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2020 DIGILAW 287 (MP)

DIGVIJAY SINGH v. STATE OF M. P.

2020-02-24

AJAY KUMAR MITTAL, VIJAY KUMAR SHUKLA

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ORDER VIJAY KUMAR SHUKLA, J. – Regard being had to the similative of the matters as they involve common question of fact and law they are being decided by the common order. For the sake of convenience the facts are noted from W. P. No. 19538/2019 – Digvijay Singh vs. State of M. P. 2. These petitions are filed under Article 226 of the Constitution of India challenging the legality and validity of the final notification (Annexure P/1) passed by the respondent No. 2, Commissioner, Sagar Division, Sagar, whereby the 15 constituencies in respect of the Jila Panchayat have been formed. The said notification is mainly challenged on the ground that the Commissioner is not the competent authority as per the provisions of Rule 5 of the Madhya Pradesh Panchayat Nirvachan Niyam, 1995 (hereinafter referred as ‘Niyam 1995’) framed under the provisions of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred as ‘Adhiniyam, 1993’). 3. It is further urged that initially the objections were sought for formation of only 13 Constituencies and the petitioners did not have any objection regarding the formation of 13 Constituencies for Jila Panchayat and therefore, they did not file objection but when the number of 13 Constituencies was changed from 13 Constituencies to 15 Constituencies, the petitioners made representation but the same has neither been considered nor decided. 4. Counsel for the respondents raised preliminary objection regarding the maintainability of the petition on the ground that matter relates to delimitation, therefore, the petition cannot be entertained in view of the constitutional bar under Article 243-O of the Constitution of India and also placed reliance on the judgment passed by the Supreme Court in the case of State of U. P. vs. Pradhan Sangh Kshetra Samiti and others, reported in 1995 Suppl. (2) SCC 305. It was also argued that the Commissioner is the competent authority and the objections submitted in pursuant to the preliminary notification were considered by the Competent Authority. The procedure prescribed under the provisions of Adhiniyam, 1993 and the Niyam, 1995 have been followed. 5. We have heard learned counsel for the parties and perused the record. We do not find any merit in the writ petition with regard to the submission that Commissioner is not the Competent Authority and as per Rule 5 of Niyam, 1995, the Collector is the authority. 5. We have heard learned counsel for the parties and perused the record. We do not find any merit in the writ petition with regard to the submission that Commissioner is not the Competent Authority and as per Rule 5 of Niyam, 1995, the Collector is the authority. To appreciate the aforesaid submissions, it would be expedient to reproduce the provisions of section 30 of the Adhiniyam, 1993 which reads as under : – “30. Division of district into constituencies. – (1) Subject to the provisions of sub-section (2), the State Government shall by notification divide a district into such number of constituencies that each constituency shall have as far as practicable, a population of fifty thousand and every constituency shall be a single member constituency : Provided that where the population of a District is less than five lakhs, it shall be divided into not less than ten constituencies and the population of each constituency shall as far as practicable, be the same in each constituency : Provided further that the total number of constituencies shall not exceed thirty five. (2) The ratio between the population of the territorial area of the Zila Panchayat and number of constituencies in such Zila Panchayat area, shall, as far as practicable, be the same throughout the State. (3) (i) Seats shall be reserved for, – (a) the Scheduled Castes; and (b) the Scheduled Tribes, in every Zila Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in the Zila Panchayat as the population of the Scheduled Castes or the Scheduled Tribes in that Zila Panchayat area bears to the total population of that area and such seats may be allotted by the prescribed authority (x x x) to different constituencies in that Zila Panchayat in the prescribed manner : Provided that for the purpose of computing the number of scats to be reserved for Scheduled Tribes in the Zila Panchayat, other than the Scheduled Areas forming part of that district, the total population of the Scheduled Areas falling within that district and the population of Scheduled Tribes therein shall be excluded. (ii) In the Zila Panchayat where fifty per cent or less than fifty per cent seats have been reserved both for Scheduled Castes and Scheduled Tribes, twenty five per cent seats of the total number of seats shall be reserved for Other Backward Classes and such seats shall be allotted by rotation to different constituencies by the Collector, in the prescribed manner. (4) Not less than (half) of the total number of seats so reserved shall be reserved, for women belonging to the Scheduled Castes or, the Scheduled Tribes or Other Backward Classes, as the case may be. (5) Not less than (half) (including the number of seats reserved for women belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes) of the total number of seats to be filled by direct election of Zila Panchayat shall be reserved for women and seats may be allotted by the prescribed authority by drawing lots and by rotation to different constituencies in a Zila Panchayat in the prescribed manner. (x x x) (6) The constituencies which have no population of Scheduled Castes, Scheduled Tribes or Other Backward Classes shall be excluded for allotment of seats reserved for Scheduled Castes or Scheduled Tribes or Other Backward classes, as the case may be. 6. Under section 30 aforesaid, the power is vested with the State Government. Learned Advocate General has produced the copy of notification by which the power has been conferred by the State Government on the Commissioner. Thus, the Commissioner is the competent authority who is higher in rank than the Collector. Keeping in view the provisions of section 30 of the Adhiniyam, 1993, the Circular dated 22-6-2019 issued by the State Government has been placed on record as Annexure P/4 by which for Jila Panchayat, the Commissioner has been designated as the competent authority. 7. The State Government has filed the reply and submitted that after the initial preliminary notification, the corrigendum was issued with regard to delimitation of the Village Panchayat/Jila Panchayat. The objections were received and after consideration of the objections, decision was taken by the competent authority in respect of Gram Panchayat. Copy of the decision and objections has been placed along with the return as Annexure R/3. The objections were received and after consideration of the objections, decision was taken by the competent authority in respect of Gram Panchayat. Copy of the decision and objections has been placed along with the return as Annexure R/3. The respondents have further stated that the action of the respondents regarding extension of Jila Panchayat wards is in consonance with the Clause 6.4 of the Circular dated 22-6-2019 which specifically provides that in a Jila Panchayat there can be minimum 10 wards and maximum 35 wards. The procedure prescribed under the Adhiniyam, 1993 and the Niyam, 1995 was strictly followed while issuing the final notification. The final notification was issued on 6-9-2019 which was published in format 4(B) in the Madhya Pradesh Gazette Notification dated 4-10-2019. It is contended that there is no procedural illegality in the power exercised by the respondents and there is no allegation of mala fides. 8. In view of the above, in our opinion the respondents have issued the preliminary notification and after inviting and considering the objections, the final notification had been issued in accordance with the procedure prescribed under the Adhiniyam, 1993 and Niyam, 1995. There is no allegation of mala fide and prejudice. 9. The issue raised in this petition has been decided by Hon’ble Supreme Court in State of U. P. and others vs. Pradhan Sangh Kshetra Samiti and others, (1995) Supp. 2 SCC 305 wherein it is held : “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 vs. Delimitation Commission, (1967) 1 SCR 400 . 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 vs. Delimitation Commission, (1967) 1 SCR 400 . 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 the 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 or 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 31st August, 1994.” 10. Similar challenge vide Public Interest Litigation came up for consideration in Pranay Gupta vs. State of M. P. and others, 2005(1) JLJ 295 wherein the relief was negatived. It was held by their Lordships : “22. To conclude, we have desisted from interfering in the matter in spite of the absurdity of notifications dated 3-7-2004 requiring objections to be filed by 8-7-2004, being published in the Gazette dated 9-7-2004, for the following reasons : (i) No resident of any of the villages/areas which are the subject-matter of the notifications under section 125(1) has challenged the notifications on the ground that he did not have notice of the proposals or on the ground that he did not have opportunity to file objections/suggestions. On the other hand several persons who had notice of the proposal on account of its display on the notice-boards of the Gram Panchayats and in conspicuous places of the affected areas, appear to have filed objections and those objections are stated to have been considered; (ii) The petitioner though espousing a public cause does not say nor in a position to assert that proposals were not published by affixture on the notice boards of the respective Gram Panchayats and in other conspicuous places, (iii) The Publication of the proposal by affixture at Gram Panchayat Notice Board and other conspicuous places, if properly done with sufficient time to file objections/suggestions, it would amount to substantial compliance in regard to the requirement of the publication; and (iv) the question whether there was such substantial compliance or not, in any given case, does not arise for our consideration in this Public Interest Litigation. The assumption of the petitioner that mere defect in publication of the proposals in the Gazette would be sufficient to nullify the entire process of effecting alterations under section 125(1) is however incorrect and baseless. The assumption of the petitioner that mere defect in publication of the proposals in the Gazette would be sufficient to nullify the entire process of effecting alterations under section 125(1) is however incorrect and baseless. There is, therefore, no need to direct re-initiation of the process of publication of proposal inviting objections/suggestions under the proviso to section 125(1), nor any ground to quash the notification under section 125(1), on the ground of defect in publication of the proposals in the Gazette.” 11. Therefore, till it is established that the objections were not invited and no hearing had been provided to the objectors, order of delimitation can not be interfered with, especially in the absence of any allegation of mala fide. However, in the case at hand, it is evident from cogent material document placed on record that before passing the impugned order, the Competent Authority had invited the objections and after taking decision thereon has issued the impugned notification. 12. In view whereof we do not perceive any illegality in passing the impugned order as would warrant an indulgence. 13. Consequently, petitions fails and are dismissed. No costs.