of the Supreme Court in State of Uttar Pradesh's case (supra). Counsel submitted that the State Election Commission has no infrastructure to undertake the enumeration work of Backward Class population in the State and since no specific relief is claimed against the State Election Commission, the writ petitions are liable to be dismissed.
26. We have also heard Sri A. Satya Prasad and Sri Ramalingeswara Rao, Counsel appearing on behalf of the respective implead-petitioners who by and large endorsed the submissions advanced on behalf of the writ petitioners that in making reservations for the offices of Sarpanchas as well as the Ward members in favour of the members belonging to Backward Classes, large scale irregularities have crept in as a result of adoption of the method of drawal of lots, but however, both the Counsel submitted that on the ground of these irregularities, the election process cannot be stalled. Counsel, therefore, urged this Court to dismiss the writ petitions and direct the authorities to hold elections to the Gram Panchayats at the earliest.
In the light of the extensive submissions covering the gamut of pleadings, broadly analysing the issues raised before us, we formulate the following issues for consideration, viz., (1) Whether the judgment rendered by the Special Full Bench of this Court in Fakruddin v. State of A.P. Rep. By its Secretary, Panchayat Raj, , is binding on the State Government and if so, what are the consequences that flow therefrom?
(2) Whether the petitioners are justified in seeking to declare 243-D(6) of the Constitution of India as opposed to basic structure theory and violative of Articles 14 and 15 of the Constitution of India?
(3) Whether the allegations of the petitioners that the State Election Commission has abdicated its power to the Government authorities by permitting the Revenue Divisional Officers to identify the reservations and seats/ offices in favour of reserved categories, though such powers are to be exercised by the State Election Commission as envisaged in Article 243-K of the Constitution of India?
(4) Whether the Legislature is competent to authorise the State authorities to describe a village which power is though vested in the Governor for the purpose of Part IX of the Constitution of India and the Authority acting under Section 3 of the A.P. Panchayat Raj Act, 1994 is justified in delegating his powers to his subordinate authorities for achieving the object prescribed under Section 3 of the Act?; and whether the petitioners are justified in seeking to declare Section 9(1), (1-A), 15 and 202 and G.O. Ms. No.285 dated 20-5-1995 as unconstitutional and opposed to the scheme envisaged under Part IX of the Constitution of India?
(5) Whether the reservations made in favour of Backward Classes to the seats/offices in Gram Panchayats by following the method of drawl of lots is justifiable?
(6) To what relief?
We shall now proceed to examine the implication of the Special Full Bench decision of this Court in Fakruddin's case (supra), in the light of the submissions made by the parties.
28. It is submitted by Sri S. Ramachandra Rao, learned senior Counsel appearing on behalf of the writ petitioners that the Special Full Bench of this Court in Fakruddin's case (supra), while allowing the Batch of writ petitions by judgment dated 26-6-1995 pointed out certain irregularities and declared certain provisions of the A.P. Panchayat Raj Act, 1994 as unconstitutional, found fault with the working of the State Election Commission and issued certain further directions to the State Government as well as the State Election Commission. However, learned senior Counsel complained to this Court that the State authorities, without carrying out the directions issued by the Special Full Bench, are proceeding to hold elections to Gram Panchayats, and such an act, if permitted would amount to disobeying the judgment of the Special Full Bench in Fakruddin's case (supra), as the same is binding on the State Government and its authorities. Learned senior Counsel submitted that even though the decision of the Special Full Bench in Fakruddin's case (supra) is carried to the Supreme Court both by the State Government as well as the State Election Commission in Civil Appeal Nos.9345-9350/95, the Supreme Court by an order dated 8-4-1997 dismissed those appeals without assigning any reasons and as such it cannot be said that the Supreme Court has laid a ratio which has a binding effect on all as provided under Article 141 of the Constitution of India. It is further stated by the learned senior Counsel that if no reasons are assigned by the Supreme Court while dismissing any appeal, such a decision is not a binding law. Learned senior Counsel, therefore, submitted that the decision rendered by the Special Full Bench in Fakruddin's case (supra), has become final and the same has to be implemented in its letter and spirit. In support of his contentions, learned senior Counsel drew our attention to the decision of the Supreme Court in Union of India v. All India Services Pensioners Association, and in Indian Oil Corporation v. State of Bihar, AIR 1986 SC 1780.
29. On the contrary, the learned Additional Advocate General representing the State of Andhra Pradesh, contended that the Supreme Court examined the issue involved in Fakruddin's case (supra), in Civil Appeal Nos.9345-9350/95 and kept all the issues open and as such, the judgment of the Special Full Bench of this Court merged with the decision of the Supreme Court dated 8-4-1997 in Civil Appeal Nos.9345-9350/95. It is submitted by the learned Additional Advocate General that since the decision of the Special Full Bench in Fakruddin's case is merged with the decision of the Supreme Court dated 8-4-1997 in Civil Appeal Nos.9345-9350/95 and since the Supreme Court by the said order has kept all the issues open, the decision of the Special Full Bench in Fakruddin's case is no longer available and for all practical purposes, there is no decision to implement. In support of his contention that the decision of the Special Full Bench in Fakruddin's case (supra) merged with the order the Supreme Court dated 8-4-1997, learned Additional Advocate General took us to a decision of the Supreme Court in Kunhayammed and others v. State of Kerala and another, 2000 (5) Supreme 181.
30. In order to examine the merits of the contentions raised before us in this regard, at the cost of repetition, we shall again examine the decision of the Supreme Court in Civil Appeal Nos.9345-9350/95 dated 8-4-1997. It is noticed by us, as against the decision of the Special Full Bench dated 26-6-1995 in Fakruddin's case (supra), SLPs were preferred to the Supreme Court in SLP Nos.14407-14412/95. The Supreme Court by an order dated 28-7-1995 initially directed status quo relating to the operation of the judgment in Fakruddin's case (supra), but, however, clarified that the results would not be announced until further orders. Subsequently, on leave to appeal being granted, the matter was finally heard in Civil Appeal Nos.9345-9350/95 by the Supreme Court and by an order dated 18-10-1995, while reserving judgment in the said civil appeals, the Supreme Court passed the following order:
"Since the elections have already been held, there is urgency to complete the process of election. We, therefore, stay the operation of the impugned judgment of the High Court in toto. The net result would be results of the elections can be declared by the Election Commission. The parties may file their written submissions, if they so desire, within one week."
31. Later, the Supreme Court disposed of the Civil Appeal Nos.9345-9350/95 on 8-4-1997 with the following order:
"It is agreed that elections are over. The results have been declared. The successful candidates have taken the oath of office. In view of the subsequent events it is not proper for this Court to consider the matters in detail at this stage. It is open to the aggrieved parties, if so advised, to take appropriate proceedings before appropriate forum wherein all the questions raised herein can be raised. If any proceedings are initiated, the appropriate forum will decide the matter as expeditiously as possible unfettered by the judgment of the High Court. The appeals are dismissed accordingly."
32. It is now to be examined as to what is the implication of the order dated 8-4-1997 of the Supreme Court when it stated in the said order that "the matter need not be considered in detail at that stage and all the questions raised therein were kept open". Is it mean that the order passed by the Special Full Bench of this Court in Fakruddin's case (supra), merged with the order dated 8-4-1997 of the Supreme Court and the questions raised therein are all kept open for fresh adjudication or does it mean that no ratio is laid down by the Supreme Court but the judgment rendered by the Special Bench of this Court in Fakruddin's case (supra), in binding on the respondents.
33. In Kunhayammed and others v. State of Kerala (supra), the Supreme Court while discussing the implication of Article 136 relating to Special Leave to appeal, dismissal of special leave petitions and whether such dismissal of special leave petition would amount to merger and would it attract Article 141 of the Constitution. Examining various facets of contentions with reference to the doctrine of merger, the Supreme Court held thus :
"Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it thought it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the order granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court."
34. In this case, the Supreme Court initially granted leave and later heard the regular civil appeals and dismissed the said appeal by an order dated 8-4-1997 with certain observations. As held by the Supreme Court in the decision extracted above, whether the order is one of reversal or modification or dismissal affirming the order appealed against, it would make no difference and the order appealed against would necessarily merge in the order passed by the Supreme Court. The Supreme Court while dismissing Civil Appeal Nos.9345-9350/95 by an order dated 8-4-1997 stated in the said order thus:
"In view of the subsequent events, it is not proper for this Court to consider the matter in detail at this stage. It is open to the aggrieved parties if so advised, to take appropriate proceedings before the appropriate Forum wherein all questions raised herein can be raised. If any proceedings are initiated, the appropriate forum will decide the matter as expeditiously as possible unfettered by the judgment of the High Court."
35. In view of the law laid down by the Supreme Court in Kunhayammed's case (supra), we have no hesitation to say that the Supreme Court kept all the issues raised before the Special Full Bench of this Court in Fakruddin's case (supra), open for fresh adjudication and as such the decision of the Special Full Bench in Fakruddin's case (supra), merged with the order of the Supreme Court dated 8-4-1997 passed in Civil Appeal Nos.9345-9350/95 and thus the decision rendered by the Special Full Bench of this Court in Fakruddin's case (supra), is not available for implementation and is not binding on the respondents.
36. Coming to the connected issue raised on behalf of the writ petitioners that issuance of G.O. Ms. No.289, dated 13-9-2000 bringing amendment to G.O. Ms. No.755, dated 30-11-1994 is illegal inasmuch as G.O. Ms. No.755, dated 30-11-1994 has been declared ultra vires the Panchayat Raj Act and Article 243-k(1)(4) of the Constitution of India by the Special Full Bench in Fakruddin's case (supra), we see no merit in the said submission in the light of our discussion in the foregoing paragraphs. Since we have held that the decision of the Special Full Bench in Fakruddin's case (supra), merged with the order dated 8-4-1997 passed by the Supreme Court, all the issues raised therein are kept alive and as such, G.O. Ms.No.755 is kept alive and the amendment made by the State to the said G.O. by G.O. Ms. No.289, dated 13-9-2000 in our view, is just and proper and the challenge made in this regard is unsustainable.
37. Coming to the second issue as to whether Article 243-D (6) of the Constitution of India is opposed to the basic structure theory and violative of Articles 14 and 15 of the Constitution of India, Sri S. Ramachandra Rao, learned senior appearing on behalf of the petitioners, principally contended that providing a definite percentage of reservations to SCs./STs., in the Gram Panchayats under Article 243-D(1) and (2) of the Constitution and not providing such definite percentage of reservation to Backward Classes but giving discretion to the States under Article 243-D(6) for providing reservations to BCs., is unconstitutional and as such, Article 243-D(6) is opposed to the basic structure theory. We do not think, the attack made in this behalf could be sustainable. It must be remembered that the historical background and the social fabric from which the members of the Scheduled Castes and Scheduled Tribes come from. Constitutional makers have visualised the paramount need for safeguarding the interests of the members of SCs./STs., and desired to bring them on par with the other members of the society. In their endeavour to uplift these sections, the Constitutional makers thought it fit to provide reservations to SCs/STs at a particular percentage not only in public employment but also in elected offices.
38. Opting for a Democratic System of Governance, the First Prime Minister of India, late Pandit Jawaharlal Nehru had remarked, "merely accepting a Government to be democratic may not sub-serve the expectations of the society. Democracy would be meaningful when tears from every weeping eye is wiped out. It may not be possible to wipe out all tears at once, but that has to be done within a definite period. An effort, therefore, was made under Article 330 of the Constitution which provides for reservations to Scheduled Castes and Scheduled Tribes in the House of People. Unlike a specific provision of favour of SCs./STs., under Article 330 of the Constitution, there is no specific provision under the Constitution providing reservations in favour of Backward Classes in political Offices. However, under Article 15(4) of the Constitution, the States are given powers to make special provisions for the advancement of any socially and educationally backward class citizens or for SCs./STs.
39. Through the 73rd Constitutional Amendment, under Article 243-D(6) of the Constitution, discretion is given to the State Governments for providing reservations to Backward Classes in Gram Panchayats whereas Article 243(1) and (2) mandates a specific percentage of reservations to be provided for SCs./STs., as far as possible, in proportion to their population in that area. The State of Andhra Pradesh, in tune with the provisions under Article 243-D(6) of the Constitution, in the A.P. Panchayat Raj Act, 1994 under Section 9-A, 34 per cent of reservations in favour of Backward Classes is provided in local bodies. However, in the absence of any constitutional requirement to provide specific percentage of seats for BCs., also in political offices, it cannot be said, there is a discrimination between BCs., on one hand and SCs./STs., on the other nor Article 243-D(6) violates Articles 14 and 15 of the Constitution. Since there is no violation of equality clause guaranteed under Articles 14 and 15 of the Constitution of India, the provision under Article 243-D(6) of the Constitution cannot also be said to be opposed to the basic structure theory and the members of the Backward Classes cannot be equated to SCs./ STs. and therefore, the plea in this regard advanced on behalf of the petitioners is rejected.
40. Coming to the third issue which relates to the powers and functions of the State Election Commission, it is necessary for us to examine the powers and functions of the State Election Commission as provided under Article 243-K of the Constitution of India.
41. Article 243-K of the Constitution of India provides for superintendence, direction and control of the preparation of electoral rolls for and the conduct of all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. While under Article 234-K(1), the powers and functions of the State Election Commission are enumerated, under Article 243-K(4), it is further provided "Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats". This is an enabling provision under which the State Legislature has been empowered by law to make provisions with respect to all matters relating to and in connection with elections to Panchayats. For holding elections to the Parliament and State Legislature, similar powers are vested in the Election Commission of India under Article 324 of the Constitution. Under Article 327, the Constitution empowers the Parliament to make provisions with respect to elections to Legislature and provides thus: "Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses". The provisions under Article 243-K(4) are in pari materia with Article 327 of the Constitution of India. From a plain reading of the provisions under Article 243-K(1) and 243-K(4) of the Constitution of India, it would not appear to us that the State Election Commission is vested with all the powers including identifying the Gram Panchayats, providing reservations to various offices/ seats etc. The State Legislature having been empowered under Article 243-K(4) to make certain provisions with regard to holding of elections to local bodies, while legislating the A.P. Panchayat Raj Act, 1994, through Sections 3 and 9 authorised the Commissioner for declaration of a village for the purpose of this Act and to determine seats to be reserved for various categories. The allegation of the petitioners that identification and reservation of panchayats to various categories are to be made only by the State Election Commission, seems to be an inappropriate submission. Inasmuch as if we are to accept such submission, it would amount to vesting powers in the State Election Commission which is not authorized either by the Constitution or by the State Legislature.
42. The issue relating to the powers and functions of the Election Commission as provided under Article 324 of the Constitution of India fell for consideration before the Supreme Court on umpteen occasions. Notably, in A.C. Jose's case (supra), the Supreme Court summarising the ambit and power of the Election Commission, at para 25 held thus:
"To sum up, therefore, the legal and constitutional position is as follows:
(a) when there is no Parliamentary Legislation or rule made under the said Legislation, the Commission is free to pass any orders in respect of the conduct of elections;
(b) where there is an Act and express Rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. In other words, the powers of the Commission are meant to supplement rather than supplant the law (both statute and Rules) in the matter of superintendence, direction and control as provided by Article 324;
(c) where the Act or the Rules are silent, the Commission has no doubt plenary powers under Article 324 to give any direction in respect of the conduct of election; and
(d) where a particular direction by the Commission is submitted to the Government for approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the Government is not given."
Thus, it is clear, when the Parliament or the State Legislature make a valid law relating to or in connection with the elections, the Election Commission shall act in conformity with it and not in violation of such provision. But where such law is absent, the Election Commission is sufficiently clothed with the powers to achieve the purpose of holding fair elections expeditiously.
43. As discussed above, the State Government has created a machinery and vested the powers in such machinery under Sections 3 and 9 of the A.P. Panchayat Raj Act not only to declare a village for the purposes of the Act by notification but also to identify the Gram Panchayats and to reserve seats for SCs./STs. and BCs. The acts of the Commissioner, Panchayat Raj is in tune with the provisions under Article 243-K(4) of the Constitution of India. It is, therefore, difficult for us to accept that the State Election Commission has abdicated its powers insofar as it relates to identification and providing reservations to various categories in Gram Panchayats. This issue is accordingly decided.
44. Coming to the fourth issue which relates to the power exercised by the Governor and identification of constituencies by the Commissioner and the competence of the State authority to describe a village and providing reservations on the basis of the population figures furnished by the BC Finance Corporation as provided under Section 202-A of the Act, Section 3 of the Panchayat Raj Act, 1994 empowers the Commissioner to declare a village, though under Part IX of the Constitution, the power to declare a village vests with the Governor. Section 2(8) of the Act defines Commissioner to mean an officer who is authorised by the Government to exercise any of the powers and to discharge any of the duties of the Commissioner under the Act. In exercise of powers conferred under clause (8) of Section 2 of the Act, the Governor of Andhra Pradesh has authorised certain officers to exercise and discharge the powers and duties of the Commissioner for the purpose of this Act under G.O. Ms. No.73, dated 4-2-1995. The executive powers of the State shall vest in the Governor under Article 154(1) of the Constitution and all executive actions of the Government of a State are taken in the name of the Governor as provided under Article 166(1) of the Constitution of India. The functions under Article 243(g) of the Constitution are to be exercised by the Governor with the aid and advice of his Council of Ministers.
When the Constitution itself equates the Governor to the State Government for the purpose of relevant functions, Article 243(g) which gives the Governor the power to declare a village, in effect gives the said power to the State Government. In this view of the matter, we are convinced that Section 3 of the Act cannot be said to be either inconsistent or contrary to Article 243(g) of the Constitution. This issue is no more res integra in view of the decision of the Supreme Court in State of Uttar Pradesh's case (supra). In the said decision, the Supreme Court held "a village defined to mean a revenue village. Such definition cannot be said to have foreclosed the authority of Governor to specify a village by notification. Notification by Governor is in fact notification by the State Government. Any enactment of State Legislature is a higher form of legal instrument than notification. Such a definition does not fall foul of Article 243(g). Conferment of power on State Government to declare village is not inconsistent with Article 243(g) as the Constitution itself equates the Governor with the State Government."
45. Coming to the other facet of dispute with regard to Sections 9, 9(1), (1-A) and 15, which deal with making reservations to SCs./STs. and BCs., in local bodies, these provisions cannot be said to be opposed to the constitutional scheme envisaged in Part IX of the Constitution of India. On the contrary, these provisions are in fulfilment of the constitutional scheme as discussed by us in the foregoing paragraphs on issue No.2. As far as Section 202-A of the Act is concerned, this is an enabling provision in the Act, which permits the Government to make reservations in favour of Backward Classes for the offices of Sarpanchas, President, Chairman and Members of the Gram Panchayat, Mandal Parishad and Zilla Parishad on the basis of the population figures gathered in the socio-economic survey conducted by the A.P. Backward Class Finance Corporation Limited. Since the population figures of BCs., have not been determined and in the absence of enumeration of BC population, it would be difficult for the State Government to make reservations in favour of BCs., in tune with Section 9(1) of the Act. Therefore, the only course left to the Government for providing reservations at 34% to BCs., is on the basis of the population figures of BCs., gathered in the socio-economic survey conducted by the said BC Corporation. Though this Court in Satyanarayana Reddy's case (supra), has found fault with the procedure of making reservations on the basis of the population figures of BCs., provided by the said BC Corporation, but, however, permitted the State Government to publish the BC population figures and seek objections, if any, from the aggrieved parties. Pursuant to the directions of this Court in Satyanarayana Reddy's case (supra), the Government issued instructions for getting the provisional list of BC population figures published inviting objections. Thereafter, the final population figures were published on 15-12-1987. When certain constitutional provisions of an Act are sought to be struck down as being unconstitutional, the party seeking such relief must satisfy two tests, viz., (1) there is lack of legislative competence in enacting those provisions; and (2) such provisions are violative of Part II of the Constitution of India. This view is well settled in State of Andhra Pradesh v. Mc.Dowell's case (supra). However, the petitioners in the instant case have not been able to satisfy the two tests. As we have elaborately discussed about the provisions engrafted under Sections 3, 9(1), 15 and 202-A of the A.P. Panchayat Raj Act, and the powers of the Government in issuing G.O. Ms. No.285, dated 20-5-1995 and Memo dated 4-2-1995 in the foregoing paragraphs, we hold that the scheme envisaged under these provisions and the rules framed by the Government from time to time are not opposed to the Constitutional Scheme as envisaged under Part IX of the Constitution of India. This issue is decided accordingly.
46. That takes us to the last and vexatious issue Nos.5 and 6, which are inter-related. In order to examine these issues, we must necessarily examine the historical necessity for providing reservations to various sections in political offices also. Petitioners' principal objection is not on the question of providing reservations to the members of Backward Classes in Gram Panchayats but their objection is the manner in which the reservations are made by drawl of lots.
47. Democracy is a system of Government chosen by us. Holding of elections is one of the facets of democratic system. Article 40 of the Constitution empowered the State to make village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as a units of self-Government. Experience showed that local self Government or Gram Sabha which the constitutional makers have visualised was not achieved for various reasons which necessitated in bringing the 73rd Constitutional Amendment to the Constitution in the year 1992. The object of such an amendment is to rejuvenate and revitalise the Panchayat System and achieve the dream of Gram Swaraj. Self-Governance being the objective, a fixed term of office is provided to the members and separate machinery was also created for holding elections to these bodies through the said Amendment. Apart from these two steps, providing reservations not only for SCs./ STs., but also to Women and BCs., is also envisaged in the 73rd Constitutional Amendment. The activities to be undertaken by the local bodies are also enumerated under Parts XI and XII of the Schedule.
48. The deepest aspiration of the people is to live in dignity in conducive political and social environment where they could rule themselves. In order to meet this aspiration of "Socially Backwards" and in tune with the objective of 'social justice', reservations are provided to SCs./STs., BCs. and Women in the local bodies. The scheme under Part IX of the Constitution is in fact intended to achieve this object.
49. As far as reservations to SCs./STs., are concerned, as their population figures are available as per 1991 Census, reservations to them are provided in proportionate to their population as far as possible. However, insofar as reservations to BCs., in local bodies are concered, Article 243-D(6) gives discretion to the respective Sate Governments to provide reservations in their favour. The State Government under the new A.P. Panchayat Raj Act, 1994, has provided 34% of reservations to the Backward Classes in local bodies. Elections are proposed to be held for nearly 22,000 Grain Panchayats in the State of Andhra Pradesh out of which nearly 7000 Gram Panchayats are to be reserved for BCs.
50. "The Andhra Pradesh Panchayat Raj (Reservation of Seats of Ward Members and Offices of Sarpanchas of Gram Panchayats) Rules, 1995 are issued in G.O. Ms. No.285, P.R., R.D. and R (Elec. III) Department, dated 20-5-1995. Under Rule 9 of the said Rules, reservation of offices for SCs./STs., BCs. and women shall be made by rotation as far as practicable commencing from the first ordinary elections to be held under the A.P. Panchayat Raj Act, 1994. Under this rule, it is desired that reservations to be made for these categories for various seats and offices as far as possible on rotation basis. As discussed, insofar as SCs./STs., are concerned, as their population figures are available as per 1991 Census, reservations to them are made on the basis of such figures. However, as no population figures in respect of BCs., are available, the population figures of BCs., gathered by the A.P. Backward Class Finance Corporation in the socio-economic survey conducted by it from the years 1981-87, were taken as the basis for providing reservation of 34% to BCs., in the local bodies.
51. It is true, reservation of seats/offices made in favour of Backward Classes in local bodies, by drawl of lots, may not be conducive and permissible. It is also true, on two occasions, this Court in Satyanarayana Reddy's case (supra) and in Fakruddin's case (supra), disapproved the method of allotting seats to BCs., in local bodies by drawl of lots. While pointing out the deficiencies hghlighted by this Court in the said two decisions, when we enquired with the Additional Advocate General who represented the State Government, as to why the population figures of BCs., were not ascertained, the learned Additional Advocate General is not able to convincingly explain the reasons for not ascertaining the population of BCs., which could be the basis for providing reservations to them in the local bodies.
52. Neither the petitioners nor the implead-petitioners arc opposed to providing reservations to the Backward Classes in local bodies. But, however, the objection of the petitioners is that such reservations shall be made in favour of BCs., in local bodies after ascertaining the population of Backward Classes. It is urged that when once the population of BCs., in each Gram Panchayat is ascertained, reservations to BCs., could be made in descending manner, by rotation as far as possible. Counsel appearing on behalf of respective parties contended, reservations so made by drawl of lots in favour of BCs., has caused a lot of heart-burning to non-BCs. It is also contended, this could have been avoided, had the State Government taken steps to ascertain the BC population.
53. During the course of hearing the writ petitions, learned Counsel appearing on behalf of the writ petitioners as welt as the Counsel appearing on behalf of the implead-petitioners have found fault with the method adopted by the State Government for reserving the seats in favour of BCs., in local bodies by drawl of lots. It is submitted on behalf of the petitioners that without curing the defects pointed out by this Court on earlier occasions, if elections are held to Gram Panchayats, it would defeat the very object for which reservations are made.
54. During the course of hearing the writ petitions, we directed the learned Additional Advocate General to place all the records relating to providing reservations in favour BCs., in order to know the gravity of discrepancy arising out of such method being followed for making reservations in favour of BCs. Pursuant to our direction, voluminous records are placed before us. We have also spent considerable time along with the Counsel appearing on behalf of the parties and tried to find out the gravity of the situation. We also noticed the Counsel appearing on behalf of the implead-petitioners agreeing to the submissions made by the learned senior Counsel on behalf of the petitioners that the defects in reserving seats to BCs., in local bodies on drawl of lots are glaring. We have also noticed several irregularities in the making of reservations to BCs., by drawl of lots. For instance, in few Gram Panchayats, though not a single voter belonging BC community if found, yet such Gram Panchayat is reserved in favour of BCs. Likewise, we have also noticed glaring defects in the reservations made in favour of SCs./STs., and vice-versa. Taking these factors into consideration and in order to find a solution to this issue, we invited the learned Counsel appearing on behalf of the writ petitioners and the Counsel appearing on behalf of the implead-petitioners to suggest ways and means to rectify the deficiencies as far as possible paving way for holding early elections to Gram Panchayats. This was done by us keeping in view, a similar contention was raised during the 1995 elections and the special Full Bench of this Court in Fakruddin's case finding fault with the procedure followed, for making reservations in favour of BCs., by drawl of lots and yet no effort is made to cure these defects so far.
55. Various proposals are put forth by the learned Counsel appearing on behalf of the writ petitioners as well as the Counsel appearing on behalf of the implead petitioners during the course of hearing the writ petitions. One of the proposals put forth is to direct the State Government to immediately go for enumeration of BC population throughout the State and then make reservations on the basis of the population figures ascertained in each Gram Panchayat, in descending order and on rotation basis as far as possible. The second proposal put forth before us across the Bar is that from out of the voter-list made ready for holding the present elections to the Gram Panchayats, the BC voters are to be identified from each Gram Panachayat and on the basis of such identification, reservations to BCs., could be provided in descending order and on rotation basis.
56. The above two proposals were discussed at length across the Bar.
57. As far as the first proposal that a direction could be issued to the State Government for enumeration of population of BCs., throughout the State and then make 34% reservations in their favour in descending manner, we do not think, this proposal could be adopted at this point of time. The population in the State of Andhra Pradesh, we are told, is about eight crores. The BC Finance Corporation which went into collecting the BC population figures in the State has taken nearly six years i.e., from 1981-87 and roughly estimated the BC population figures to be around 38% in the year 1987. If the State Government is directed to enumerate the BC population at this point of time, it would be a Herculean task and such a work, in all probability, would take few years. We cannot postpone holding of elections to Gram Panchayats for an indefinite period. Therefore, this proposal seems to us not feasible at this juncture and we are not persuaded to take recourse to such a proposal.
58. The alternative proposal that has emerged as a consensus proposal is - to identify the Backward Class voters from the available voter list of every Gram Panchayat, and on such identification, seats in Gram Panchayats could be reserved in favour of BCs., in descending manner, by rotation. We have given our anxious consideration to this proposal. Since this proposal seems to be consensus proposal of all the parties and appears to be more pragmatic and feasible, we are persuaded to examine this proposal judiciously.
59. In order to enable us to examine the second proposal, before issuing appropriate directions, we directed the learned Additional Advocate General of the State of Andhra Pradesh to ascertain from the Government as to the time and expenditure that would be involved for identifying the BC voters from the voters list available in each Gram Panchayat. Pursuant to our direction, two affidavits are filed before us, one on 30-10-2000, the other on 17-11-2000, which are sworn in by Shri I.V.R. Krishna Rao, Secretary to Government, Panchayat Raj Department. According to the first affidavit, the State Government has indicated that for completing the process of identifying the BC voters from among the available voters of each Gram Panchayat, a minimum period of 3 and half months time would be required. It is further indicated that atleast a lakh of enumerators have to be engaged for this process and even on a conservative estimate, the cost involved would be around Rs.10 crores. In the second affidavit filed on 17-11-2000, the Secretary to the Government, Panchayat Raj Department has further clarified that as a result of the direction issued by the Director of Census Operations through letter dated 17-8-2000 and 23-8-2000 requesting the State Government not to conduct any survey or hold any local body elections till the enumeration of decennial Census of 2001 is over, it would be difficult for the State authorities to get the enumeration of BCs., done before March, 2001.
60. In view of the affidavits filed by the Secretary to Government, Panchayat Raj Department, indicating the probable time that is required and the financial implication involved, two courses are open to this Court, viz., either to reject the contentions raised in this writ petitions and direct the State Government to hold the elections to Gram Panchayats forthwith ignoring the deficiencies pointed out in this regard; or to direct the State authorities to identify the BC voters from among the voters list of each Gram Panchayat and on the basis of such identification, reserve seats to BCs., in Gram Panachayats, in descending order and on rotation basis as far as possible.
61. The question is whether reservations made in favour of BCs., by drawal of lots could at. all be permissible and if so, under what circumstances. Drawal of lots could be a devise adopted to resolve a controversy when there are equal number of votes from different groups. In the system of democracy, rule of law is the governing force and is supreme. However, can rule of law be ignored? It shall always be remembered, reservations are made to fulfil the aspirations of such sections of people where they can live in dignity in a conducive political environment where they could rule themselves. By making reservations either in favour of Backward Classes or for that matter in favour of any category through drawl of lots, the object of reservations would be defeated. The Constitutional scheme cannot be made to appear like a mere ritual. The benefits must, as far as possible, reach to those sections for whom they are intended to.
62. On two earlier occasions, this Court has deprecated the method of reserving seats in favour of BCs., by drawal of lots. The State Government was required to rectify those defects by ascertaining the population of BCs. Ignoring this, if elections are to be proceeded with on the basis of reservations made in favour of BCs., in Gram Panchayats by drawal of lots, without hesitation, it could be said, the purpose of providing reservations is defeated. When the avowed object of providing reservations in political offices in favour of BCs., is sought to be diluted, in our view, efforts could be made to find out ways and means to resolve the controversy. Had the State Government made efforts to ascertain the population of BCs., as desired by this Court in Satyanaryana Reddy's case (supra) and in Fakruddin 's case (supra) this issue would not have surfaced again for judicial scrutiny.
63. In the light of our discussion, we hold, providing reservations by drawal of lots is not acceptable to a system governed by Rule of Law.
64. The next question would be what is the relief that could be granted in the these writ petitions. As discussed, we are not only called upon to examine the legal implications but also to examine the practicality of holding elections to Gram Panchayats.
65. Having regard to our discussion in the foregoing paragraphs, we are convinced, if the second proposal which emerged as a result of consensus of all the parties viz., to direct the State authorities to identify the BC., voters from the existing voters list of each Gram Panchayat and on the basis of such identification, reservations in favour of BCs., in Gram Panchayat could be made in descending manner as far as possible, seems to be a just and reasonable solution to settle the controversy with regard to this vexatious issue. The probable time and expenditure involved by the State authorities in this exercise has also been ascertained by us. In the latter affidavit filed on 17-11-2000, the State Government has also brought to our notice about the instructions issued by the Director of Census Operations about the commencement of there numeration work for 2001 Census in the State of Andhra Pradesh which would be completed before 15-3-200I. Then what could be the appropriate time that is to be given to the State Government for completing this process? Since the State Government has filed an affidavit before us indicating that the identification of BC voters from the voters list could be completed within a period of three and half months, and taking into account the enumeration work for 2001 Census which is in progress, the Government's inability to provide additional staff till 15-3-2001, we are of the view, in the facts and circumstances of the case, the State Government could be given about two and half months time from 16th March, 200] onwards for completing the task set by us. We accordingly, issue the following directions.
(1) The State Government shall take immediate steps to identify the Backward Class voters from the existing voter-list of each Gram Panchayat in the State of Andhra Pradesh prepared for the Gram Panchayat Elections, 2000 without regard to the Census work of the year 2001 which is in progress. On such identification of Backward Class voters from the existing voter-list, reserve the seats/offices in favour of Backward Classes according to rules in descending order and on rotation basis as far as possible;
(2) The State Government, after carrying out the process of reservations to be made in favour of various categories in the changed circumstances, as directed above, shall issue revised notification to that effect and intimate the same to the State Election Commission, Andhra Pradesh. This entire process shall be completed on or before 31-5-2001.
(3) On such particulars being furnished by the State Government to the State Election Commission, the State Election Commission shall proceed to hold elections to the Gram Panchayats in the State of Andhra Pradesh, forthwith by fixing necessary schedule.
66. We, however, make it clear that by identifying a particular voter to be belonging to Backward Class, shall not enure to the benefit of such voter to lay a legal claim to be a members of BC community. If the BC., voter so identified in the voter-list of a Gram Panchayat, desires to contest for any seat/office of Gram Panchayat reserved for Backward Classes, he/she shall have to necessarily fulfil the other requirements in support of his/her legal claim of social status.
67. The writ petitions are disposed of accordingly. No costs.