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Rajasthan High Court · body

2019 DIGILAW 3076 (RAJ)

Dhapu Devi W/o Shri Jagdish v. State Of Rajasthan

2019-12-17

DINESH MEHTA

body2019
ORDER : 1. These writ petitions involve challenge to determination of wards of various Panchayat Samitis, vide order dated 29.11.2019, notified by the Collector in exercise of powers available to him under Rules 3 & 4 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter referred to as ‘the Rules of 1994’). 2. At the outset, objections with respect to maintainability of the present writ petitions before this Court (Single Bench), have been raised by the learned Additional Advocate General. As such, before entering into the merits of the rival contentions, this court deems it appropriate to decide the question of jurisdiction of this Court while sitting singly. 3. Learned Additional Advocate General, firstly submitted that since the impugned order dated 29.11.2019, issued by the District Collector, in exercise of the powers under sub-rule (4) of Rule 4 of the Rules of 1994 is legislative in nature, having regard to the order dated 10.03.2011 issued by the Chief Justice (on 28.02.2011) and subsequent clarification issued on 18.03.2011, the validity of such order, is required to be examined by a Division Bench. For the sake of ready reference, both the orders are being reproduced hereinfa: “Dated : 28.02.2011 Order It is hereby ordered that the cases challenging the vires of any act or statute or any order or rule or regulation made under any act or statute shall be heard by Division Bench. This order will be applicable at the principal Seat of judicature of Rajasthan at Jodhpur and Bench Jaipur.” *** “Dated : 18.03.2011 Order “In continuation to the earlier Order No.RHC/DR(J)/2011/ 286 dated 10.03.2011 regarding hearing of vires matters by Division Bench, it is hereby clarified that the word “any order” appearing in said order relates to “any order of legislative nature”. 4. To substantiate his argument aforesaid, Mr. Beniwal read sub-rule (4) of Rule 4 of the Rules of 1994 and argued that an order passed by the Collector in exercise of powers under sub-rule (4) of Rule 4 of the Rules of 1994 is required to be notified, which gives it a legislative colour and effect and hence, the same is required to be adjudicated by a Division Bench. 5. 5. Learned Additional Advocate General, further argued that in view of embargo contained under Article 243-O of the Constitution of India, the writ petition is not maintainable, inasmuch as the exercise done under sub-rule (4) of Rule 4 of the Rules of 1994 so also the impugned order dated 29.11.2019 tantamount to delimitation of constituencies and wards and thus, this Court cannot entertain the writ petitions. 6. Adverting to the arguments advanced by the learned Additional Advocate General with respect to maintainability of the present petitions, Mr. Moti Singh, Mr. Manish Patel and Mr. Rajat Dave, learned counsel appearing for the petitioners opposing such stand, submitted that the order dated 29.11.2019, passed by the Collector in exercise of powers under sub-rule (4) of Rule 4 of the Rules of 1994 is adjudicatory, and not legislative in nature. 7. It was emphasized that the expression used in sub-rule (4) of Rule 4 of the Rules of 1994 is “notified” and not “to be published in official gazette”. They added that mere use of expression “notified” does not make such order to be legislative, particularly when the order is required to be notified only at following three places (a, b & c) mentioned in sub-rule (4) of the Rules of 1994 and not in the official gazette : “(a) on the notice board of the office of District Election Officer (Panchayats) and the office of the Panchayat Samiti in respect of constituencies for Zila Parishad, (b) On the notice board of the District Election Officer (Panchayats) and the notice board of Panchayat Samiti and Panchayats in respect of constituencies of Panchayat Samiti, (c) On the notice board of the Panchayat and a conspicuous place in every village of the Panchayat in respect of wards.” 8. In light of above submissions learned counsel contended that the present writ petition is required to be heard by a Single Bench of this Court and not by Division Bench. 9. With respect to the maintainability of the present petitions in view of the embargo contained in Article 243-O, learned counsel appearing for the petitioners contended that in light of judgment rendered in the case of State of U. P. & Ors Vs. Pradhan Sangh Kshettra Samiti & Ors reported in 1995 Suppl. (2) SCC 305, particularly para No.45 thereof, duly followed by Division Bench of this Court in Bhupendra Pratap Sigh Rathore Vs. Pradhan Sangh Kshettra Samiti & Ors reported in 1995 Suppl. (2) SCC 305, particularly para No.45 thereof, duly followed by Division Bench of this Court in Bhupendra Pratap Sigh Rathore Vs. State of Rajasthan & Ors. reported in 2015 (2) WLC (Raj.) 607 in para No.25 & 26, this Court can entertain these writ petitions, of course within the limits prescribed by Hon’ble Supreme Court in paras No.45 & 46 of the judgment, in the case of State of U. P. & Ors. Vs. Pradhan Singh (supra). 10. Learned counsel for the petitioners contended that Article 243-O of the Constitution of India in express and unambiguous terms uses expression “law” and the order of the Collector impugned in the present writ petitions cannot be said to be a law. 11. It was also emphatically submitted that since notification regarding schedule of the election of Panchayats has not been issued so far, the Court can entertain the writ petitions and pronounce upon the correctness and validity of the order dated 29.11.2019 impugned in the present writ petitions. 12. In rejoinder, Mr. Beniwal, learned Additional Advocate General relying on a recent Division Bench judgment dated 13.12.2019 rendered in the case of Jai Singh Vs. State of Rajasthan & Ors. (DB Civil Writ Petition No.17993/2019), submitted that the Division Bench has refused to entertain all those writ petitions, which involved ground of lack of opportunity of hearing and the cases wherein the petitioners alleged that the notification inviting objections was not published, while taking into consideration the golden line prescribed by Hon’ble the Supreme Court in State of U. P. & Ors. Vs. Pradhan Sangh (supra) and this Court in Bhupendra Pratap Singh (supra). 13. Reliance was also placed on the judgment rendered in the case of Association of Mhow (ROM) & Anr. Vs. Delimitation Commission of India & Ors. reported in AIR 2019 SC 3278, to buttress his argument that the writ petitions cannot be entertained. 14. Heard. 15. Adverting to the first argument of learned Additional Advocate General, that the validity of the notification under challenge has to be adjudged by the Division Bench, this Court deems it appropriate to ascertain the meaning of the term “legislative” which is of significance in the present case. 16. 14. Heard. 15. Adverting to the first argument of learned Additional Advocate General, that the validity of the notification under challenge has to be adjudged by the Division Bench, this Court deems it appropriate to ascertain the meaning of the term “legislative” which is of significance in the present case. 16. The expression “legislative” means the act or process of enacting law by the State Government and/or delegates of the State Government in the matters relating to promulgation of Act or Rules and/or issuance of Notification etc in exercise of powers under such Act. 17. In the present case, by virtue of provisions contained in subrule (4) of Rule 4 of the Rules of 1994, the State Government has prescribed a mode/procedure of delimitation of wards and constituencies authorising the Collector to pass an order of formation of wards and constituencies in case of a Panchayat Samiti. Such order of the Collector passed after considering objections, is required to be notified on the notice board of the District Election Officer (Panchayats), the Panchayat Samiti and Panchayats in respect of constituencies for Panchayat Samiti; and on the notice board of the Panchayat and at a conspicuous place in every village of the Panchayat in respect of wards of the Panchayats. 18. Merely because the order is required to be notified, it cannot be said that such order amounts to a notification, required to be published in the official gazette. Expression “notify” means intimation. The same, in no case, can be construed to be a ‘notification’, having trapping of legislative act. 19. In view of the discussions aforesaid, this Court is of the firm view that the impugned order of the Collector passed in exercise of sub-rule (4) of Rule 4 of the Rules of 1994 is not legislative in nature and any challenge to such notification can be laid before a Single Bench of this Court. 20. 19. In view of the discussions aforesaid, this Court is of the firm view that the impugned order of the Collector passed in exercise of sub-rule (4) of Rule 4 of the Rules of 1994 is not legislative in nature and any challenge to such notification can be laid before a Single Bench of this Court. 20. So far as the other objection of learned Additional Advocate General with respect to the maintainability of writ petitions in the face of inhibition imposed by the Constitution of India in the form of Article 243-O of the Constitution of India is concerned, this Court is of the view that there is no impediment in hearing these petitions, firstly because the order dated 29.11.2019 is not a law, as held hereinabove and secondly because the elections have not been notified so far and because petitioners have alleged that no objections were invited and if invited, they were not in accordance with law. 21. My above referred view derives support from the judgment of Hon’ble the Supreme Court rendered in the case of State of U.P. & Ors. Vs. Pradhan Sangh Kshettra Samiti (supra) particularly paras No.45 thereof, in which, while holding that challenge to delimitation of wards is not maintainable, an exception has been carved out, relevant extracts whereof is being reproduced hereunder : “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 [ (1967) 1 SCR 400 : 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. We may, in this connection, refer to a decision of this Court in Meghraj Kothari v. Delimitation Commission [ (1967) 1 SCR 400 : 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. 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. 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.” 22. Following the judgment aforesaid, the Division Bench of this Court in the case of Bhupendra Pratap Singh Rathore Vs. State of Rajasthan & Ors (supra) in paras No.25 & 26 has held the writ petition to be maintainable in cases where objections were not invited while holding thus : “25. So far as the objection raised by counsel for petitioner that in the judgment cited by the Apex Court, as there was a clear prohibition of S.10(2) of the Delimitation Act, the writ petitions are maintainable as the Delimitation Act is not applicable in the facts & circumstances of the instant case. The objections raised is of no substance for the reason that under 73rd amendment to the Constitution, while introducing Part-IX bar to interference by courts in electoral matters u/Art.243-O(a) and corresponding amendments made in the Rajasthan Panchayati Raj Act, 1994 while functioning for delimitation/alteration of the Panchayati Raj Institutions are regulated in terms of S.101 of the Act, 1994 and at the same time, there is a bar to interference by courts in the matters relating to delimitation of constituencies and wards u/S.117 of the Act, 1994 and that being so, the principles laid down by the Apex Court are applicable in the facts & circumstances of the instant case and the gazette notification dt.05.11.2014 being a legislative act in nature and keeping in view the bar to interference in the matters relating to the delimitation of the constituencies u/Art.243-O(a) of the Constitution and so also S.117 of the Act, 1994, the submission made by the petitioner suffers lack of merit. 26. In our considered view, we find substance in the preliminary objections raised by the respondents which deserve worth acceptance and keeping in view the mandate of Art.243-O(a) of the Constitution read with S.117 of the Act, 1994, once a notification of delimitation of constituencies dt.05.11.2014 has been published in the official gazette u/S.101 of the Act, 1994, it has got the force of law and going by the effect of Art.243-O(a), interference by courts in respect of delimitation of constituencies is barred. Such is the importance of the said notification and the non-obstante clause therein is important and become operative.” 23. A reading of the para No.26, reproduced hereinabove, shows that the Division Bench has held that “formation of constituencies in the area or allotment of the seats in the constituencies is legislative in nature”, but the same is required to be understood in backdrop of the facts obtaining. Para No.4 of the said judgment, leaves no room for ambiguity that the notification dated 05.11.2014 published in the official gazette was a notification issued in exercise of powers under Section 9, 10 & 101; whereas in the present case, the order under consideration is, an order issued in exercise of power under sub-rule (4) of Rule 4 of the Rules of 1994 read with Section 13 of the Act of 1994. 24. Such being the position, this Court is of the firm opinion that the constitutional bar provided under Article 243-O of the Constitution of India does not desist this Court from examining the questions posed by the petitioners in the present writ petitions. 25. As such, the objections raised by learned Additional Advocate General, do not hold much ground. This Court has no hesitation in holding that the present writ petitions are maintainable. 26. Having held so, it would be appropriate to deal with the rival contentions, which I hereby do. SB Civil Writ Petitions No.18077/2019 & No.18488/2019 : 27. 25. As such, the objections raised by learned Additional Advocate General, do not hold much ground. This Court has no hesitation in holding that the present writ petitions are maintainable. 26. Having held so, it would be appropriate to deal with the rival contentions, which I hereby do. SB Civil Writ Petitions No.18077/2019 & No.18488/2019 : 27. It was contended by the learned counsel for the petitioners that by way of the notice dated 17.11.2019, issued under Rule 3 & 4 of the Rules of 1994 the objections were invited wherein Ward Nos.6, 7, 16 & 17 and the following wards were proposed with the corresponding revenue villages in the final notification dated 29.11.2019 issued by the District Collector (Annex.3) : Proposed (Vide Notice dated 17.11.2019) 6 nbZiMk f[kafp;ku nbZiMk f[kafp;ku 2397 9633 pkyh lsokyk 856 /kospk uxj 314 pkyh 1689 fluyh fluyh 2458 lqcn.M lsukbZ 1919 7 lqcn.M lqcn.M 2048 5677 egknso uxj 494 dkxukMk 520 mrslj mrslj 2029 exjklj 261 nknklj 325 16 Mksyh Mksyh 5163 7025 cq>koM 1063 dsjyk 795 17 >aoj >aoj 5648 11193 fuEcyh 431 MsyqEckukMk 1286 n.M 400 cMyk uxj 1056 jkMuxj 631 cMyk uxj dMqEck ukMk 986 dsjyh 755 Final (Vide Order/Publication dated 29.11.2019) 6 nbZiMk f[kafp;ku nbZiMk f[kafp;ku 7400 pkyh lsokyk pkyh fluyh fluyh 7 lqcn.M lqcn.M 7643 Ekgknso uxj LksukbZ us.kklj mrslj mrslj exjklj nknklj 16 Mksyh Mksyh 8311 cq>koM dsjyk >aoj MsyqEckukMk 17 >aoj >aoj 10543 fuEcyh <.M cMyk uxj cMyk uxj jkMuxj dMqEck ukMk dsjyh vthr uxj 28. A basic argument has been advanced by Mr. Moti Singh, learned counsel for the petitioner that without receiving any objections, the wards have been changed. It was also argued that the District Collector, the Officer authorised vide notification dated 30.10.2019, has neither decided the objections in accordance with law nor has he provided copy of such decision and straight-way published the order, without following mandatory process. 29. An argument with vehemence was also advanced that the District Collector was only required to send his comments and it is the State Government, which was required to decide the objections and publish notification under sub-rule (4) of Rule 4 of the Rules of 1994. 30. 29. An argument with vehemence was also advanced that the District Collector was only required to send his comments and it is the State Government, which was required to decide the objections and publish notification under sub-rule (4) of Rule 4 of the Rules of 1994. 30. Taking the Court through the facts of the case, learned counsel for the petitioner submitted that the notice was required to be affixed in the office of Panchayat Samiti, Dhawa, which had been formed by way of notification dated 15.11.2019 (published on 16.11.2019), whereas no such notice was affixed. 31. In response to arguments advanced by learned counsel for the petitioner, Mr. Beniwal, learned Additional Advocate General submitted that since the Panchayat Samiti, was formed by notification dated 15.11.2019 (published on 16.11.2019), there was no Office of such Panchayat Samiti, Dhawa, and thus it was not published at Dhawa, however, the same was affixed at the office of Panchayat Samiti, Luni and the respective Gram Panchayatas. Learned Additional Advocate General submitted that there is due compliance of mandate of law. 32. Pursuant to the direction of the Court, learned Additional Advocate General placed original record for perusal of this Court and with the help of the record, he made an endevour to satisfy that various objections were received and so far as wards No.6, 7, 16 & 17 are concerned, as many as three objections were received, which were considered appropriately and thereafter the final publication dated 29.11.2019 came to be issued/notified. 33. Upon perusal of the record, this Court finds that as many as three objections were received and the same have been dealt with at Point No.5, 8 & 10 of the table enclosed with communication dated 27.11.2019, sent by the Election Officer cum Sub-Divisional Officer, Luni 34. It is pertinent to note that the record brings to fore a rather strange fact : that the objections have been decided by the SDO, Luni cum Election Registration Officer, Luni and not by the Collector. It is pertinent to note that the record brings to fore a rather strange fact : that the objections have been decided by the SDO, Luni cum Election Registration Officer, Luni and not by the Collector. In this regard it will not be out of place to reproduce the communication dated 27.11.2019 : ^^jktLFkku ljdkj dk;kZy; fuokZpd jftLVªhdj.k inkf/kdkjh ¼130½ yw.kh fo/kkulHkk fuokZpu {ks= ,oa mi[k.M vf/kdkjh yw.kh Øekad %& fuokZ@130@yw.kh@2019@2048 fnukad %& 27-11-19 izsf"kr %& Jheku~ ftyk dyDVj ¼iapk;r½ tks/kiqjA fo”k; %& iapk;r lfefr /kok ,oa yw.kh ds okMksZa ds vkifRr;ksa dk fuLrkj.k ckcr~A egksn;] mi;qZDr fo”k;kUrxZr fuosnu gS fd vkids dk;kZy; ls izkIr iapk;r lfefr /kok ,oa yw.kh ds okMksZ ds vkifRr;ksa dk fuLrkj.k dj vko';d dk;Zokgh gsrq lknj izsf”kr gS A layXu %& mijksDrkuqlkj lgh @& ¼xksiky ifjgkj½ fuokZpd jftLVªhdj.k inkf/kdkjh ¼130½ yw.kh fo/kku lHkk fuokZpu {ks= ,oa mi[k.M vf/kdkjh yw.kh^^ 35. The objections have been decided by the SDO, whereas the notification dated 30.10.2019 enjoins upon the District Collector to decide objections. Relevant part of the same is being reproduced hereinfra : Hkkx 6 ¼x½ xzke iapk;r laca/kh foKfIr;ka vkfnA xzke fodkl ,oa iapk;rh jkt foHkkx ¼iapk;rh jkt foHkkx½ vf/klwpuk t;iqj] vDVwcj 30] 2019 la[;k ,Q&15 ¼92½ iajkfo@fof/k@okMksZa dk xBu@2019@2931 %& jktLFkku iapk;rh jkt vf/kfu;e] 1994 ¼1994 dk vf/kfu;e la[;k&13½ dh /kkjk&98 ds rgr iznRr 'kfDr;ksa dk iz;ksx djrs gq, jkT; ljdkj n+okjk jktLFkku iapk;rh jkt vf/kfu;e] 1994 dh /kkjk&12¼2½] 13¼2½ o 14¼2½ rFkk jktLFkku iapk;rh jkt ¼fuokZpuk½ fu;e] 1994 ds fu;e 3 o 4 ds rgr rFkk xzke iapk;r ds okMksZa ¼,dy lnL; fuokZpu {ks=ksa½ dk iquxZBu@iqulhZekadu@iqufuZ/kkZj.k ,oa izdk'ku djus gsrq lacaf/kr mi[k.M vf/kdkjh dks ,oa ftyk ifj"kn o iapk;r lfefr ds okMksZa ¼,dy lnL; fuokZpu {ks=ksa½ dk iquxZBu@iqulhZekadu@iqufuZ/kkZj.k ,oa izdk'ku djus gsrq lacaf/kr ftyk dysDVj dks vf/kd`r djrs gq, izkf/kd`r vf/kdkjh ?kksf"kr fd;k tkrk gS vkKk ls] ¼MkW- vk:"kh efyd½ fof'k"B 'kklu lfpo ,oa funs'kd^^ 36. Hence, admit. Issue notice. Issue notice of stay application also. 37. Mr. Beniwal, learned Additional Advocate accepts notice on behalf of the respondents. 38. Learned Additional Advocate General is directed to place on record all such relevant material, which has been placed for perusal of the Court. 39. Meanwhile, effect and operation of the publication dated 29.11.2019 in relation to Ward Nos.6, 7, 16 & 17 of the Panchayat Samiti, Dhawa shall remain stayed. SB Civil Writ Petition No.18088/2019 : 40. Heard. admit. Issue notice. 39. Meanwhile, effect and operation of the publication dated 29.11.2019 in relation to Ward Nos.6, 7, 16 & 17 of the Panchayat Samiti, Dhawa shall remain stayed. SB Civil Writ Petition No.18088/2019 : 40. Heard. admit. Issue notice. Issue notice of stay application also. 41. Mr. Beniwal, learned Additional Advocate accepts notice on behalf of the respondents. 42. Learned Additional Advocate General is directed to place on record all such relevant material, which has been placed for perusal of the Court. 43. Meanwhile, effect and operation of the publication dated 29.11.2019 in relation to Ward Nos.7, 10 & 11 of the Panchayat Samiti, Keru shall remain stayed. SB Civil Writ Petition No.18143/2019 : 44. Though there are various grounds raised in the present writ petition, but on perusal of the record, this Court finds that the petitioner’s objection has been decided by SDO, whereas the notification dated 30.10.2019 requires them to be decided by the District Collector. 45. Hence, admit. Issue notice. Issue notice of stay application also. 46. Mr. Beniwal, learned Additional Advocate accepts notice on behalf of the respondents. 47. Learned Additional Advocate General is directed to place on record all such relevant material, which has been placed for perusal of the Court. 48. Meanwhile, effect and operation of the publication dated 29.11.2019 in relation to Ward No.5 of the Panchayat Samiti, Lunishall remain stayed.