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2003 DIGILAW 315 (JK)

Bansi Lal Bharti v. State Of J. &K.

2003-10-10

Y.P.NARGOTRA

body2003
(Oral) "Whether the High Court has power to issue a writ of mandamus under Article 226 of the Constitution of India, to the Legislature or to the Executive for amending an enactment"; is the question arising for consideration in this writ petition. 2. The petitioner in this case claims that he is President of "Anusuchit Jati Morcha (Bhartiya Janta Party), which is fighting for the cause of Scheduled castes and Backward Classes. The Legislatures of the State have enacted Jammu and Kashmir Municipal Corporation Act XXI of 2000, which received the assent of the Governor of Jammu and Kashmir on 14th November 2000 and on being published in the government Gazette has come into force. The Act defines the expression backward classes as follows: "Backward means such classes of citizens other than Scheduled Castes and Scheduled Tribes as may be identified and notified for the purpose of reservation of appointment or post in the services under the Government and similarly "Scheduled castes" shall have the same meaning as assigned to it in class 24 of Article 366 of Constitution of India." Section 10 of the Act provides: "Should the Government so feel expedient and necessary any unrepresented section of the society shall be considered for nomination by it which shall not exceed in aggregate more than five Councilors in addition to 75 seats." 3. The case of the petitioner is that in view of section 10, the reservation percentage of unrepresented section of the society comes to less than 7%. In the Act, no guidelines have been laid down to identify the section of the society which can be deemed to be unrepresented and, therefore, unbridled power has been given to the Government to nominate any person as a councilor in the Corporation. According to the petitioner, the reservation for Backward Classes would have also been made in the Act. The petitioner has further claimed that in view of Article 15 Sub-section 4 of the constitution of India which is applicable to the State of Jammu and Kashmir also, the State Legislature ought to have provided reservation for Backward Classes and Scheduled Castes. According to the petitioner, the reservation for Backward Classes would have also been made in the Act. The petitioner has further claimed that in view of Article 15 Sub-section 4 of the constitution of India which is applicable to the State of Jammu and Kashmir also, the State Legislature ought to have provided reservation for Backward Classes and Scheduled Castes. Therefore, the petitioner is praying for issuance of a writ of mandamus through this writ for directing the respondents-State to amend the Jammu and Kashmir Municipal Corporation Act 2000 for making provision for reservation of seats for Scheduled Castes and Backward Classes as the aforesaid classes have not been given representation in nominations under the aforementioned Act, as the reservation of five seats has only been kept for unrepresented sections of the Society as provided under section 10 of the Act. 4. Mr. D.K.Khajuria, learned counsel for the petitioner while submitting that this Court possesses the power under Article 226 of the Constitution of India to issue a writ of mandamus directing for the amendment of the Statute relies upon cases reported in AIR 2001 Rajesthan 258 and AIR 1998 Patna 75. 5. Per contra, Mr. S.C.Gupta, learned AAG, has argued that High Court possesses no power under Article 226 of the Constitution of India to issue a writ of mandamus directing for the amendment of the Statute. In support of his submission, he relies upon the case reported in AIR 1992 SC 1546. 6. I have heard learned counsel for the parties and given my considered thought to the respective submissions made by them. 7. Under the scheme of the Constitution, the Legislative powers for enacting an Act have been conferred upon the Parliament and the State Legislatures whereas the Supreme Court and High Courts have been empowered to test the validity of the Acts made by the Legislature. The Constitution or any other law does not confer any legislative power on the Judiciary independently and, therefore, in exercise of the judicial powers vested under Article 226 of the Constitution, no direction for legislating a law can be given by the Judiciary to the Legislature. In the case of State of Jammu and Kashmir v. A.R. Zaki & Ors., AIR 1992 SC 1546, it was held by their Lordships: "A writ of mandamus cannot be issued to the legislature to enact a particular legislation. In the case of State of Jammu and Kashmir v. A.R. Zaki & Ors., AIR 1992 SC 1546, it was held by their Lordships: "A writ of mandamus cannot be issued to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation. S.10 of the J&K Constitution, which is on the same lines as Art. 234 of the Constitution of India, vests in the Governor the power to make rules for appointments of persons other than the district judges to the Judicial Service of the State of J&K and for framing of such rules, the governor is required to consult the Commission and the High Court. This power to frame rules is legislative in nature. A writ of mandamus cannot, therefore, be issued directing the State Government to make the rules in accordance with the proposal made by the High Court." 8. The position of law, therefore, stands well settled that a writ of mandamus directing the State Government to make subordinate legislation cannot be issued and for the same reasoning a writ of mandamus directing the enactment of law to the legislature can also not be issued, being the sole prerogative of the legislature. The petitioner in the present case seeks the issuance of writ of mandamus directing the State to amend the provisions of Jammu and Kashmir Municipal Corporation Act. 2000. The amendment to the aforesaid enactment can be made only by way of legislation and, therefore, in view of the legal position governing the field, the Court is not empowered to issue such direction. 9. Learned counsel for the petitioner has placed strong reliance on the cases reported in AIR 2001 Raj. 358 and case reported in AIR 1988 Patna 75. Both these authorities are distinguishable and do not lay down the proposition that a High Court in exercise of powers under Article 226 of the constitution of India can issue a writ of mandamus directing the legislation of a law or an amendment. In AIR 2001 Raj. 358, The State of Rejesthan v. Dr. Vijay Kumar Agrawal & Anr., Person with disability (Equal opportunities Protection of Rights and full Participation) Act was in force. In AIR 2001 Raj. 358, The State of Rejesthan v. Dr. Vijay Kumar Agrawal & Anr., Person with disability (Equal opportunities Protection of Rights and full Participation) Act was in force. Section 39 of that Act requires all the Government Educational Institutions and other Educational Institutional receiving aid from the Government to reservation not less than 3% seats for the persons with disabilities. The writ petitioner in that case contended that it was incumbent upon the respondents (State of Rajesthan, University of Rajesthan and Convenor, Central PG Admission Board and Principal, SMS Medical College, Jaipur) to reserve at least 3% seats for physically handicapped persons but they were not doing so and, therefore, by a writ of mandamus, they be compelled to provide at least 3% reservation to Physically handicapped persons in the pre-PG Entrance Examination for admission to M.D/M.S/Diploma courses. The stand of the respondents was that pre-PG Examination and PG Courses in Medical sciences were governed by Ordinance 278-E and 278-G of the University of Rajesthan and there was no reservation provided to disabled persons in those Ordinances. It was further contended that Section 39 of the Act fell under the Chapter, which related to employment and did not apply to admission in the Post Graduate Courses and, therefore, the State was not obliged to provide reservation to disabled persons. Under these facts, their Lordships of the Rajesthan High Court held that: "It is true that S.39 of the Act directs the Government and Government aided educational institutions to reserve not less than 3 per cent seats for persons with disabilities. It is also true that the reservation have to be provided by framing rules of admission or amending the existing rules. But it is also true that the words `shall reserve leave nothing to the discretion of the Institutions and in that sense, they are a mandate to the Institutions, which cannot be flouted. The net result is that from 7-2-1996 when the Act was enforced and S.39 of the Act came into force, all the Government Educational institutions and Government aided institutions were under a legal duty to reserve not less than 3 per cent seats for persons with disabilities. That this has been not done from 1996 till 20-11-2000, shows that there was a gross dereliction of duty to follow the law on the part of the respondents in the writ petition. That this has been not done from 1996 till 20-11-2000, shows that there was a gross dereliction of duty to follow the law on the part of the respondents in the writ petition. Though reservation had to be provided by following the procedure of framing or amending the Rules, it does not mean that complaining that S.39 of the Act was not being followed by the respondents, could be frustrated by saying that the procedure was not amended by the University or the State Govt. and they had failed to discharge their duty under the law. The writ petitioner was within his rights to invoke the writ jurisdiction of this Court for redressal of his grievance that he was being put to loss because of respondents not following the provisions of S.39 of the Act and his case cannot be defeated only because the State Government and the University had not discharged their duty of amending the rules and Ordinances to bring them in conformity with S.39 of the Act which obliges the Govt. and Govt. aided institutions to reserve not less than 3 per cent seats for persons with disabilities. Rules or no rules, the learned Single Judge had jurisdiction to enforce S.39 of the Act by issuing a mandamus directing the authorities to give benefit of reservation as required under S.39 of the Act, to the writ petitioner. In this view of the matter, the writ petitioner was entitled to the relief granted to him by the learned single Judge." 10. In the above said Rajesthan authority (Supra), it is apparent that there was an Act of the legislature in force providing for reservation which was not being given effect to by the University. In the present case, the Act in issue does not contain any provision providing such kind of reservation which the petitioner is claiming should have been provided in the Act. The petitioner is simply seeking a direction for effecting amendment in the Act, which in my view, is beyond the judicial powers of this Court. The matter of amending the Act being legislative only in the nature, is within the exclusive power of the legislature. 11. The other case relied upon by the learned counsel for the petitioner has no application to the facts of this case at all. 12. The matter of amending the Act being legislative only in the nature, is within the exclusive power of the legislature. 11. The other case relied upon by the learned counsel for the petitioner has no application to the facts of this case at all. 12. In this view of the matter, the petitioner is not entitled to maintain this writ petition for seeking a writ of mandamus as prayed for. The petition is, therefore, without any merit and as such the same is dismissed.