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2005 DIGILAW 72 (RAJ)

Hukma Ram v. State of Rajasthan

2005-01-10

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-In these writ petitions, the grievance of the petitioners is that the State is not following the procedure as provided under Rule 7 of the Rajasthan Panchayati Raj Election Rules, 1994 and wrongly allotted the seats in question to wrong category of candidates. 2. According to the petitioners, before election the authorised officer is supposed first to identify the wards or constituencies which consists of more than 5% population of the Scheduled Castes and such wards of constituencies are required to be serially arranged in the descending order of percentage of population of Scheduled Castes and are required to be assigned serial numbers as SC 1, SC 2 and so on. These serial numbers are called as special serial numbers for Scheduled Castes. The authorised officer is further required to allocate the number of seats reserved for Scheduled Caste candidates serially to the wards bearing special serial numbers for the Scheduled Castes, further the seats for persons belonging to Scheduled Tribes after the seats having been determined. Serial numbers assigned under Sub-rule (4) of Rule 7 of the Rules of 1994 are known as special serial numbers for the Scheduled Tribes. In addition to above, further reservation is required for the backward classes. The reservation is also given to the women candidates in the reserved category. As per Sub-rule (12) of Rule 7, the list so prepared remains in force for succeeding general election elections upto the period as provided under Sub-clauses (1) and (ii) of Sub-rule (12) and it is required to be re-operated from the beginning after it is exhausted as provided under Sub-clause (iii) of Sub-rule (12). Sub-rule (13) provides exclusion of constituencies which were reserved on previous general election till the cycle is completed. 3. The petitioners grievance in sum and substance is that the constituencies which had more percentage of member of Scheduled Castes, either have been excluded and wrongly seat has been reserved for the candidate of Schedule Caste or woman or Scheduled Caste woman by the authorised officer. 4. 3. The petitioners grievance in sum and substance is that the constituencies which had more percentage of member of Scheduled Castes, either have been excluded and wrongly seat has been reserved for the candidate of Schedule Caste or woman or Scheduled Caste woman by the authorised officer. 4. According to the learned Counsel for the petitioner, the petitioners approached the Court immediately after the decision taken by the authorised officer and in case election will held according to the allocation of the seats then that will be in violation to the Rule 17 of the Rules of 1994 which has been framed to give effect to the mandate of the Constitution. Therefore, according to the learned Counsel for the petitioner is a case of violation of Constitutional provisions by the authorised officer and, therefore, the orders passed by the authorised officer desreves to be set aside. The learned Counsels for the petitioners, if no relief will be granted by this Court by exercising powers under Article 226 of the Constitution of India, the petitioners will be remedy-less despite the fact that the Constitution has provided specific provision for making reservation of the seats which includes recognition of the right of the petitioner to contest the election which stands denied by the arbitrary action of the authorised officer. It is submitted that in the cases where seat has been wrongly reserved, right to contest the election stands denied to right candidate. 5. The learned Additional Advocate General Shri N.M. Lodha appearing on behalf of the respondents, submitted brief replies in some of the writ petitions and raised preliminary objection. It is also submitted by the learned Counsel for the respondents that in view of the Judgment of the Honble Apex Court delivered in the case of Lakshmi Charan Sen & Ors. vs. A.K.M. Hassan Uzzaman, AIR 1985 SC 1233 and Anugrah Narain Singh & Anr. vs. State of U.P. & Ors., 1996 (6) SCC 303 , no relief can be granted to the petitioner, in view of the fact that as per the schedule, the election notification will be issued tomorrow, i.e., 11.01.2005 and as per Article 243-E, the duration of the Panchayat cannot be beyond five years and further the election is required to be completed before the expiry of the said period. According to the learned Counsel for the respondents, by any interim order or even if the petitioners succeed in the writ petitions, then the process of the allocation of the seats to the members of the Scheduled Castes, Scheduled Tribes and backward classes as well as for candidates of general classes will be required to be re-determined and that process cannot be completed now. It is further submitted that the Division Bench of this Court in the case of Pant Ram Bheel vs. State of Rajasthan & Ors., D.B. Civil Writ Petition No. 4099/2004 and other connected matters, decided on 20.10.2004, after considering the above referred Judgment s of the Honble Apex Court, refused to interfere in the process of election where the elections were imminent despite finding that the determination of the wards/seats as required to be made as per the latest census in terms of Sections 9, 11 and 13 of the Act of 1959, has not been made and dismissed the writ petitions filed by the various petitioners. 6. The learned Counsel for the respondents also pointed out that in the matter of elections for the municipalities in the Rajasthan, the State Government issued certain guidelines for reserving the seats for the Scheduled Castes, Scheduled Tribes and Scheduled Castes women etc. vide circular dated 22.08.2004. The authorised officer followed the same procedure which otherwise also justifies the decision of the authorised officer. In one of the cases, the learned Counsel for the respondents has shown a chart justifying the reservation of a constituency and submitted that the identical controversy was in the Writ Petition No. 3867/2004 and the procedure adopted by the authorised officer was found correct. 7. I considered the submissions of the learned Counsel for the parties. 8. It will be worthwhile to mention here that the list prepared as per Rule 7 is not a list which will exhaust with the election but it continues till it is exhausted by allotting reservation of the seats as provided under the various Clauses of Rule 7 of the Rules of 1994. 8. It will be worthwhile to mention here that the list prepared as per Rule 7 is not a list which will exhaust with the election but it continues till it is exhausted by allotting reservation of the seats as provided under the various Clauses of Rule 7 of the Rules of 1994. Assuming for the sake of argument that in view of the decisions referred above and relied upon by the learned Counsel for the respondents, no interim relief can be granted to the petitioner staying the election as the elections are imminent and it may have effect on the other constituencies and representatives of those constituencies may not get opportunities of hearing before allocation and re-allocation of the seats to the candidates of Scheduled Castes, Scheduled Tribes, women, backward and general candidates, still in view of the fact that the controversy is required to be decided so that the mandate of Constitution may be given effect in its full spirit and may not be left to the arbitrary decision of the authorised officers, leaving aggrieved persons remedy-less, the writ petition deserves to be admitted looking to the totality of the facts of the case. 9. Further, as per Rule 7 of the Rules of 1994, a list is required to be prepared and it is to be continued for succeeding elections and if on every occasion, the authorised officer will decide allocation of seats in contravention to the statutory provisions then on every occasion the aggrieved party will be remedy-less only on the ground that the elections cannot be postponed and, therefore, since no relief can be granted to the petitioner as by the time of the decisions of the writ petitions, the elections will be over, then the illegality which was for an election of a particular constituency and for a particular election, will continue for all the next elections. Therefore, also the writ petitions cannot be dismissed merely because no interim relief can be granted to the petitioner in the light of the decision of the this Court following the decisions of the Honble Apex Court. 10. In view of the above, the writ petitions are admitted for final hearing. Issue notice to the respondents. The writ petitions may be listed for final hearing immediately after the service of all the respondents. 11. 10. In view of the above, the writ petitions are admitted for final hearing. Issue notice to the respondents. The writ petitions may be listed for final hearing immediately after the service of all the respondents. 11. In view of the fact that the process of elections is about to start ( from tomorrow) and in view of the reason that the duration of the Panchayat cannot be beyond five years and elections are required to be completed within the duration of the Panchayat and in view of the fact that without impleading the election Commissioner and some more necessary parties, no relief can be granted staying the process of the election, therefore, it is not a fit case where any interim relief can be granted to the petitioners. Otherwise also, the balance of convenience also lies in favour of the proceedings with the election which will constitute the panchayats whereas by staying the process constitution of Panchayats may be adversely affected. In case stay in not granted, it may affect the election of one or more constituencies only and not the election of the entire Panchayats. 12. In view of the above, this Court is not inclined to grant any interim relief in favour of the petitioners and hence the stay petitions filed by the petitioners are dismissed.