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2012 DIGILAW 747 (HP)

Prem Singh v. State of H. P.

2012-10-19

DEV DARSHAN SUD, KULDIP SINGH

body2012
Judgment Dev Darshan Sud,J. 1. These three petitions are being disposed of by a common judgment as they involve common questions of law as they seek to challenge delimitation/ reservation of Constituencies on various grounds on the pleadings before this Court 2. A number of submissions have been made by learned counsel on merits to demonstrate that the decision making process was (a) against the very foundation of the Constitution, (b) of the statutory mandate of the Delimitation Act, 2002 (hereinafter referred to as the `Act’). It is submitted that the Commission can only exercise powers as conferred upon it by the Act, within the limits of the Act itself and the Constitution of India. 3. It is undisputed before us that Notifications under Section 10(2) of the Act have been published. Learned Assistant Solicitor General Shri Sandeep Sharma submits that in this eventuality this Court has no jurisdiction to entertain the petition(s). He relies upon the decision of the Supreme Court in Association of Residents of Mhow (Rom) and Another vs. Delimitation Commission of India and Others, (2009)5 SCC 404 , wherein the Supreme Court considered the provisions of the Act holds:- “6. Section 8 deals with readjustment of number of seats. It says: "8. He relies upon the decision of the Supreme Court in Association of Residents of Mhow (Rom) and Another vs. Delimitation Commission of India and Others, (2009)5 SCC 404 , wherein the Supreme Court considered the provisions of the Act holds:- “6. Section 8 deals with readjustment of number of seats. It says: "8. Readjustment of number of seats.--The Commission shall, having regard to the provisions of Articles 81, 170, 330 and 332, and also, in relation to the Union territories, except National Capital Territory of Delhi, sections 3 and 39 of the Government of Union Territories Act, 1963 (20 of 1963) and in relation to the National Capital Territory of Delhi subclause (b) of clause (2) of article 239AA, by order, determine,-- (a) on the basis of the census figures as ascertained at the census held in the year 1971 and subject to the provisions of section 4, the number of seats in the House of the People to be allocated to each State and determine on the basis of the census figures as ascertained at the census held in the year 1[2001] the number of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State; and (b) on the basis of the census figures as ascertained at the census held in the year 1971 and subject to the provisions of section 4, the total number of seats to be assigned to the Legislative Assembly of each State and determine on the basis of the census figures as ascertained at the census held in the year 1[2001] the number of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State: Provided that the total number of seats assigned to the Legislative Assembly of any State under clause (b) shall be an integral multiple of the number of seats in the House of the People allocated to that State under clause (a). 7. Section 9 deals with delimitation of constituencies which is as under: "9. 7. Section 9 deals with delimitation of constituencies which is as under: "9. Delimitation of constituencies.- (1) The Commission shall, in the manner herein provided, then, distribute the seats in the House of the People allocated to each State and the seats assigned to the Legislative Assembly of each State as readjusted on the basis of 1971 census to single-member territorial constituencies and delimit them on the basis of the census figures as ascertained, at the census held in the year 1991, having regard to the provisions of the Constitution, the provisions of the Act specified in section 8 and the following provisions, namely:-- (a) all constituencies shall, as far as practicable, be geographically compact areas, and in delimiting them regard shall be had to physical features, existing boundaries of administrative units, facilities of communication and public convenience; (b) every assembly constituency shall be so delimited as to fall wholly within one parliamentary constituency; (c) constituencies in which seats are reserved for the Scheduled Castes shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total is comparatively large; and (d) constituencies in which seats are reserved for the Scheduled Tribes shall, as far as practicable, be located in areas where the proportion of their population to the total is the largest. (2) The Commission shall— (a) publish its proposals for the delimitation of constituencies, together with the dissenting proposals, if any, of any associate member who desires publication thereof, in the Gazette of India and in the Official Gazettes of all the States concerned and also in such other manner as it thinks fit; (b) specify a date on or after which the proposals shall be further considered by it; (c) consider all objections and suggestions which may have been received by it before the date so specified, and for the purpose of such consideration, hold one or more public sittings at such place or places in each State as it thinks fit; and (d) thereafter by one or more orders determine— (i) the delimitation of parliamentary constituencies; and (ii) the delimitation of assembly constituencies of each State.” Factual background 8. In the State of Madhya Pradesh there are 29 Parliamentary Constituencies and 230 Assembly Constituencies. In the State of Madhya Pradesh there are 29 Parliamentary Constituencies and 230 Assembly Constituencies. Out of these 29 Parliamentary Constituencies 27 have 8 Assembly Constituencies each and 2 Parliamentary Constituencies have 7 Assembly Constituencies each. 9. In pursuance of sub-section (2) of Section 9 of the Act, the Commission vide its Notification dated 19.1.2007 published its proposals for the delimitation of Parliamentary and Assembly Constituencies in the State of Madhya Pradesh. The Commission invited objections and suggestions in regard to its proposals to be submitted on or before 1.2.2007 after which date the proposals were to come up for further consideration by the Commission. Under the said proposals Dhar Parliamentary Constituency is shown consisting of 8 Assembly Constituencies including 203-Depalpur and the adjoining 26-Indore Parliamentary Constituency also had 8 Assembly Constituencies including 209-Mhow. The Commission upon considering the objections and suggestions finally determined the delimitation of both Dhar and Indore Parliamentary Constituencies. 31. The learned counsel for the appellants submitted that only such decision of the Commission determining delimitation of Constituencies after following the mandatory procedure under Section 9 (2) of the Act, if it is published, becomes a force of law and it cannot be questioned in any court. Thus, the protection under Section 10(2) of the Act as well as Article 329(a) is available only when the mandatory requirements of Section 9(2) are complied with by the Commission. In support of the submission reliance was placed on the decision of this Court in State of U.P. Vs. Pradhan Singh Khesttra Samiti, 1995 suppl. (2) SCC 305. 32. The decision in Pradhan upon which reliance has been placed by the learned counsel for the appellants in no manner supports the contention urged before us. On the other hand, this Court found the approach of the High Court to be objectionable for it had gone into the question of validity of the delimitation of the constituencies and also allotments of seats to such constituencies although clause (a) of Article 243-O of the Constitution enacts a bar on the interference by the courts in electoral matters. 33. In Pradhan Sangh said case, this court dealt with the provisions of Articles 243-C, 243 K and 243-O and the provisions of Panchayat Raj Act, 1947 and Section 9 of the Delimitation Act, 1950. It was observed: (SCC pp.331-332, para 45) "45. 33. In Pradhan Sangh said case, this court dealt with the provisions of Articles 243-C, 243 K and 243-O and the provisions of Panchayat Raj Act, 1947 and Section 9 of the Delimitation Act, 1950. It was observed: (SCC pp.331-332, para 45) "45. What is more objectionable in the approach of the High Court is that although clause (a) of Article 243-O of the Constitution enacts a bar on the interference by the courts in electoral matters including the questioning of the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be made under Article 243-K and the election to any panchayat, the High Court has gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them. We may, in this connection, refer to a decision of this Court in Meghraj Kothari v. Delimitation Commission, AIR 1967 SC 669 . In that case, a notification of the Delimitation Commission whereby a city which had been a general constituency was notified as reserved for the Scheduled Castes. This was challenged on the ground that the petitioner had a right to be a candidate for Parliament from the said constituency which had been taken away. This Court held that the impugned notification was a law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made under Article 327 of the Constitution, and that an examination of Sections 8 and 9 of the Delimitation Commission Act showed that the matters therein dealt with were not subject to the scrutiny of any court of law. There was a very good reason for such a provision because if the orders made under Sections 8 and 9 were not to be treated as final, the result would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court. Although an order under Section 8 or Section 9 of the Delimitation Commission Act and published under Section 10(1) of that Act is not part of an Act of Parliament, its effect is the same. Although an order under Section 8 or Section 9 of the Delimitation Commission Act and published under Section 10(1) of that Act is not part of an Act of Parliament, its effect is the same. Section 10(4) of that Act puts such an order in the same position as a law made by Parliament itself which could only be made by it under Article 327. If we read Articles 243-C, 243-K and 243-O in place of Article 327 and Sections 2(kk), 11-F and 12-BB of the Act in place of Sections 8 and 9 of the Delimitation Act, 1950, it will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged nor the court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. The High Court not only entertained the challenge but has also gone into the merits of the alleged grievances although the challenge was made after the notification for the election was issued on 31-8-1994." 34. It is true the observations made in Pradhan Sangh case "that neither the delimitation of the Panchayat area nor the constituencies in the said area and the allotments of seats to the constituencies could have been challenged nor the court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given" (SCC p.332, para45) may lend some support to the submission made by the learned counsel for the appellant that there could be a challenge in case where final determination of delimitation of constituencies was made without inviting any objections whatsoever. But that is not the ratio of the judgment. 35. This court in Pardhan was not considering any similar issue as the one that had arisen for our consideration in the present case. This Court did not take any view that the proposals in respect of each constituency shall have to be treated as an independent proposal and the Commission's power to determine delimitation of the constituencies is with reference to each constituency. This Court did not take any view that the proposals in respect of each constituency shall have to be treated as an independent proposal and the Commission's power to determine delimitation of the constituencies is with reference to each constituency. The objections and/or suggestions, as the case may be, are required to be taken into consideration treating the proposals as for whole of the State and delimitation of the constituencies with reference to a State as a Unit. 36. In Meghraj Kothari Vs. Delimitation Commission & Ors. (1967)1 SCR 400 , a Constitution Bench of this court while interpreting Sections 8, 9, and 10 of the Delimitation Commission Act, 1962 which are in pari materia with the provisions of the present Act, observed: (AIR p.675, paras 19-20) "19. In our view, therefore, the objection to the delimitation of constituencies could only be entertained by the Commission before the date specified. Once the orders made by the Commission under Sections 8 and 9 were published in the Gazette of India and in the official gazettes of the States concerned, these matters could no longer be reagitated in a court of law. There seems to be very good reason behind such a provision. If the orders made under Sections 8 and 9 were not to be treated as final, the effect would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court. Section 10(2) of the Act clearly demonstrates the intention of the Legislature that the orders under Sections 8 and 9 published under Section 10(1) were to be treated as law which was not to be questioned in any court. It is true that an order under Section 8 or 9 published under Section 10(1) is not part of an Act of Parliament, but its effect is to be the same." 37. The Constitution Bench went to the extent of saying that: (Meghraj Kothari case, AIR pp.674 & 677 paras 18 & 32) “18. An examination of Sections 8 and 9 of the Act shows that the matters therein dealt with were not to be subject to the scrutiny of any court of law… … … * * * * * * * * 32. ........... An examination of Sections 8 and 9 of the Act shows that the matters therein dealt with were not to be subject to the scrutiny of any court of law… … … * * * * * * * * 32. ........... The provision of Section 10(4) of the Act puts orders under Sections 8 and 9 as published under Section 10(1) in the same street as a law made by Parliament itself which....... could only be done under Article 327, and consequently the objection that the notification was not to be treated as law cannot be given effect to". CONCLUSION: 38. In the present case, the Commission finally determined the delimitation of Parliamentary Constituencies in the State of Madhya Pradesh after considering all objections and suggestions received by it before the specified date and got published its orders in the Gazette of India and in the Official Gazette of the State as is required under Section 10(1) of the Act. The orders so published puts them "in the same street as a law made by Parliament itself". Consequently that Notification is to be treated as law and required to be given effect to. 39. For all the aforesaid reasons, we find no merit in this appeal. The appeal shall accordingly stand dismissed with no order as to costs. (pp.407-409 & 414-416) 4. Learned counsel for the petitioners submit that this Court has jurisdiction to examine the decision making process as also to examine whether Constitutional/Statutory Body acts within the bounds of the powers so conferred on it by law. Submission made by learned counsel is that it is a constitutional duty of this Court to quash all such actions which exceeds constitutional and statutory limits of the powers conferred upon the statutory body. Learned counsel have inter alia relied upon the decisions in S.R. Bommai and Others vs. Union of India and Others, (1994)3 SCC 1 and L.Chandra Kumar vs. Union of India and Others, (1997)3 SCC 261 , in support of their contention. 5. We find that we can entertain these petitions, in view of the decision in Association of Residents of Mhow’s case (supra). On the question as to whether by not examining the decision making process as also the fact that the Commission has not acted in consonance with law, this Court has abandoned its mandatory and constitutional duty. 5. We find that we can entertain these petitions, in view of the decision in Association of Residents of Mhow’s case (supra). On the question as to whether by not examining the decision making process as also the fact that the Commission has not acted in consonance with law, this Court has abandoned its mandatory and constitutional duty. We leave it open to the petitioners to urge these points of fact and law in appropriate proceedings including appellate proceedings against this order, if any, in a Court of competent jurisdiction. Petitions dismissed. No order as to costs. All the miscellaneous applications are disposed of.