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1994 DIGILAW 204 (HP)

RAM KISHAN ROHAL v. STATE OF H. P.

1994-12-18

R.L.KHURANA, S.N.PHUKAN

body1994
JUDGMENT S. N. Phukan, C J.—In this writ petition filed under Article 226 of the Constitution, the writ petitioner has prayed for an appropriate writ for quashing the Resolution dated 31st October, 1995 passed by the Himachal Pradesh Vidhan Sabha and consequently the Notification dated 4th November, 1995 dissolving the Panchayats and the validity of section 125 of the Himachal Pradesh Panchayati Raj Act, 1994 (for short as the Act of 1994) has been challenged in respect of the reservation of posts of Chairmen in the Panchayats on the ground that it violates Article 14 of the Constitution. 2. The main grievance of the writ petitioner is that under the Himachal Pradesh Panchayati Raj Act, 1969 (for short as the Act of 1969), the elections were held to Gram Panchayats and the Panchayat Samitis in January 1992 and the term for the said Panchayats would expire in February J997, but these Panchayats were dissolved in pursuance of the Resolution passed by the Vidhan Sabha by Notification dated 4th November, 1995, before expiry of the said term. It has also been alleged that earlier there were only Gram Panchayats and Panchayat Samitis, but by the Act of 1994, another Panchayat, namely, Zila Parishads were constituted and these Panchayats could have been constituted by the election from the members of the then existing Panchayats without dissolving these Panchayats, 3. At the admission stage, we have heard the learned Counsel for the petitioner and the learned Advocate General and it was decided that the writ petition could be disposed of at the threshold. 4. It may be stated that by Notification dated 20th November, 1995 issued under Rule 32 of the Himachal Pradesh Panchayati Raj (Election) Rules, 1994, the election programme has been announced and as per the said programme, the last date for filing of the nomination papers for all the three Panchayats was 5th December, 1995, date of withdrawal of the nomination papers was 7th December, 1995 and the poll would take place from 18th to 22nd December, 1995. In other words, the election process has already started and on this ground, the writ petition is liable to be dismissed due to delay. In other words, the election process has already started and on this ground, the writ petition is liable to be dismissed due to delay. If the petitioner was aggrieved, he could have approached this Court immediately after the Panchayats were dissolved by Notification dated 4th November, 1995 According to the learned Counsel for the petitioner, a petition under Article 32 of the Constitution was moved before the Supreme Court, but it was dismissed giving liberty to approach this Court Even thereafter, there was a considerable delay in filing the present writ petition on the December, 1995. Though the learned Counsel for the petitioner is trying to explain the delay, but we are not satisfied. 5. However, as contentions have been raised before this Court, we, would like to deal with these contentions. 6. Article 243-N of the Constitution, inter alia, provides that notwithstanding anything in Part IX of the Constitution, any provision of any law relating to Panchayats in force in a State immediately before the commencement of the Constitution (Seventy-third Amendment) Act, 1992, which is inconsistent with the provisions of the said Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier According to the proviso to the said Article, all the Panchayats existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State., Thus, the power of the State Legislature to pass a Resolution dissolving the existing Panchayats is a Constitutional provision and, therefore, it cannot be disputed. 7. The learned Counsel for the petitioner has urged that the Resolution of the Himachal Pradesh Vidhan Sabha for dissolving the then existing Panchayats is only to give effect for creation of three tier system and the methodology for achieving the said purpose is violative of Article 14 of the Constitution and there is no nexus between the two purposes. 8. The Resolution dated 31st.October, 1995 of the Himachal Pradesh Vidhan Sabha is quoted below. 8. The Resolution dated 31st.October, 1995 of the Himachal Pradesh Vidhan Sabha is quoted below. This House resolves as per the provisions of Article 243 of Constitution of India read with section 200 (2) of Himachal Pradesh Panchayats Raj Act, 1994 that present Gram Panchayats and Panchayat Samitis are dissolved w. e. f. 10-11-1995 which had been constituted as per the Constitution (Seventy-third Amendment) Act, 1992, under Himachal Pradesh Panchayati Raj Act, 1968 which was enacted for constituting Gram Panchayat, Panchayat Samiti and Zila Parishad This House authorises the State Government to publish this resolution in the Gazette through the notification," 9. Chapter IX of the Constitution was inserted by the Constitutional Amendment Act, 1992 and thereafter Act of 1994 was enacted creating three tier Panchayats in the State. If the intention of the Legislature is to give effect to the mandate of the Legislature, as provided in the Act of 1994, this Court cannot interfere as it is a policy decision. Though the learned Counsel for the petitioner has urged that the Zila Parishad could have been constituted from the existing members of two tier Panchayats, we arc unable to accept the contention of the learned Counsel for the petitioner, as specific provisions have been made in the Act itself regarding the mode of election to Zila Parishad. We also do not find any arbitrariness in this regard inasmuch as for giving effect to the provisions of enactment, it cannot be said that there was any arbitrariness in dissolving the two Panchayats, so that people can choose their own representatives, which is very much necessary in our democratic set up As Notification dated 4tb November, 1995 dissolving the two Pauchayats in the State was a consequence of the said Resolution of the Assembly and in accordance with the proviso to Article 243-N of the Constitution, it cannot be said to be illegal. 10 Drawing our attention to Clause (2) of Article 243-E, the learned Counsel for the petitioner has urged that dissolution of the Panchayats for the purpose of implementing the Act of 1994 is unconstitutional. 10 Drawing our attention to Clause (2) of Article 243-E, the learned Counsel for the petitioner has urged that dissolution of the Panchayats for the purpose of implementing the Act of 1994 is unconstitutional. The said Clause runs as follows: "(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration of five years as specified in Clause (I) of the said Article 243-E." 11. From the perusal of the Act of 1994, more particularly, section 200, we have no hesitation in holding that the Act of 1994 is not an amendment of any existing law regarding the Panchayats In fact, by section 200 of the Act of 1994, the earlier Act of Himachal Pradesh Panchayati Raj Act, 1968 has been repealed. That apart, this section has to be read with Article 243-N of the Constitution, which empowers the Legislature to pass a Resolution dissolving the existing Panchayats. Therefore, the contention of the learned Counsel for the petitioner is rejected. 12. The learned Counsel has also urged that reservation of offices of Chair-persons in the Panchayats for Scheduled Castes, Scheduled Tribes and women is arbitrary inasmuch as according to the learned Counsel for the petitioner, such reservation comes to 134%. In this connection, the learned Counsel has urged that according to the law laid down by the apex Court, reservation can be made upto 50% and that such reservation cannot be made for elected posts, as there is no such reservation for the post of Chief Ministers etc. The learned Advocate General has urged that reservation of 50% is for the posts and that such reservation can be done as per Clause (4) of Article 243-D of the Constitution and in the said Clause, no limit has been fixed. Prima facie, we are satisfied that the contention of the learned Advocate General has got force. However, we keep this point open to be taken up at appropriate time if such a writ petition is filed and on this ground, we cannot disturb the election process, which has started and going to be completed soon, 13. Prima facie, we are satisfied that the contention of the learned Advocate General has got force. However, we keep this point open to be taken up at appropriate time if such a writ petition is filed and on this ground, we cannot disturb the election process, which has started and going to be completed soon, 13. In the course of our arguments, the learned Counsel for the petitioner has challenged the vires of Article 243-D (4) and also section 125 of the Act of 1994. This section of 125 of the Act of 1994 has been incorporated keeping in view the Constitutional provision as contained in Clause (4) of Article 243-D of the Constitution. Regarding Constitutional validity of the said Clause (4) of Article 243-D, nothing has been averred in the present writ petition. Therefore, as stated above, we leave this point open to decide in an appropriate case, if any such writ petition is filed. 14. For what has been stated above, we do not find any merit in the present writ petition and accordingly it is dismissed. Costs on the parties. Petition dismissed.