Gaurav v. The Additional Chief Secretary (Urban Development), Himachal Pradesh High Court, Judgment, Law, casemine.com

Precedent	Rule or Principle Cited For	Application by the Court
N.P. Ponnuswami Vs. Returning Officer, AIR 1952 SC 64	Recognition of inherent restriction on writ jurisdiction in election matters; election includes entire election process; no two attacks during election process and after by election petition.	Affirmed that election challenges during the process are barred under Article 243-O and 329; writ petitions cannot challenge nomination acceptance/rejection.
Meghraj Kothari Vs. Delimitation Commission, AIR 1967 SC 669	Finality of delimitation orders once published; such orders cannot be questioned in court to avoid indefinite election delays.	Used to support that delimitation and allotment of seats are final and not subject to court challenge post-notification.
Mohinder Singh Gill Vs. Chief Election Commissioner, (1978) 1 SCC 405	Bar on judicial interference during election process; distinction between steps facilitating election and those questioning it.	Confirmed that writ petitions challenging election steps like re-poll are barred; judicial review postponed until after election tribunal adjudication.
Nanhoo Mal Vs. Hira Mal, AIR 1975 SC 2140	Post-Ponnuswami, courts have limited scope to entertain election challenges under Article 226.	Supported the limited writ jurisdiction in election matters.
Sundarajas Kanyalal Bhathua Vs. Collector Thane, AIR 1990 SC 261	Delimitation of municipal areas is a legislative function; natural justice principles not applicable.	Reinforced legislative exclusivity over delimitation and restricted court interference.
State of U.P. Vs. Pradhan Sangh Kshettra Samiti, AIR 1995 SC 1512	Bar on court interference after notification of delimitation; challenge only maintainable before notification on procedural grounds.	Held that challenges to delimitation post-notification are barred; courts cannot entertain such petitions.
Anugrah Narain Singh & another Vs. State of U.P., (1996) 6 SCC 303	Bar on court interference under Article 243-ZG similar to 243-O; election process should not be stalled by judicial orders.	Emphasized that courts should not stop elections once underway; challenges must be timely and statutory.
Jaspal Singh Arora Vs. State of M.P., (1998) 9 SCC 594	Bar under Article 243-ZG applies to writ petitions challenging elections; election petitions are the exclusive remedy.	Set aside High Court orders that overlooked the bar; reinforced statutory election petition as sole remedy.
Election Commission of India Vs. Ashok Kumar and others, AIR 2000 SC 2977	Judicial review of election commission orders limited; courts should not postpone elections indefinitely.	Clarified the limited scope of writ petitions during election process and emphasized caution in judicial intervention.
Association of Residents of Mhow (Rom) Vs. Delimitation Commission of India, (2009) 5 SCC 404	Orders of delimitation commission once published are law under Article 327 and immune from court challenge under Article 329.	Dismissal of writ petition challenging delimitation notification upheld on bar grounds.
Angdui Norbu & others Vs. State of Himachal Pradesh & others, AIR 2012 HP 36	Election petition maintainable only on grounds prescribed under Section 175(1) of Panchayati Raj Act; bar under Article 243-O not attracted if no ground for election petition exists.	Clarified exceptions to bar on court interference; writ petitions maintainable where no statutory ground for election petition exists.
Prithvi Raj Vs. State Election Commission, AIR 2007 PH 178	Judicial review under Article 226 postponed until after election tribunal adjudication; bar on entertaining writ petitions once elections notified.	Held that High Court cannot entertain writ petitions challenging elections after notification; judicial review deferred.

ig h Co ur t o f H

. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 4366 of 2015 a/w CWP Nos.

4495,4167,4441, 4452, 4455, 4458, 4459,

4470, 4472, 4475, 4476, 4488, 4489, 4490,

4491, 4494, 4496, 4498, 4499, 4500, 4502,

4508, 4513, 4517, 4518, 4520, 4521, 4528,

4534, 4543, 4546, 4552, 4555, 4559, 4560,

4561, 4579, 4583, 4584, 4587, 4589, 4590,

4599, 4602, 4607, 4608, 4615, 4616, 4614,

4618, 4619, 4627, 4628 of 2015.

Judgment reserved on: 07.12.2015

Date of Decision : December 15, 2015.

1. CWP No. 4366 of 2015

Bal Krishan and others …Petitioners Versus

State of H.P. and others . …Respondents.

2. CWP No. 4495 of 2015

Suresh Patial …Petitioner Versus

State of H.P. and others . …Respondents.

3. CWP No. 4167 of 2015

Amar Singh and another …Petitioners Versus

State of H.P. and others . …Respondents.

4. CWP No. 4441 of 2015

Man Mohan Gupta …Petitioner Versus

State of H.P. and others . …Respondents.

5. CWP No. 4452 of 2015

Baldev Singh Thakur …Petitioner Versus

State of H.P. and others . …Respondents.

6. CWP No. 4455 of 2015

Piar Chand …Petitioner Versus

State of H.P. and others . …Respondents.

7. CWP No. 4458 of 2015

Ramesh Chand …Petitioner Versus

State of H.P. and others . …Respondents.

8. CWP No. 4459 of 2015

Jyoti …Petitioner Versus

State of H.P. and others . …Respondents.

9. CWP No. 4470 of 2015

Mohan Lal …Petitioner Versus

State of H.P. and others . …Respondents.

10. CWP No. 4472 of 2015

Rakesh Kumar …Petitioner Versus

State of H.P. and others . …Respondents.

11. CWP No. 4475 of 2015

Kamla Devi …Petitioner Versus

State of H.P. and others . …Respondents.

12. CWP No. 4476 of 2015

Deepak Kumar …Petitioner Versus

State of H.P. and others . …Respondents.

13. CWP No. 4488 of 2015

Balbir Singh …Petitioner Versus

State of H.P. and others . …Respondents.

14. CWP No. 4489 of 2015

Ram Parkash Patial and another …Petitioners Versus

State of H.P. and others . …Respondents.

15. CWP No. 4490 of 2015

Parvesh Chandel …Petitioner Versus

State of H.P. and others . …Respondents.

16. CWP No. 4491 of 2015

Kamal Dev …Petitioner Versus

State of H.P. and others . …Respondents.

17. CWP No. 4494 of 2015

Pawan Kumar Chandel …Petitioner Versus

State of H.P. and others . …Respondents.

18. CWP No. 4496 of 2015

Pawan Kumar …Petitioner Versus

State of H.P. and others . …Respondents.

19. CWP No. 4498 of 2015

Daulat Singh Thakur and another …Petitioners Versus

State of H.P. and others . …Respondents.

20. CWP No. 4499 of 2015

Shyam Lal …Petitioner Versus

State of H.P. and others . …Respondents.

21. CWP No. 4500 of 2015

Ramesh Chand …Petitioner Versus

State of H.P. and others . …Respondents.

22. CWP No. 4502 of 2015

Suman Kumar …Petitioner Versus

State of H.P. and others . …Respondents.

23. CWP No. 4508 of 2015

Dr. Sushant Deshta …Petitioner Versus

State of H.P. and others . …Respondents.

24. CWP No. 4513 of 2015

Krishan Dev Sharma …Petitioner

Versus State of H.P. and others . …Respondents.

25. CWP No. 4517 of 2015

Ramesh Bhau …Petitioner Versus

State of H.P. and others . …Respondents.

26. CWP No. 4518 of 2015

Gram Panchayat Khanyara …Petitioner Versus

State of H.P. and others . …Respondents.

27. CWP No. 4520 of 2015

Gram Panchayat Brahlari …Petitioner Versus

State of H.P. and others . …Respondents.

28. CWP No. 4521 of 2015

Dinesh Kumar …Petitioner Versus

State of H.P. and others . …Respondents.

29. CWP No. 4528 of 2015

Banarsi Dass …Petitioner Versus

State of H.P. and others . …Respondents.

30. CWP No. 4534 of 2015

Om Parkash Sharma …Petitioner Versus

State of H.P. and others . …Respondents.

31. CWP No. 4543 of 2015

Ashwani Kumar …Petitioner Versus

State of H.P. and others . …Respondents.

32. CWP No. 4546 of 2015

Prem Singh …Petitioner Versus

State of H.P. and others . …Respondents.

33. CWP No. 4552 of 2015

Man Dass …Petitioner Versus

State of H.P. and others . …Respondents.

34. CWP No. 4555 of 2015

Hirmu Devi …Petitioner Versus

State of H.P. and others . …Respondents.

35. CWP No. 4559 of 2015

Rajesh …Petitioner Versus

State of H.P. and others . …Respondents.

36. CWP No. 4560 of 2015

Kamal Nayan …Petitioner Versus

State of H.P. and others . …Respondents.

37. CWP No. 4561 of 2015

Geeta Ram …Petitioner Versus

State of H.P. and others . …Respondents.

38. CWP No. 4579 of 2015

Chain Singh …Petitioner Versus

State of H.P. and others . …Respondents.

39. CWP No. 4583 of 2015

Ramesh Thakur …Petitioner Versus

State of H.P. and others . …Respondents.

40. CWP No. 4584 of 2015

Ashwani Kumar …Petitioner Versus

State of H.P. and others . …Respondents.

41. CWP No. 4587 of 2015

Seema Devi and another …Petitioners

Versus State of H.P. and others . …Respondents.

42. CWP No. 4589 of 2015

Hari Singh Verma and another …Petitioners Versus

State of H.P. and others . …Respondents.

43. CWP No. 4590 of 2015

Balraj Singh …Petitioners Versus

State of H.P. and others . …Respondents.

44. CWP No. 4599 of 2015

Balvinder Singh …Petitioner Versus

State of H.P. and others . …Respondents.

45. CWP No. 4602 of 2015

Harish Chander Lucktoo …Petitioner Versus

State of H.P. and others . …Respondents.

46. CWP No. 4607 of 2015

Sher Singh and others …Petitioners Versus

State of H.P. and others . …Respondents.

47. CWP No. 4608 of 2015

Gram Panchayat Ustehad and others …Petitioners Versus

State of H.P. and others . …Respondents.

48. CWP No. 4614 of 2015

Gaurav …Petitioner Versus

The Addl. Chief Secretary (Urban Development) and others

. …Respondents.

49. CWP No. 4615 of 2015

Kuldeep Singh …Petitioner Versus

State of H.P. and others . …Respondents.

50. CWP No. 4616 of 2015

Shamshad Ali …Petitioner Versus

State of H.P. and others . …Respondents.

51. CWP No. 4618 of 2015

Pawan Kumar …Petitioner Versus

State of H.P. and others . …Respondents.

52. CWP No. 4619 of 2015

Col. Daulat Singh …Petitioner Versus

State of H.P. and others . …Respondents.

53. CWP No. 4627 of 2015

Ram Swaroop …Petitioner Versus

State of H.P. and others . …Respondents.

54. CWP No. 4628 of 2015

Santosh Kumar …Petitioner Versus

State of H.P. and others . …Respondents.

____________________________________________________________ Coram

The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? Yes.

For the petitioner(s) M/s R.K.Gautam, Bimal Gupta, B.C.Negi, Sanjeev Bhushan, Senior Advocates, with

M/s Gaurav Gautam, Vineet Vashisht,

Pranay Pratap Singh, Abhilasha Kaundal,

Rajiv Rai, Shikha Chauhan, Vinod Thakur,

Tara Singh Chauhan, Kulbhushan Khajuria,

Anand Sharma, Vikas Rathore, Praveen

Chandel, Vijay Kumar Arora, M. L. Sharma,

Ajay Sharma, Chetna Thakur, Sanjay Kumar

Sharma, Daleep Kumar Sharma, Subhash

Sharma, P. D. Nanda, S.C. Sharma, Sushil

Gautam, Onkar Jairath, Ravinder Singh

Jaswal, Surender Sharma, Ramakant

Sharma, Ashwani Sharma, Salochana Rana

Kaundal, Sanjeev Kumar Suri, Naresh Kaul, Ajay Kumar Dhiman, Raman Jamalta, Arush Matlotia and Ms. Suman Thakur, Advocates, for the respective petitioners. For the respondent(s) : Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan, Mr. Romesh Verma, Addl.

Advocate Generals and Mr. J. K. Verma, Dy.

Advocate General, for the respondents-

State.

Mr. Dilip Sharma, Senior Advocate, with Ms.

Nishi Goel, Advocate, for the State Election

Commission in CWP No. 4366 of 2015.

Ms. Nishi Goel, Advocate, for the State

Election Commission in all the cases.

Mr. Sandeep Sharma, Senior Advocate, with

Mr. Pankaj Negi, Advocate, for respondent

No. 6 in CWP No. 4518 of 2015.

Tarlok Singh Chauhan, Judge

In this batch of Writ Petitions, the petitioner(s) have called in question the constitution; re-constitution; delimitation; reservation of the respective Panchayat areas; merger of Panchayats with Municipal areas and vice versa; change of headquarters of Gram Panchayats; amalgamation and alteration of respective Panchayat areas, on the ground that such action has been taken by the respondents in violation to the Himachal Pradesh Panchayati Raj Act, 1994, Himachal Pradesh Panchayati Raj (Election) Rules, 1994, Himachal Pradesh Municipal Act, 1968 etc.

2. Learned Advocate General has raised a preliminary objection regarding the maintainability of these petitions, in view of the dates of the elections for the second phase having been duly notified, whereby the elections are to be conducted on 1^st, 3^rdand

5^thJanuary, 2016, save and except where the elections took place during the first phase and District Kangra, Pangi and Bharmour Block of Chamba where elections are due in June, 2016, where the elections have yet not been notified. The learned Advocate General in support of his submissions has relied upon the various provisions of the Constitution of India, more particularly Article 243- O to argue that since Article 243-O starts with non-obstante clause, therefore, the other provisions of the Constitution including Article 226 thereof will not apply to the subject matter covered by the aforesaid provisions and consequently, all these petitions are not maintainable.

3. On the other hand, the learned counsel for the petitioners would vehemently argue that the power of the judicial review as vests with this Court under Article 226 has not taken away even by Article 243-O, more particularly when the action of the respondents is in derogation and conflict and without following the procedure of the Act and Rules governing the same. We have heard learned counsel for the parties and have gone through the records of the case.

4. For the purpose of deciding whether the bar contained in Article 243-O operates against the power vested in the High Court under Article 226 of the Constitution of India to issue directions, orders or writs including writs in the nature of mandamus, prohibition, quo warranto and certiorari or any of them for the enforcement of any right conferred by part III of the

Constitution or for any other purpose, it will be useful to notice the relevant constitutional and legal provisions.

5. Part III of the Constitution contains various fundamental rights guaranteed to the citizens and other persons. Part IV enumerates the Directive Principles of State Policy. By virtue of Article 37, it has been declared that the provisions contained in Part IV are not enforceable by any Court, but the principles contained therein are fundamental in the governance of the country and it is the duty of the State to apply the same in making laws. Article 40, which forms part of the Directive Principles of State Policy, ordains the States to take steps to organize village Panchayats and endow them with powers and authority necessary to enable them to function as units of self-government. To achieve this goal, the legislature of State of Himachal Pradesh had enacted various laws including the Himachal Pradesh Gram Panchayat Act, 1968, The Himachal Pradesh Panchayati Raj (Election) Rules, 1971 and Himachal Pradesh Municipal Act, 1968. Likewise, the legislatures of all other States enacted similar legislations.

6. Thereafter, the Parliament enacted Constitution (Seventy-third Amendment) Act 1992 and Constitution (Seventy- fourth Amendment) Act, 1992 whereby Parts DC and IX-A were added to the Constitution. With these amendments, Panchayats and Municipal Bodies have been declared as units of self- Government. The provisions contained in these two parts are of far reaching significance. The same are intended to make the

Panchayats and Municipal Bodies fully autonomous partners in the governance of the nation.

7. Article 243(d) defines the term "Panchayat", as an institution of self-Government constituted under Article 243-B of the rural areas. Article 243-B provides for constitution of Panchayats. Article 243-C relates to composition of Panchayats; Article 243-D regulates reservation of seats for Scheduled Castes and Scheduled Tribes. Article 243-E prescribes duration of Panchayats. Article 243-G enumerates power, authority and responsibility of Panchayats. Article 243-H contemplates that the legislature of the State may, by law, authorize a Panchayat to levy, collect and appropriate taxes, duties, tolls and fee. It also postulates making of a provision for grant-in-aid to the Panchayats and constitution of Panchayat fund. Article 243-I provides for constitution of Finance Commission to review financial position of the Panchayats and to make recommendations to the Government on various matters specified in that Article. Article 243-K regulates elections to the Panchayats. Article 243-M declares that provisions of Part IX shall not apply to the Scheduled Areas. Clause (4) thereof empowers the legislature of a State to enact law for extending the provisions of Part IX to the Scheduled Areas and Tribal Areas. Article 243-O which begins with a non-obstante clause contains a bar to the Court's interference in electoral matters.

8. To bring the existing legislations in tune with the provisions contained in Part IX of the Constitution, the Himachal Pradesh State legislature enacted the 1994 Act and repealed the Himachal Pradesh Panchayati Raj Act, 1968, the Himachal Pradesh Panchayati Raj (Election) Rules, 1971 and Himachal Pradesh Municipal Act, 1968.

9. Chapter-III of the 1994 Act contains provisions relating to constitution, administration and control of Gram Panchayats. Section 120 lays down the duration of Panchayats. Section 125 of the Act provides for reservation of seats for Scheduled Castes, Scheduled Tribes, Backward Classes and Women. Sections 12, 13, 14 and 15 prescribe the procedure for preparation and publication of electoral roll for a Gram Panchayat. Chapters XI and X-A of 1994 Act contains provisions relating to constitution of State Election Commission, conduct of elections and election offences. Section 162 contains a prohibition against challenge to elections except by way of an election petition. Chapter-CIII contains special provisions relating to the Panchayats. Section 186 empowers the Government to make rules to carry out all or any of the purposes of the Act. In exercise of the powers vested in it under Sections 183 and 186 of the Himachal Pradesh Panchayati Raj Act, 1994, the Government of Himachal Pradesh framed the Himachal Pradesh Panchayati Raj (Election) Rules, 1994 (for short, 'the 1994 Rules'). Rule 93 of these Rules contains a

reiteration to the bar against challenge to the election held under the 1994 Act except by an election petition.

10. Articles 243(d), 243-D, 243-E, 243-K(1), 243-M(1) and (4), Article 243-O and Article 329 of the Constitution and Sections 119, 125, 160, 162 and 192 of the 1994 Act, which have bearing on the decision of this petition, read as under:-

Constitution of India.

243(d) "Panchayat" means an institution (by whatever name called) of self-Government constituted under Article 243-B, for the rural areas.

243-D. Reservation of seats:

(1) Seats shall be reserved for-

(a) the Scheduled Castes; and

(b) the Scheduled Tribes,

(2) Not less than one-third of the total number of seats reserved under Clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.

(3) Not less than one-third (including the number of seats reserved for women belonging to the

Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat.

(4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and Women in such manner as the Legislature of a State may, by law, provide:

Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the

Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State; Provided further that not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women: Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at the each level.

(5) The reservation of seats under Clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under Clause (4) shall cease to have effect on the expiration of the period specified in Article 334.

(6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens. 243-E. Duration of Panchayats etc :-(1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer.

(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in Clause (1).

(3) An election to constitute a Panchayat shall be completed- (a) before the expiry of its duration specified in Clause (1) : (b) before the expiration of a period of six months from the date of its dissolution:

Provided that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat for such period.

(4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under Clause (1) had it not been so dissolved. 243-K. Elections of the Panchayats:-The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in

a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. 243-M. Part not to apply to certain areas:- (1) Nothing in this Part shall apply to the Scheduled Areas referred to in Clause (1), and the Tribal Areas referred to in Clause (2), of Article 244.

(2)...

(3)...

(4) Notwithstanding anything in this Constitution,-

(a) the Legislature of a State referred to in Sub-clause (a) of Clause (2) may, by law, extend this Part to that State, except the areas, if any, referred to in Clause (1), if the Legislative Assembly of that State passes a resolution to that effect by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting;

(b) Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the Tribal Areas referred to in Clause

(1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of this Constitution for the purposes of Article 368.

243-O. Bar to interference by Courts in electoral matters:-

Notwithstanding anything in this Constitution,-

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243K, shall not be called in question in any Court;

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.

329. Bar to interference by Courts in electoral matters:-

Notwithstanding anything in this Constitution,-

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any Court:

(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election-petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature." Himachal Pradesh Panchayati Raj Act, 1994

Section 8. Constitution of Gram Panchayats.- (1) There shall be a Gram Panchayat for a Gram Sabha and every Gram Sabha shall, in the prescribed manner, elect from amongst its members a Pradhan and Up-Pradhan of the Sabha who shall also be called the Pradhan and Up-Pradhan of the Gram Panchayat and shall also elect from amongst its members an Executive Committee called the Gram Panchayat consisting of such number of persons not being less than seven and more than fifteen, including Pradhan and Up-Pradhan, as the Government may by notification determine:

Provided that the number of members excluding Pradhan and Up-Pradhan to be assigned to each Gram Sabha, shall be determined on the following scale:-

(a) with a population not exceeding 1750 .. five

(b) with a population exceeding 1750 but not exceeding 2750 .. seven

(c) with a population exceeding 2750 but not exceeding 3750 .. nine

(d) with a population exceeding 3750 but not exceeding 4750 .. eleven

(e) with a population exceeding 4750 ..thirteen:

Provided further that the number of members of a Gram Panchayat, excluding Pradhan and Up-Pradhan, shall be determined in such a manner that the ratio between the population of the Gram Sabha and the number of seats of members in such a Panchayat to be filled by election shall, so far as practicable, be the same throughout the Sabha area:

Provided further that the member of the Panchayat Samiti, representing a part or whole of the Gram Sabha area shall also be the member of the concerned Gram Panchayat(s) and shall have the right to vote.

(2) Seats shall be reserved in a Gram Panchayat—

(a) for the Scheduled Castes, and

(b) for the Scheduled Tribes, and the number of seats so reserved shall bear, as nearly as may be, same proportion to the total number of seats in the Gram Panchayat as the population of the Scheduled Castes or the Scheduled Tribes in the Sabha area bears to the total population of the Sabha area:

Provided that in case no reservation of seats is possible as aforesaid due to small population of the Scheduled Castes and the population of Scheduled Castes of the Sabha area is atleast five percent of the total population of the Sabha area, one seat shall be reserved for the Scheduled Castes in such a Gram Panchayat:

Provided further that where there is no eligible candidate belonging to the Scheduled Castes to be elected as a member of the Gram Panchayat, no seat shall be reserved for Scheduled Castes:

Provided further that in non-tribal areas where there is Scheduled Tribes population in a Gram Sabha, seats shall be reserved for such members of the Scheduled Tribes within the reservation provided for the members of the Scheduled Castes and the determination of seats to be reserved amongst the Scheduled Castes and Scheduled Tribes shall be in proportion to their population in that Gram Sabha.

Explanation.- The expression "non-tribal area" for the purpose of this proviso shall mean the areas other than the Scheduled Areas specified in relation to the State of Himachal Pradesh.

(3) One-half of the total number of seats reserved under subsection (2) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes. (3-A) One-half (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Gram Panchayat shall be reserved for women.

(4) The State Government may, by general or special order, reserve such number of seats for persons belonging to Backward Classes in a Gram Panchayat, not exceeding the

proportion to the total number of seats to be filled by direct election in the Gram Panchayat as the population of the persons belonging to Backward Classes in that Gram Sabha area bears to the total population of that area and may further reserve one-half of the total seats reserved under this sub- section for women belonging to Backward Classes.

(5) The seats reserved under sub-sections (2), 5[(3), (3-A)] and

(4) shall be allotted by rotation to different constituencies in the Sabha area in such manner as may be prescribed.

(6) If for any reason the election to any Gram Panchayat does not result in the election of required number of persons as specified in sub-section (1), the Deputy Commissioner, shall within one month from the date on which the names of the elected persons are published by him under section 126 arrange another election to make up the deficiency.

120.Duration of Panchayats.- (1) Every Panchayat shall continue for five years from the date appointed for its first meeting and no longer unless sooner dissolved under this Act.

(2) An election to constitute a Panchayat shall be completed-

(a) before the expiry of its duration specified in sub-section (1); and

(b) before the expiration of a period of six months from the date of its dissolution:

Provided that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months it shall not be necessary to hold any election under this clause for constituting the Panchayat for such period.

(3) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayats, would have continued under sub-section (1) had it not been so dissolved.

125. Reservation for Chairpersons.- (1) There shall be reserved by the Government, in the prescribed manner such number of offices of Chairpersons in Panchayats at every level in the State for the persons belonging to the Scheduled Castes and Scheduled Tribes and the number of such offices, bearing as may be the same proportion to the total number of

offices in the State as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the population of the State.

(2) [One-half] of offices of Chairpersons reserved in each category, for persons belonging to the Scheduled Castes and Scheduled Tribes and of the non-reserved offices in the Panchayats at every level shall be reserved for women.

(3) The State Government may, by general or special order, reserve such number of offices of chairpersons for persons belonging to Backward Classes in Panchayats at every level, not exceeding the proportion to the total number of offices to be filled by direct election in the Panchayat as the population of the persons belonging to Backward Classes in the State bears to the total population of the State and may further reserve [one- half] of the total seats reserved under this sub-section for women belonging to Backward Classes.

(4) The offices of Chairpersons reserved under sub-sections (1),

(2) and (3) shall be allotted by rotation to different constituencies in the district in such manner as may be prescribed. Explanation.- For the removal of doubt it is hereby declared that the principle of rotation for the purposes of reservation of office under this section shall commence from the first election to be held after the commencement of this Act.

160. State Election Commission.- (1) There shall be a State Election Commission constituted by the Governor for superintendence, direction and control of the preparation of electoral rolls for, and the conduct of all elections to the Panchayat bodies in the State under this Act and the rules made thereunder. The Commission shall consist of a State Election Commissioner to be appointed by the Governor.

(2) The salary and allowances payable to, tenure of office and conditions of service of the State Election Commissioner shall be such as the Governor may by rule determine:

Provided that the State Election Commissioner shall not be removed from his office except in the like manner and on the like grounds as a judge of the High Court and the conditions of

service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.

(3) The Governor shall, when so requested by the State Election Commissioner make available to him such staff as may be necessary for the discharge of the functions conferred on him under this Act.

182. Bar of interference by Courts in election matters.

Notwithstanding anything contained in this Act, the validity] of any law relating to the delimitation of constituencies, or the allotment of seats in such constituencies, made or purported to be made under this Act shall not be called in question in any Court."

11. Before proceeding further, we consider it proper to observe that even though Section 182 of 1994 Act contains a bar against challenge to the election except by an election petition, the same does not in any manner impinge on the High Court's power to issue appropriate directions, orders or writs under Article 226 of the Constitution.

12. However, the moot question which requires determination is-whether the bar to Court's interference in electoral matters contained in Article 243-O operates qua the High Court's power of judicial review under Article 226.

13. A plain reading of the language of Article 243-O makes it clear that the ambit and reach of the bar contained therein is very wide and pervasive. The non-obstante clause contained in that article excludes all other provisions of the Constitution, which necessarily include Article 226. It lays down that the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under

Article 243-K shall not be called in question in any Court. It also declares that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as provided for by or under any law made by the Legislature of a State. In other words, the power of the judicial review conferred upon the High Courts under Article 226 of the Constitution of India is not available to an aggrieved person until after the adjudication of the election dispute by an authority constituted under the law enacted by the Legislature of the concerned State.

14. To put it differently, any challenge to the election or any election dispute can be adjudicated in the first instance only by an authority constituted by or under any law made by the Legislature of a State and not otherwise. The High Court can entertain writ petition against an adjudicatory order made by the Tribunal etc. constituted under the State Legislation, but cannot entertain a petition directly filed under Article 226 of the Constitution questioning the law relating to delimitation of constituencies or the allotment of seats or election to any Panchayat.

15. The reason why the Parliament did not want any judicial intervention in the process of election is clearly discernible from the scheme of various provisions contained in Part DC. While making the Panchayats as units of self-Government, the Parliament also ensured that they are controlled by democratically elected bodies having a fixed tenure of five years.

16. These provisions are also reflective of the legislative intendment that the electorates of the Panchayats should be able to exercise their franchise to choose the candidates of their choice at the end of five years period, if not before. While enacting Clause

(3) of Article 243-E, which, as mentioned above, mandates that election to constitute a Panchayat shall be completed before expiry of its duration of five years, the Parliament must have taken into consideration that the provisions contained in various statutes for appointment of administrative and executive officers to manage the affairs of the local bodies in urban as well as rural areas at the end of the term of the elected bodies and the fact that these provisions are generally misused and efforts are made by the interested parties and persons to deprive the people of their right to choose their representatives. The Parliament must also have taken note of the fact that process of election to various bodies including Panchayats, which are intended to be units of self-Government, is often frustrated by judicial interventions at various stages like delimitation of constituencies, issuance of notification for holding election, preparation and publication of the electoral rolls, filing of nomination papers, actual poll, counting of votes and declaration of result. Therefore, with a view to ensure that the elections to the Panchayats, which have been declared as units of self Government, are held without interruption on account of intermediate/ interlocutory judicial interventions, the Parliament designedly enacted Article 243-O and introduced a complete bar to

Courts' interference in the electoral matters and also incorporated non-obstante clause which operates qua all other provisions contained in the Constitution.

17. It could be well conceived that in case the Parliament intended to exclude Article 226 from the purview of the non-obstante clause contained in Article 243-O, then the language of that Article would have been like that of Articles 116,

120, 128, 133(2), (3), 136, 145, 170(1), 196, 197(3), 204(3), 206,

210, 224-A, 226(1), 231(1), 239(2), 243-M(1), 243-N, 243-ZC, 246(1) and (2), 247, 249(1), 250(1), 253, 266(1), 271, 276(1), 301,

303(1), 304, 312(1), 317(1), 330(3), 331, 332(B), 333, 334, 343(1),

345, 348(1), (2), 376(1) and 378-A, wherein the non-obstante clauses contained in these Articles have limited operation. For example, non-obstante clause contained in Article 116 operates against the provisions contained in Chapter II of Part IV. Similarly, the non-obstante clause contained in Article 120 operates against the provisions contained in Part XVII. Against this, the non- obstante clauses contained in Articles 243-O, 243-ZG, 244-A, 258(1), 258-A, 262(2), 329, 363, 363-A, 368, 369, 371(2), 371- A(1), (2), 371-B, 371-C, 371-F, 371-H and 371-I are very wide. The expression used in these articles is "notwithstanding anything contained in this Constitution". This means that the provisions contained therein operate against all other articles of the Constitution. If the non-obstante clause contained in Article 243-O and similar clause contained in Article 243-ZG is interpreted in the

backdrop of the fact that the Parliament did not want intermediary/interlocutory judicial interventions in the process of election which constitutes an integral part of the democratic set up of our country, it becomes clear that the High Court's power of judicial review under Article 226 of the Constitution is postponed in the matters involving challenge to delimitation of constituencies or allotment of seats or election to Panchayats until after completion of the process of election and adjudication of election dispute by an adjudicatory forum created under the law enacted by the Legislature of the State.

18. Having noticed the various provisions of the Constitution as also the Himachal Pradesh Panchayati Raj Act, 1994, we may now proceed to notice certain judicial pronouncements on the subject.

19. In N.P. Ponnuswami Vs. Returning Officer, AIR 1952 SC 64, the Hon'ble Constitution Bench of the Hon'ble Supreme Court held that the inherent restriction of exercise of writ jurisdiction in election matters are recognized and the word "election" is used to embrace the whole procedure of election and is not confined to final result thereof. It was further held that the law does not contemplate two attacks on matters connected with election, one under Article 226 during the process of election and the other when it is completed by election petition under Representation of the People Act. It was held that rejection or acceptance of nomination

paper cannot be called in question under Article 226 of the Constitution of India.

20. Constitution Bench of the Hon'ble Supreme Court in

Meghraj Kothari Vs. Delimitation Commission and others AIR 1967 SC 669, held that once the orders of delimitation had been made and published in the official gazette, then these matters could no longer be re-agitated in a Court of law, because in case these orders were not treated as final, the effect would be that any voter could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court. It was observed that:-

"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 Ss.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 Ss. 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 Ss. 8 and 9 published under S. 10 (1) were to be treated as law which was not to be questioned in any court."

21. The decision in Ponnuswami (supra) was followed in number of decisions and subsequently in case of Mohinder Singh Gill Vs. The Chief Election Commissioner, (1978) 1 SCC 405,

another Hon'ble Constitution Bench considered the ambit of the bar contained in Article 329 (b) of the Constitution and it was held that:-

"28. What emerges from this perspicacious reasoning, if we may say so with great respect, is that any decision sought and rendered will not amount to 'calling in question' an election if it subserves the progress of the election and facilitates the completion of the election. 'Ale should not slur over the quite essential observation "-Anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election. Likewise, it is fallacious to treat 'a single step taken in furtherance of an election as equivalent to election.

29. Thus, there are two types of decisions, two types of challenges. The first relates to proceedings which interfere with the progress of the election. The second accelerates the completion of the election and acts in furtherance of an election. So, the short question before us, in the light of the illumination derived from Ponnuswami, is as to whether the order for re-poll of the Chief Election Commissioner is "anything done towards the completion of the election proceeding' and whether the proceedings before the High Court facilitated the election process or halted its progress. The question immediately arises as to whether the relief sought in, the writ petition by the present appellant amounted to calling in question the election. This, in turn, revolves round the point as to whether the cancellation of the poll and the reordering of fresh poll is 'part of election' and challenging it is 'calling it in question'.

30. The plenary bar of Art. 329 (b) rests on two principles: (1) The peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion. (2) The provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form, the right and remedy being creatures of statutes and controlled by the Constitution. Durga Shankar Mehta(1) has affirmed this position

and supplemented it by holding that, once the Election Tribunal has decided, the prohibition is extinguished and the Supreme Court's over-all power to interfere under Art. 136 springs into, action. In Hari Vishnu(2) this Court upheld the rule in Ponnuswami excluding any proceeding, including one under Art. 226, during the on- going process of election, understood in the comprehensive sense of notification down to declaration. Beyond the declaration comes the election petition, but beyond the decision of the Tribunal the ban of Art. 329(b) does not bind.

31. If 'election' bears the larger connotation, if 'calling in question' possesses a semantic sweep in plain English, if policy and principle are tools for interpretation of statutes, language permitting the conclusion is irresistible' even though the argument contra may have emotional impact and ingenious appeal, that the catch-all jurisdiction under Art. 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll. For, the prima facie purpose of such a re-poll was to restore a detailed Poll process and to, complete it through the salvationary effort of a repoll. Whether in fact or law, the order is validly made within his powers or violative of natural justice can be examined later by the appointed instrumentality, viz., the Election Tribunal. That aspect will be explained presently. We proceed on the footing that re-poll in one polling station or it many polling stations for good reasons, is lawful. This shows that re-poll in many or all segments, all- pervasive or isolated, can be lawful. We are not considering whether the act was bad for other reasons. We are concerned only to say that if the regular poll, for some reasons, has failed to reach the goal of choosing by plurality the returned candidate and to achieve this object a fresh poll (not a new election) is needed, it may still be a step in the election. The deliverance of Dunkirk is part of the strategy of counter-attack. Wise or valid, is another matter.

32. On the assumption, but leaving the question of the validity of the direction for re-poll soon for determination by the Election Tribunal, we hold that a writ petition challenging the cancellation coupled with re-poll amounts to calling in question a step in

'election! and is there, fore barred by Art. 329(b). If no re-poll had been directed the legal perspective would have been very different. The mere cancellation would have then thwarted the course of the election and different considerations would have come into play. We need not chase a hypothetical case."

22. In Nanhoo Mal Vs. Hira Mal, AIR 1975 SC 2140, it was held that after the decision in N.P. Ponnuswami's case (supra), there is hardly any room for Courts to entertain applications under Article 226 of the Constitution in matters relating the election.

23. In Sundarajas Kanyalal Bhathua Vs. Collector, Thane, AIR 1990 SC 261, it was held by the Hon'ble Supreme Court that the exercise of delimitation of municipal area is a legislative function, therefore, the right of hearing or principle of natural justice is not applicable.

24. In State of U.P. and others Vs. Pradhan Sangh Kshettra Samiti, AIR 1995 SC 1512, the Hon'ble Supreme Court held that after publication of notification of delimitation, the bar under Article 243-O of the Constitution of India operates and therefore, neither the delimitation of the Panchayat areas nor of the constituencies in the said area and allotment 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 to hold the election was issued. The Hon'ble Supreme

Court refused to interfere in the matter of delimitation of constituencies after publication of the notification of delimitation of Panchayat areas even where the writ petitions had been filed prior to the notification of election. It was held that:

"11…… It is for the Government to decide in what manner the panchayat areas and the constituencies in each panchayat area will be delimited. It is not for the court to dictate the manner in which the same would be done. So long as the panchayat areas and the constituencies are delimited in conformity with the constitutional provisions or without committing a breach thereof, the courts cannot interfere with the same. We may, in this connection, refer to a decision of this Court in The Hingir-Rampur Coal Co, Ltd. and Others v. The State of Orissa and Others [(1961) 2 SCR 537]. In this case, the petitioner mine owners, had among others, challenged the method prescribed by the legislature for recovering the cess under the Orissa Mining Areas Development Fund Act, 1952 on the ground that it was un- constitutional. The majority of the Bench held that the method is a matter of convenience and, though relevant, has to be tested in the light of other relevant circumstances. It is not permissible to challenge the vires of a statute solely on the ground that the method adopted for the recovery of the impost can and generally is adopted in levying a duty of excise.

What is more objectionable in the approach of the High Court is that although clause (a) of Article 243-0 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 & Ors. (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 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 243-0 in place o 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. 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."

25 In Anugrah Narain Singh & another Vs. State of Uttar Pradesh & others (1996) 6 SCC 303 the Hon'ble Supreme

Court on interpretation of Article 243-ZG of the Constitution, held that once the process of election has been set into motion, the Court should not intervene to stop election in the midway. It is apt to reproduce para 24, which read thus:-

"24. The validity of Sections 6-A, 31, 32 and 33 of the U.P. Act dealing with delimitation of wards cannot be questioned in a court of law because of the express bar imposed by Article 243- ZG of the Constitution. Section 7 contains rules for allotment of seats to the Scheduled Castes, the Scheduled Tribes and the Backward Class people. The validity of that Section cannot also be challenged. That apart, in the instant case, when the delimitation of the wards was made, such delimitation was not challenged on the ground of colourable exercise of power or on any other ground of arbitrariness. Any such challenge should have been made as soon as the final order was published in the Gazette after objections to the draft order were considered and not after the notification for holding of the elections was issued. As pointed out in Lakshmi Charan Sen's Case, that the fact that certain claims and objections had not been disposed of before the final order was passed, cannot arrest the process of election."

26. In Jaspal Singh Arora Vs. State of M.P. and others (1998) 9 SCC 594, the Hon'ble Supreme Court, set aside the order of the Madhya Pradesh High Court on the ground that bar contained under Article 243-ZG was overlooked. It was held that:-

"3. These appeals must be allowed on a short ground. In view of the mode of challenging the election by an election petition being prescribed by the M.P. Municipalities Act, it is clear that the election could not be called in question except by an election petition as provided under that Act. The bar to interference by courts in electoral matters contained in Article 243-ZG of the Constitution was apparently overlooked by the High Court in allowing the writ petition. Apart from the bar under Article 243-

ZG, on settled principles interference under Article 226 of the Constitution for the purpose of setting aside election to a municipality was not called for because of the statutory provision for election petition and also the fact that an earlier writ petition for the same purpose by a defeated candidate has been dismissed by the High Court."

27. The Hon'ble Supreme Court in Election Commission of India Vs. Ashok Kumar and others AIR 2000 SC 2977 further elaborated the observations made in Mohinder Singh Gill's case (supra) and observed as under:-

"22. In Lakshmi Charan Sen Vs. A.K.M. Hassan Uzzaman (AIR 1985 SC 1233) writ petitions under Article 226 of the Constitution were filed before the High Court asking for the writs of mandamus and certiorari, directing that the instructions issued by the Election Commission should not be implemented by the Chief Electoral Officer and others; that the revision of electoral rolls be undertaken de novo; that claims, objections and appeals in regard to the electoral roll be heard and disposed of in accordance with the rules; and that, no notification be issued under S.15(2) of the Representation of the People Act, 1951 calling for election to the West Bengal Legislative Assembly, until the rolls were duly revised. The High Court entertained the petitions and gave interim orders. The writ petitioners had also laid challenge to validity of several provisions of Acts and Rules, which challenge was given up before the Supreme Court. The Constitution Bench held though the High Court was justified in entertaining the writ petition and issuing a rule therein since, the writ petition apparently contained a challenge to several provisions of Election Laws, it was not justified in passing any order which would have the effect of postponing the elections which were then imminent. Even assuming, therefore, that the preparation and publication of electoral rolls are not a part of the process of election within the meaning of Article 329(b), we must reiterate our view that the High Court ought not to have passed the impugned interim orders, whereby it not only

assumed control over the election process but, as a result of which, the election to the Legislative Assembly stood the risk of being postponed indefinitely.

23. In Election Commission of India Vs. State of Haryana AIR 1984 SC 1406 the Election Commission fixed the date of election and proposed to issue the requisite notification. The Government of Haryana filed a writ petition in the High Court and secured an ex-parte order staying the issuance and publication of the notification by the Election Commission of India under Sections 30, 56 and 150 of the Representation of the People Act, 1951. This Court deprecated granting of such ex-parte orders. During the course of its judgment (vide para 8) the majority speaking through the Chief Justice observed that it was not suggested that the Election Commission could exercise its discretion in an arbitrary or mala fide manner; arbitrariness and mala fide destroy the validity and efficacy of all orders passed by public authorities. The minority view was recorded by M.P. Thakkar, J. quoting the following extract from A.K.M. Hassan Uzzaman (1982) 2 SCC 218 :-

"The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Courts writ jurisdiction. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefinitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution." and held that even according to Hassans case the Court has the power to issue an interim order which has the effect of postponing an election but it must be exercised sparingly (with reluctance) particularly when the result of the order would be to postpone the installation of a democratic elected popular Government.

24. In Digvijay Mote Vs. Union of India & Ors. (1993) 4 SCC 175 this Court has held that the powers conferred on the Election Commission are not unbridled; judicial review will be permissible over the statutory body, i.e., the Election Commission exercising

its functions affecting public law rights though the review will depend upon the facts and circumstances of each case; the power conferred on the Election Commission by Article 324 has to be exercised not mindlessly nor mala fide nor arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation.

25. Anugrah Narain Singh and Anr. Vs. State of U.P. & Ors. - 1996 (6) SCC 303 is a case relating to municipal elections in the State of Uttar Pradesh. Barely one week before the voting was scheduled to commence, in the writ petitions complaining of defects in the electoral rolls and de-limitation of constituencies and arbitrary reservation of constituencies for scheduled castes, scheduled tribes and backward classes the High Court passed interim order stopping the election process. This Court quashed such interim orders and observed that if the election is imminent or well under way, the Court should not intervene to stop the election process. If this is allowed to be done, no election will ever take place because someone or the other will always find some excuse to move the Court and stall the elections. The importance of holding elections at regular intervals cannot be over-emphasised. If holding of elections is allowed to stall on the complaint of a few individuals, then grave injustice will be done to crores of other voters who have a right to elect their representatives to the democratic bodies.

26. In C. Subrahmanyam Vs. K. Ramanjaneyullu and Ors. (1998) 8 SCC 703 this Court has held that non-compliance of a provision of the Act governing the elections being a ground for an election petition, the writ petition under Article 226 of the Constitution of India should not have been entertained.

27. In Mohinder Singh Gills case (supra) the Election Commission had cancelled a poll and directed a re-polling. The Constitution Bench held that a writ petition challenging the cancellation coupled with repoll amounted to calling in question a step in election and is therefore barred by Article 329 (b). However, vide para 32, it has been observed that had it been a case of mere cancellation without an order for repoll, the course of election would have been thwarted (by the Election

Commission itself) and different considerations would have come into play.

28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of over- enthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.

29. Section 100 of the Representation of the People Act, 1951 needs to be read with Article 329 (b), the former being a product of the later. The sweep of Section 100 spelling out the legislative intent would assist us in determining the span of Article 329 (b) though the fact remains that any legislative enactment cannot curtail or override the operation of a provision contained in the Constitution. Section 100 is the only provision within the scope of which an attack on the validity of the election must fall so as to be a ground available for avoiding an election and depriving the successful candidate of his victory at the polls. The Constitution Bench in Mohinder Singh Gills case (vide para 33) asks us to read Section 100 widely as covering the whole basket of grievances of the candidates. Sub-clause (iv) of clause (d) of sub-section (1) of Section 100 is a residual catch-all clause. Whenever there has been non-compliance with the provisions of the Constitution or of the Representation of the People Act, 1951 or of any rules or orders made thereunder if not specifically covered by any other preceding clause or sub-clause of the Section it shall be covered by sub-clause (iv). The result of the election insofar as it concerns a returned candidate shall be set aside for any such non-compliance as abovesaid subject to such non-compliance also satisfying the requirement of the result of the election having been shown to have been materially affected insofar as a returned candidate is concerned. The conclusions which inevitably follow are: in the field of election jurisprudence,

ignore such things as do not materially affect the result of the election unless the requirement of satisfying the test of material effect has been dispensed with by the law; even if the law has been breached and such breach satisfies the test of material effect on the result of the election of the returned candidate yet postpone the adjudication of such dispute till the election proceedings are over so as to achieve, in larger public interest, the goal of constituting a democratic body without interruption or delay on account of any controversy confined to an individual or group of individuals or single constituency having arisen and demanding judicial determination.

30. To what extent Article 329 (b) has an overriding effect on Article 226 of the Constitution? The two Constitution Benches have held that Representation of the People Act, 1951 provides for only one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. The non- obstante clause with which Article 329 opens pushes out Article 226 where the dispute takes the form of calling in question an election (see para 25 of Mohinder Singh Gills case, supra). The provisions of the Constitution and the Act read together do not totally exclude the right of a citizen to approach the Court so as to have the wrong done remedied by invoking the judicial forum; nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities, and knock the doors of the courts when the election proceedings in question are over. Two- pronged attack on anything done during the election proceedings is to be avoided--one during the course of the proceedings and the other at its termination, for such two pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy.

31. The founding fathers of the Constitution have consciously employed use of the words no election shall be called in question in the body of Section 329 (b) and these words provide the determinative test for attracting applicability of Article 329 (b). If the petition presented to the Court calls in question an election the bar of Article 329 (b) is attracted. Else it is not."

28. The Hon'ble Supreme Court in Election Commission's case (supra) after detailed consideration with regard to the power to be exercised by the Courts in matters relating to elections in para 32 of the said judgment summarized the following general principles:-

"32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:-

1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.

2) Any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.

3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well- settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.

4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by

the time the results are declared and stage is set for invoking the jurisdiction of the Court.

5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."

29. In Jasbir Hussain Nasir Ahmed Boga Vs. State of Gujarat & others, AIR 2006 Gujarat 53, Full Bench of the Gujarat High Court held that the bar imposed by Article 243-ZG, which is pari materia with the bar under Article 243-O (a) of the Constitution is absolute and the resolution of any dispute pertaining to an election which has the effect of interrupting, obstructing or protracting the election shall be postponed until after the completion of the election. The Court shall desist from making any order; interim or otherwise, which has the effect of postponement of the election. It is apt to reproduce paragraph 14, which reads thus:-

"14. We have carefully considered the above referred judgments relied upon by the learned advocates. We are of the view that none of the aforesaid judgments supports the contentions raised by Mr.Raval and Mr.Vyas. It is the consistent view of this Court and the Hon'ble Supreme Court that the bar imposed by Article

243-ZG is absolute and that the resolution of any dispute pertaining to an election which has the effect of interrupting, obstructing or protracting the election shall be postponed until after the completion of the election. The Court shall desist from making any order; interim or otherwise, which has the effect of postponement of the election. The process of election, as defined in Clause 7A of Section 2 of the Act of 1963, shall be deemed to have commenced from the date the order of delimitation of wards is made by the Election Commission of the State. Hence, once the order of delimitation of wards is made no court shall entertain any dispute concerning the delimitation of wards or any other matter concerning the election. The resolution of such disputes shall be postponed until after the election is complete."

30. Learned five Judges Bench of Punjab and Haryana High Court in Prithvi Raj Vs. State Election Commission, AIR 2007 PH 178, while dealing with the bar of interference by the Court in elections to the Municipality, held that the elections can be called in to question by way of election petition before the authority or tribunal provided by the statute enacted by the State legislature, but this did not oust the jurisdiction of the High Court under Article 226 of the Constitution, but its power of judicial review was merely postponed to a stage after the election tribunal had adjudicated upon the election petition. It also overruled the earlier view of Full Bench in Lal Chand Vs. State of Haryana, AIR 1999 P&H 1,

wherein it had been held that Article 243-ZG (b) could be read down and held ultra virus to the provisions of Article 226 of the Constitution, it was held that the challenge to an election under Article 226 would be postponed to a time and stage after the

conclusion of the "election" and that too by an election petition, the High Court would in exercise of judicial restraint, postpone judicial review to a stage after the Election Tribunal adjudicates the election petition. Meaning thereby, that the Court unequivocally held that the High Court could not entertain a writ petition calling in question elections once the elections have been notified.

31. In Association of Residents of Mhow (Rom) Vs. Delimitation Commission of India (2009) 5 SCC 404, the Hon'ble Supreme Court considered the scope of interference by the Courts in matters of delimitation and in view of clause A of Article 243-O held that the order under the Delimitation Act, 2002 is law made under Article 327 of the Constitution and cannot be called in question in any Court by virtue of Article 329 and therefore, the High Court rightly relied on this short ground, when it summarily dismissed the writ petition under Article 226 praying for writ of certiorari for quashing the notification issued in pursuance of Section 10 (1) of the Act. It was held that:-

"28. The Commission's power to determine delimitation of the constituency is not unlimited but is structured by the provisions of the Act and more particularly by Sections 8 and 9 of the Act apart from the Constitution (Eighty-fourth Amendment) Act, 2001 and Constitution (Eighty-seventh Amendment) Act, 2003 which have, inter alia, amended Articles 81, 82, 170, 330 and 332 of the Constitution of India. The effect of these amendments to the Constitution inter alia is that each Parliamentary Constituency in each State shall be an integral multiple of the

number of seats comprised therein and no Assembly Constituency shall extend to more than one Parliamentary Constituency.

29. The Commission in the present case appears to have determined the delimitation of both Dhar and Indore Parliamentary Constituencies in such a manner whereby each of the Parliamentary Constituency shall consist of equal number of

8 Assembly Constituencies. It appears the Commission had also taken into consideration the contiguity, geographical features, public convenience etc. before finally determining the delimitation of both the Parliamentary Constituencies. We find no illegality to have been committed by the Commission.

30. In the present case, the High court of Madhya Pradesh at Jabalpur summarily dismissed the writ petition under Article 226 of the Constitution praying for writ of certiorari for quashing the notification issued in pursuance of sub-section (1) of Section 10 of the Act in respect of the delimitation of Indore Parliamentary Constituency. The petition was rejected on the short ground that the order of the Commission once published under Section 10(2) of the Act is law made under Article 327 of the Constitution and cannot be called in question in any court by virtue of Article 329 of the Constitution.

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 (supra) 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 Padhan Sangh 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:

"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 Commission3. 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. 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 this judgment

"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, para 45)

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 (supra) 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. 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 Constituti n 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.

20. 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.......the provision of Section 10(4) 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."

32. A learned Division Bench of this Court in Angdui Norbu & others Vs. State of Himachal Pradesh & others AIR 2012 HP 36, held that a petition can be said to be an election petition under Section 162 of the Panchayati Raj Act only if the same is filed on any one of the grounds as prescribed under Section 175 (1) of the Act. However, in case no ground as prescribed is available to the petitioner under Section 175 (1) to maintain an election petition under Section 162 of the Act, then the plea that there is an alternative remedy by way of election petition and the bar under Article 243 O of the Constitution would not be attracted. It is apt to reproduce paras 15 and 18 of the judgment, which read thus:-

"15. Section 163(1), provides that "Any elector of a Panchayat may, on furnishing the prescribed security in the prescribed manner, present within 30 days of the publication of the result, on one or more of the grounds specified in sub-section (1) of section 175, to the authorised officer an election petition in writing against the election of any person under this Act." Thus, an election petition would lie only on the ground specified under Section 175(1). Section 175(1) provides for grounds for declaring the elections to be void, which read as follows:

"175.Grounds for declaring elections to be void.-(1) If the authorised officer is of the opinion-

(a) that on the date of his election the elected person was not qualified, or was disqualified to be elected under this Act; or

(b) that any corrupt practice has been committed by the elected person or his agent or by any other person with the consent of the elected person or his agent; or

(c) that any nomination has been improperly rejected, or

(d) that the result of the election, in so far as it concerns the elected person, has been materially affected-

(i) by the improper acceptance nomination, or

(ii) by the improper reception, or rejection of any vote reception of any vote which is void, or

(iii) by any non-compliance of provisions of this act or of any rule made under this Act, the authorised officer shall declare the election of the persons to be void."

18. Since an election petition in the prescribed manner is not maintainable, as stated above, the constitutional bar also is not attracted in this case. The contention that invalidation of an election is contemplated only in an election petition is also without any basis. Section 127(2), provides for a statutory invalidation of the election in the event of an elected member not entering office within the prescribed period. Section 127(2) has provided that the election of a member who has not entered office within the prescribed period shall be deemed to be invalid. A consequence also is provided in the Act that a fresh election

should take place. Thus, the statute has not only provided a deemed invalidity but has also provided for the consequence thereof. Having provided a deeming provision also providing for the consequence for the deemed event, is not required under law that a particular authority should again declare or endorse what has taken place by the deemed event and the consequence thereof. The legislature has consciously intended to avoid such redundant provision action and a cumbersome procedure, with a view to effectively activate democratic institutions without wasting time. To hold otherwise would be doing violence to the scheme of the Act and would be a dis- service to a democratic set up. Therefore, in the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, only this Court can look into such issues and Election Tribunal is incompetent to deal with such matters. Thus, the Petition is perfectly maintainable, nay, the Petition is the only remedy."

33. The proposition which can now be culled out from the above noted judgments of the Hon'ble Supreme Court and other High Courts including this Court is that:-

(1) The word "election" appearing in Article 243-O and the provisions contained in the 1994 Act and the rules framed thereunder bears larger connotation. It embraces and includes all steps commencing from the date of notification by the Competent Authority, whereby the electorates are called upon to elect Pradhans and Up-Pradhans and ending with declaration of result. Reservation of offices of Pradhan and Wards in favour of Scheduled Castes, Scheduled Tribes, Backward Classes and Women, preparation, printing and publication of electoral rolls (provisional and final), filing of nomination papers, scrutiny of nomination papers and withdrawal thereof, publication of the list of eligible candidates, allotment of symbols, appointment of election agents, the conduct of poll, counting of votes, declaration of results and all other ancillary steps taken for

the purpose of holding elections fall within the ambit of the term "election". {N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, Mohinder Singh Gill v. Chief Election Commissioner, Election Commission of India v. Shivaji and Election Commission of India v. Ashok Kumar (supra)}

(2) (i) The bar contained in Article 243-O, which begins with non-obstante clause, debars all Courts from entertaining any challenge to law relating to delimitation of constituencies or allotment of seat made or purporting to be made under Article 243-K or election to the Panchayats. This bar also operates against the High Court's power of judicial review under Article 226. (N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, Durga Shankar Mehta v. Raghuraj Singh, Election Commission of India v. Shivaji and Election Commission of India v. Ashok Kumar (supra)}

(ii) The proposition contained in Clause (i) above is subject to the condition that challenge to the delimitation may be entertained in exceptional cases where no objections were invited and no hearing was given provided that such challenge is made before issue of notification for holding election. {State of U.P.

v. Pradhan Sangh Kshetra Samiti (supra)}

(iii) The bar contained in Article 243-O (a) would operate immediately after publication of notification of delimitation of Panchayat areas even in cases where the same is challenged prior to issuance of notification of election.

(iv) The bar contained in Article 243-O(b) operates only till the adjudication of election dispute by an adjudicatory forum created by or under any law made by the Legislature of the State. An order made by an adjudicatory forum constituted under the law made by

the State Legislature can be called in question by filing a petition under Article 226 of the Constitution.

(3) The bar contained in Article 243-O operates at all stages of the election i.e. notification issued by the State Election Commission calling upon the electorate to elect Pradhans and Up-Pradhans; reservation of offices of Pradhans in favour of Scheduled Castes, Scheduled Tribes, Backward Classes and Women; preparation, printing and publication of electoral rolls (provisional and final), filing of nomination papers, scrutiny and withdrawal thereof; allotment of symbols; appointment of election agents; counting of votes and declaration of result.

(4) The bar contained in Article 243-O(b) does not operate qua challenge to the constitutionality of a statutory provision relating to elections, though, even in such a case, the High Court will be extremely loath to pass an interlocutory order which has the effect of stalling or jeopardizing the process of election or which may result in the constitutional hiatus on account of indirect violation of Article 243-K(3) read with Article 243-K(1).

(5) Where the petitioner raises grounds which is not barred under the aforesaid provisions of the Constitution and is not covered in any one of the grounds as prescribed under Section 175(1) of the Himachal Pradesh Panchayati Raj Act, then the bar of alternate remedy by way of election petition under Section 162 of the Act and further bar under Article 243-O of the Constitution would not be attracted. Even in such cases, the Court will not normally pass interlocutory orders, which has effect of interrupting, obstructing or protracting the election.

34. Having laid down the above said principles, the individual claims as raised in these petitions would now have to be considered and determined in light of these principles, therefore,

list all these petitions for admission/hearing on 23^rdDecember,

2015.

In order to facilitate the arguments, the Registry is directed to upload copy of this order forthwith on its official website.

(Mansoor Ahmad Mir) Chief Justice. (Tarlok Singh Chauhan), December 15, 2015 Judge.

(KRS)

CWP/4614/2015

Gaurav v. The Additional Chief Secretary (Urban Development)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondents' Arguments

Petitioners' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gaurav v. The Additional Chief Secretary (Urban Development)

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