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G. Prasada Rao Vs. Election Commission of India, New Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 511 and 727 of 1978
Judge
Reported inAIR1983AP325
ActsScheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 - Sections 6, 6(3) and 8(1); Constitution of India - Articles 226, 327, 328 and 329
AppellantG. Prasada Rao
RespondentElection Commission of India, New Delhi and ors.
Appellant AdvocateV. Jagannadha Rao, ;Duba Mohan Rao, Advs., ; K. Subrahmanya Reddy, Central Government Standing Counsel and ;Government Pleader for GAD
Respondent AdvocateKrovvidi Narasimham and ;N. Babu, Advs.
Excerpt:
constitution - validity - sections 6 and 8 (1) of scheduled castes and scheduled tribes order (amendment) act, 1976 and articles 226, 327, 328 and 329 of constitution of india - validity of notification issued for declaring that salur assembly constituency reserved for scheduled tribes challenged - respondents contended that notification cannot be challenged in view of bar imposed under article 329 (a) and section 8 (2) - also contended that notification is in accordance with provisions of section 6 and valid - court observed that notification issued under section 6 regarding delimitation or readjustment and consequential allotment of seat by duly publishing it under section 8 have force of law - such notification cannot be challenged under article 226 - accordingly petition dismissed. .....seetharama reddy, j.1. in these two writ petitions the notification dated 24-1-1978 issued by the election commission declaring salur assembly constituency reserved for scheduled tribes, is sought to be quashed. a brief back-drop to this impugned notification may be set out.2. upon the completion of each census, readjustment of constituencies in the house of the people to the states, the totla number of seats in the legislative assembly of each state, and so forth, is made under the delimitation act. the delimitation commission's order no. 32 dated 1-1-1975 delimiting the state of andhra pradesh into parliamentary and assembly constituencies, was based on the 1971 census figures published by the registrar general of india this order has been incorporated in the delimitation of.....
Judgment:

Seetharama Reddy, J.

1. In these two writ petitions the notification dated 24-1-1978 issued by the Election commission declaring salur Assembly constituency reserved for scheduled Tribes, is sought to be quashed. A brief back-drop to this impugned notification may be set out.

2. Upon the completion of each census, readjustment of constituencies in the house of the people to the states, the totla number of seats in the Legislative Assembly of each State, and so forth, is made under the Delimitation Act. The Delimitation commission's order No. 32 dated 1-1-1975 delimiting the state of Andhra pradesh into parliamentary and assembly constituencies, was based on the 1971 census figures published by the Registrar General of India This order has been incorporated in the Delimitation of parliamentary and Assembly constituencies order 1976, in virtue of sections 8 of the Representation of the people Act of 1950. The election commission's impugned notification dated 24-1-1978 seeks to amend the delimitation order, 1976. The Delimitation order dated 1-1-1975 inter alia constituted parvathipuram Loksabha constituency comprising seven Assembly constituencies; out of which two were reserved for S. Ts., one for S. C. And the remaining four as general. Out of this salur was constituted as '10-salur' general constituency.

3. On 20-9-1976 the parliament enacted the scheduled castes and scheduled Tribes orders (amendment) Act, 1976, (hereinafter referred to as 'the Act), which came into force with effect from 27-7-1977. Under section 5 of the Act, the population as at the last census (1971) of the scheduled castes or as the case may be of the scheduled Tribes, in each state shall be ascertained and estimated by the census authority in the Gazette of India and the said figures so notified shall be taken to be relevant population figures as ascertained at the last census and will supersede any figures previously published.

4. After the population figures are so notified under section 5, the election commission shall under section 6 have to amend the Delimitation of parliamentary and Assembly constitutencies order, 1976, for the purpose of giving proper representation to the scheduled castes or to the scheduled Tribes on the basis of the number of reserved seats as specified in that order as amended by the commission and in consequence thereof the first and second schedules to the Representation of the people Act, 1950, shall be deemed to have been amended accordingly.

5. While making such amendmetns the elections commission shall observed the provisions of clauses (c) and (d), of sub-sec. (1) of section 9 of the Delimitation Act.

6. It shall, however be incumbent upon the election commission under section 6(3) of the Act before making any necessary amendments in the order, to publish its proposals in the gazette of India and the official Gazette of the state concerned, calling for suggestions and objections making it known that such suggestions and objections will be considered vis-a-vis the proposals.

7. In view of the revised figure of population of the scheduled Tribes, which had gone up as per 1971 census from 16, 57 657 to 22, 26, 086 the constituencies pertaining to the scheduled Tribes had to be revised and readjusted from 11 to 15. It therefore, necessitated to declare four more constituencies necessitated to declare four more constituencies as reserved for S. Ts. So, the proposals were published in the Gazette of India by a notification dated 9-9-1977, according to which the following assembly constituencies in the state of andhra pradesh were proposed to be reserved:

Sl. No. Name of the constituency Proposed to be reserved for._______________________________________________________________73 polavaram scheduled Tribes188 Achampet (Supreme Court) Scheduled tribes189 nagar Kurnool Scheduled castes273 Mulug Scheduled Tribes284 Devarkonda scheduled Tribes_______________________________________________________________

8. Achampet, a reserved constituency for scheduled castes according to the Delimitation of parliamentary and Assembly constituencies order, 1976 was proposed to be reserved for scheduled Tribes and in its place nagarkurnool was proposed to be reserved for scheduled casts. The Election commission after considering all the representations, issued the impugned notification dated 24-1-1978 by publishing it in the official gazette of the state of Andhra pradesh under sections 8 (1) of the Act, making the following constituencies as reserved for scheduled Tribes in the state Legislative Assembly.

Salur .. S.T.Polavaram .. S.T.Mulug .. S.T.Devarkonda .. S.T.

9. It is this notification that is challenged In these writ petition filed on 14-2-1978, by the learned counsel for the petitioners on the ground that the notification does not accord with the procedure laid down in the Act, as the declaration of the salur constiuency reserved for scheduled Tribes was not made a mention of in the proposals published by the election commission. Therefore no objections or suggestions could be made by the petitioners, who are voters in the said constituency and who stand deprived of their right to contest the election from the said constituency as they do not belong to the scheduled Tribe. Therefore, the notification is vitiated.

10. The counter contentions of the learned standing counsel for the central Government are:

(1) The petitioners cannot challenge the impugned notification under Article 226 of the Constitution in view of the bar of Article 329(a):

(2) the impugned noptification which has the force of law, cannot also be called in question in any Court in view of S. 8 (2) of the Act.

(3) even if the notification is amenable to the jurisdiction and investigation of this Court, the impugned notification is quite in accord with the provisions enacted in section 6 of the Act, as the proposals published by the election commission invited not only objections to the proposals, but also suggestions and it was wide open to any person cncerned to suggest for naming or declaring any constituency as reserved for scheduled Tribes outside the constituencies proposed to be reserved for scheduled Tribes. Even on merits it is further contended inasmuch as there were suggestions from the representatives of Mahabubnagar District in regard to achampet constituency that it comprises the highest population of scheduled castes and therefore the same be retained as a scheduled caste constituency and alternatively the salur constituency which was the next highest in so far as the scheduled tribe population is concerned be reserved for S. Ts. Therefore, the achampet constituency was retained as a scheduled castes constituency, while salur constituency though hitherto a general constituency was declared as a scheduled Tribe constituency.

11. The points, therefore for determination are:

(1) Whether it would be open to this Court under Article 226 of the Constitution to subject the impugned notification to scrutiny either in view of the bar under Art. 329(a) of the Constitution, or under section 8 (2) of the Act.

(2) whether the impugned notification is in accord with the provisions enacted in section 6 of the Act.

12. Before adjudicating, the relevant constitutional and statutory provisions may be noticed. Articles 327, 328 and 329(a) of the Constitution read:

'327 :- subject to the provisions of this Constitution, parliament may from time to time by law make provision with respect to all matters relating to or in connection with elections to either House of parliament or to the house of either house of the legislature of a state including the preparation of electoral rolls the delimitation of constituencies and all other matters necessary for securing the due Constitution of such house or houses'.

'328. Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by parliament, the Legislature of a state may from time to time by law make provision with respect to all matters relating to or in connection with the elections to the House or either House of the legislature of the state including the preparation of electoral rolls and all other matters necessary for securing the due Constitution of such house or houses'.

'329. Notwithstanding anything in this Constitution:-

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

(b).......................'

Sections 8, 9 and 10 of the delimitation Act, 1972 are as under:

'8. Readjustment of number of seats;-

The commission shall, on the basis of hte latest census figures and having regard to the provisions of articles 81, 170, 330 and 332 and also in relation to the state of nagaland clause (2) (h) of Art. 371-A and sub-sec (1) of section 11 of the state of Nagaland Act, 1962 (27 of 1962), in relation to the Union Territories except Delhi ss. 3 and 39 of the Government of union Territories Act, 1963 (20 of 1963),and in relation to the Union territory of Delhi Section 3 and sub-sec. (1) of section 4 of the Delhi Administration Act, 1966 (19 of 1966), by order detemine -

(a) the number of seats in the House of the prople to be allocated to each state and the number of seats,if any to be reserved for the scheduled castes and for the scheduled Tribes of the state; and

(b) the total number of seats to be assigned to the legislative assembly of each state and the number of seats, if any to be reserved for the scheduled castes and for the scheduled Tribes of the state;

Provided that the total number of seats assigned to the legislative assembly of any state under clause (b) shall be an integral multiple of the number of seats in the House of the people allocated to that state under clause (a)'.

'S. 9. Delimitation of constituencies;- (1) The commission shall, in the manner herein provided,then distribute the seats in the House of the prople allocated to each state and the seats assigned to the Legislative assembly of each state to single-mamber territorial constituencies and delimit them on the basis of the latest census figures having regard to the provisions of the Constitution and the provisions of the acts specified in section 8 and also to the following provisions namely -

(a) All constituencies shall as far as practicable, be geographically compact areas, and in delimiting them regard shall be had to physical features, existing boundaries of administrative units, facilities of communication and pulbic convenience;

(b) every assembly constituency shall be so delimited as to fall wholly within one parliamentary constituency;

(c) constituencies in which seats are reserved for the scheduled Tribes shall, as far as practicable be located in areas where the proportion of their population to the total is the largest.

(2) the commission shall-

(a) Pulbish its proposals for the delimitation of constituencies, together with the dissenting proposals if any, of any associate member who desires publication thereof in the Gazette of India and int he official Gazettes of all the states concerned and also in such other manner as it thinks fit;

(b) specify a date on or after which the proposals will be further considered by it:

(c) consider all objections and suggestions which may have been received by it before the date so specified and for the purpose of such consideration, hold one or more public sittings at such place or places in each state as it thinks fit; and

(d) thereafter by one or more orders determine-

(i) the delimitation of parliamentary constituencies; and

(ii) the delimitation of assembly constituencies, of each state'.

'S. 10. Publication or orders and their date of operation.- (1) the commission shall cause each of its orders made under sec, 8 or section 9 to be published inthe Gazette of India and in the official Gazettes of the states concerned.

(2) Upon publication in the Gazette of India, evey such order shall have the force of law and shall not be called in question in any Court.

(3)......................................

(4) subject to the provisions of sub-sec. (5), the readjustment of representation of the several territorial constituencies in the house of the prople or in the Legislative Assembly of a state and the delimitation of those constituencies provided for in any such order shall apply in relation to every election to the House or to the Assembly as the case may be held after the publication in the Gazette of India of that order and shall so apply in supersession of the provisions relating to such representation and delimitation contained in the Representation of the prople Act, 1950 (43 of 195)), and the Delimitation of parliamentary and assembly constituencies order, 1966, and any final orders of the election commission relating to the delimitation of parliamentary constituencies or as the case may be of assembly constituencies of any state made in pursuance of the provisions of any other acts.

(5)..................'

Now the scheduled castes and scheduled Tribes orders (Amendment0 Act 1976 sections 5,6, 7 and 8 run as under:

'S. 5. Determination of population of scheduled castes and scheduled Tribes:-

(1) As soon as may be after the commencement of this Act the population as at the last census of the scheduled castes or as the case may be of the scheduled castes or as the case may be of the scheduled Tribes in each state shall be ascertained or estimated by the census authority.

(2) Where by reason of the amendments made by S. 3 or S. 4.-

(a) any locality in a state specified in relation to any caste or tribe in any of the parts of the schedules to the orders referred to in the said sections is varied so as to specify a larger area in relation to such caste or tribe, the census authority shall take into account the population figures of the caste or tribe as ascertained in the last census and in any previous census wherein the population figures of the caste or tribe in respect of the increased area had been ascertained and determine the population of that caste or tribe as on the 1st day of April,1971 by increasing or decreasing such figures by the proportion in which the general population of the state or as the case may be the division district, taluk tahsil, police station development block or other territorial division in relation to which such caste or tribe has been specified by the said amendments has increased or decreased between the previous census aforesaid and the last census:

(b) any caste or tribe which is deemed to be both a scheduled caste and scheduled Tribe in relation to a state or part thereof is varied so as to specify such caste or tribe only as a scheduled caste or scheduled Tribe in relation to that state or part the census authority shall take into account the population figures of such scheduled caste and scheduled Tribe as ascertained in the last census:

Provided that it shall not be necessary for the census authority to determine the population of any scheduled caste or Tribe as on the 1st day of April, 1971, if the population of that caste or tribe was not ascertained at the ast census and in any of the previous censuses and is, in the opinion of that authority, numerically small.

Explantaion;- where the population figures of any caste or tribe in respect of any increased area referred to in clause (a) had been ascertained in more than one previous census, the census authority shall take into account, for the purposes of that clause the population figures of such caste or tribe as ascertained in the previous census which is nearest in point of time to the last census.

(3) The population figures ascertained or determined under Sub-section (2) shall be notified by the census authoirty in the Gazetee of India.

(4) The population figures so notified shall be taken to be the relevant population figures as ascertained at the last census and shall supersede any figures previously published: and the figures so notified shall be final and shall not be called in question in any Court'.

'S. 6 Re-adjustment of constituencies by the election commission:-

(1) After the population figures have been notified for any state under section 5, it shall be the duty of the commission to make such amendmetns as may necessary in the Delimitation of parliamentary and Assembly constituencies order, 1976 (without altering the extent of any constituency as given in such order) having regard to the provisions of articles 81, 170, 330 and 332 of the constitution,of section 8 of the Delimitation Act, and of this Act, for the purpose of giving proper representation to the scheduled castes or as the case may be to the scheduled Tribes of that state on the basis of the number reserved seats as specified in that order as hereunder amended by the commission and the First schedule and second schedule to the Representation of the people Act, 1950 shall be deemed to have been amended accordingly.

(2) In making any amendments under subsection (1), the commission shall as far as may be necessary have regard to the provisions of clauses (c) and (d) of sub-section (1) of section 9 of the Delimitation Act.

(3) The commission shall-

(a) publish its proposals for the amendments in the Gazette of India and the official Gazette of the state concerned and also in such other manner as it thinks fit;

(b) specify a date on or after which such proposals will be further considered by it;

(c) consider all objections and suggestions which may have been received by it before the date so specified; and

(d) thereafter make the necessary amendments in the order'.

'S. 7. Procedure and powers of the commission:-

(1) In the discharge of its functions under this Act, the commission shall determine its own procedure and shall have all the powers of a civil Court under the civil P.C., 1908,while trying a suit in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of witnesses:

(b) requiring the production of any document; and

(c) requisitioning any public record from any Court or office.

(2) the commission shall have the power to require any person to furnish any information on such points or matters as, in the opinion of the commission, may be useful for, or relevant to any matter under the consideration of the commission.

(3) the commission shall be deemed to be a civil Court for the purpose of Ss. 345 and 346 of the Cr. P.C. 1973.

Explanation:- For the purpose of enforcing the attendance of witnesses, the local limits of the jurisdiction of the commission shall be the limits of the territory of India'.

'S. 8: publication of amendments and their dates of operation:-

(1) the commission shall cause the amendments made by it in the Delimitation of parlimentary and assembly constituencies order, 1976 to be published in the Gazette of India and in the official Gazettes of the states concerned.

(2) upon the publication in the Gazette of India, every such amendment shall have the force of law and shall not be called in question in any Court.

(3) As soon as may be after such publication in the Gazette of India, every such amendment shall be laid before the House of the prople and the Legislative Assembly of the states concerned.

(4) Subject to the provisions of sub-sec. (5) the re-adjustmetn of representation of any territorial constituencies in the House of the people or in the Legislative Assembly of a state necessitated by any amendments made by the commission in the Delimitation of parliamentary and Assembly constituencies order, 1976 and provided for in that order as so amended shall apply in relation to evey election tot he House or, as the case may be to the Assembly held after the publication in the Gazette of India under subsection (1) of such amendments and shall so apply in supersession of the provisions relating to representation contained in the representation of the people Act, 1950.

(5) nothing contained in the foregoing sub-sections shall affect the representation in the House of the prople or in the legislative Assembly of a state, Existing on the date of publication in the Gazette of India under sub-section (1) of the amendmetns made by the commission under this Act'.

13. Now, the first point is whether Article 329(a) of the Constitution bars this Court to scrutinise the impugned notification. A.P. Constitution Bench of the Supreme Court in a case reported in meghraj v. Delimitation Commission : [1967]1SCR400 while interpreting the provisions enacted in Ss. 8, 9 and 10 of the Delimitation commission Act, 1962 in the light of Articles 327 and 329(a) of the Constitution in respect of a notification published in the Gazette showing Ujjain as a Constituency reserved for the scheduled castes made in pursuance of sub-section (1) of S. 10 of the Delimitation commission Act regarding the proposals of the delimitation commission for the delimitation of parliamentary and Assembly constituencies in the state of madhya pradesh and after considering all the objections and suggestions, held:

'It will be noted from the above that it was the intention of the legislature that every order under Ss. 8 and 9 after publication is to have the force of law and not to be made the subject matter of controversy in any Court. In other words, parliament by enacting S. 10(2) wanted to make it clear that orders passed under Ss. 8 and 9 were to be treated as having the binding force of law and not mere administrative directions. This is further reinforced by sub-section (4) of S. 10 according to which the readjustment of representation of the several territorial constituencies in the House of the people and the delimitation of those constituencies provided for in any such order (i.e. Under S. 8 or S. 9) was to apply in relation to every election to the House held after the publication of the order in the Gazette of India and these provisions contained inthe order were to supersede all provisions relating to such representation and delimitation contained in the Representation of the people Act, 1950 and the Delimitation of parliamentary and Assembly constituencies order, 1961. In effect, this means the complete effecemetn of all provisions of this nature which were in force before the passing of the orders under Ss. 8 and 9 and only such orders were to hold the field. Therefore although the impugned notification was not a statute passed by parliament, it was a law relating to the delimitation of constituencies made under art. 327 of the Constitution'.

Further held:

'In this case we are not faced with that difficulty because the Constitution itself provides under art. 329(a) that any law relating to the delimitation of constituencies etc. Made or purporting to be made under articles 327 shall not be called in question in any Court. Therefore an order under S. 8 or S. 9 and published under S. 10(1) would not be saved merely because of the use of the expression 'shall not be called in question in any Court'. But if by the publication of the order in the Gazette of India it is to be treated as law made under Art. 327, Art 329 would prevent any investigation by any Court of law'.

Also held:

'In our view therefore the objection to the delimitation of constituencies could only 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 indefinietly 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 Sec. 10(1) were to be treated as law which was not to be questioned in any Court.

It is true that an order under S. 8 or S. 9 published u/s. 10(1) is not part of an Act of parliament, but its effect is to be the same'.

And further held:

'Similarly it may be said here that once the delimitation commission has made orders under Ss. 8 and 9, they have been published u/s. 10(1) the orders are to have the same effect as if they were law made by parliament itself'.

14. Chinnappa Reddy J., as he then was, in a common judgment in W.P. Nos. 1980 and 1985 of 1975 wherein the situation was analogous to the case on hand , viz the notification had been published u/s. 10(2) of the Delimitation Act after following the due procedure under the preceding sections including Ss. 7 and 8 of the said Act in respect of a general constituency later after considering the objections and suggestions called for in respect of the proposals, reconstituted the general constituency into a reserved constituency for scheduled Tribes though the said constituency was not so named in the proposal made earlier by the commission held: 'the submission of sri Chowdary that the decision of the Delimitation commission was arbitrary requires to be considered now. Sri Chowdary argued that the draft proposals the objections and the suggestions which were required to be considered by the Delimitation commission did not contain a whisper that madakasira constituency should cease to be a contituency reserved for the scheduled castes and that it should be made a general constituency. If that was so, argued sri Chowdary the decision of the commission must be held to be based on unknown extraneous considerations. It is true that madakasira constituency has the highest percentage of population in Anantapur district. It is true that in thedraft proposals the Delimitation commission proposed to notify Madakasira constituency should be a constituency reserved for the scheduled castes, no representation was received suggesting that madakasira constituency should be a general constituency and not a constituency reserved for the scheduled castes. The only representation received in regard to the reservation of constituencies for the scheduled castes was that of Srimati Lakshmi Devi But she made no suggestion about the Madakasira constituency she confined herself to the suggestion that instead of singanamala constituency, Kalyandurg constituency should be reserved for the scheduled castes. It is therefore clear that the Delimitation commission did not base its conclusion either on the draft proposals or on the objections and suggestions received by it. I am not, however prepared to say that the consideration of the Delimitation commission should be confined to the draft proposals, objections and suggestions. It will be open to the Delimitation commission o take into account any consideration which may suggest itself to them and which is relevant having regard to the provisions of the Constitution and the provisions of the Delimitation commission. In a case where the Delimitation commission's decision was not based on the draft proposals, objections and suggestions I would have required the commission, if it was competent for me to do so, to inform the Court about the considerations which went into its decision. But, I am afraid, I cannot do so because of my constitutional incompetence. This at once takes me to the formidable objection raised by the respondents. I have considered the several arguments advanced by the learned counsel in this case, as the learned counsel wanted all his arguments to be dealt with in case the matter was taken up to the Supreme Court.

The objection of the respondents which in fact, goes to the root of the matter is that the jurisdiction of this Court is taken away by art. 329(a) of the Constitution and section 10(2) of the Delimitation Act. Section 10(2) by itself cannot indeed bar the jurisdiction of the Court under art. 226 of theconstitution. Supervisory power given to the Court under art. 226 of the Constitution supervisory power given to the Court under art. 226 cannot be abrideged by a parliamentary enactment. Notwithstanding S. 10(2) of the Delimitation Act, but for the provisions of art 329(a) of the Constitution the decision of the Delimitation commission would be subject to judicial review of the High Court under art. 226 in the same manner as the decision of any other statutory authority. It should be liable to be questioned on the ground of mala fides. On the ground that irrelevant considerations have been taken into account on the ground that relevant considerations have been excluded on the ground of arbitrariness, on the ground of failure to observe principles of natural justice, etc, But in my view, the bar of Art. 329(a) is insurmountable. Article 329(a) is as follows:.........

Article 327 provides that parliament may by law make provision with respect to all matters relating to or in conncetion with, elections to parliament and state legislatures including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due Constitution of the house or houses of parliament and state legislature . the delimitation Act, 1972 is a law made by parliament in connection with the delimitation of constituencies the validity of the delimitation Act cannot be called in question in view of art. 329(a) That much was conceded by Sri chowdary. Sri chowdary. Also conceded that if the allotment of seats to the constituencies had been made by parliament itself such allotment could not be called in question in any Court in view of Art 329(a). He however, argued that where allotment of seats was made not by parliament but by an authority constituted by parliament under a law made by parliament, such allotment was not protected by art. 329(a) and, therefore it could be challenged in a proceeding under Art. 226 of the Constitution just as any other decision of a statutory authority. Though the argument is plausible, I do not think such was either the intention of the constitution-makers or that it flows from the language of arts. 327 and 329(a). Article 329(a) prohibits a Court from enquiring into the allotment of seats to constituencies made or purporting to be made under art. 327. Article 327 empowered parliament to make law in connection with the dlimitation of constituencies. When Art. 329(a) referes to allotment of seats made or purporting to be made under Art. 327 surely the reference must be understood to mean the allotment of seats made or purported to be made according to the law made by parliament in connection with the delimitation of constituencies as provided by Art. 327. That is a reasonable construction a construction which will not frustrate the object of art. 329 which is to prohibit enquiry into allotment of seats by any Court'.

15. W.A. Nos. 934 and 935 of 1975 preferred against the judgment of chinnappa Reddy J. In the aforesaid two writ petitions also affirmed the same.

16. In W.P. No. 2445 of 1978 filed in the High Court of karnataka this very notification mutatis mutandis published in the Karnataka Gazette was unsuccessfully challenged, as the Court in fact, dismissed at the admission stage itself holding as under:

'In view of the aforesaid bar created by Article 329 of the Constitution this Court cannot entertain this writ petition in which delimitation of parliamentary and Assembly constituencies order 1976, as amended by the impugned notification is challenged.

Accordingly the writ petition is rejected'. Appeal against the same also met with the same fate.

17. It is not in dispute that the impugned notification dated 24-1-1978 of the Election commission reserving '10-salur' constituency for scheduled Tribes and containing orders under Cl. (D) of S. 6 (1) of the Act, causing necessary amendments in the Delimitation of parliamentary and Assembly constituencies order, 1976 has been published in the Gazette of India as well as in the official Gazette of the state of Andhra pradesh before the filing of these writ petitions and so it has attained the force of law u/s. 8 (2) of the Act. 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 u/s. 6 of the Act are published in the official Gazettes, they could no longer be reagitated in a Court of law, the reason being that if the said orders are not to be treated as final, the effect could be that any voter, if he so wished, can hold up an election indefinitely by questioning the delimitation of the constituencies from Court to Court.

18. The next aspect with which we are concerned is whether this public is within the meaning of art. 327 of the constitution.or not.

19. Provisions of Ss. 6 (3), 8 (1) and (2) of the Act are the same as the provisions enacted in Ss. 9(2), 10 (1) and (2) respectively of the Delimitation Act. The decisions of the Supreme Court as well as this Court are with reference to Ss. 9 and 10 of the Delimitation Act, Wherein it was held that the action of the Delimitation commission made or purported to have been made under Art. 327 or art. 328 as the case may be, cannot be investigated by the courts in view of the bar created u/Art. 329(a) of the Constitution.

20. If that be so, they are equally applicable to the decision of the Election commission arrived at under Ss. 6 and 8 of the Act. Merely because the machinery in case of Delimitation Act is the Delimitation commission; Whereas in case of the Act, it is the election commission. It should not make any difference. The difference, if any, is in the form rather than in substance because the Delimitation commission comprises three members, two of whom should be either the retired Supreme Court Judges or High Court judges and the chief Election commissioner as ex-officio: whereas the Election commission is composed of only one person, who is the election commissioner himself. The Election commission is the creature of the Constitution and so the importance or significance should not in any way be undermined. Therefore, any decision in regard to the delimitation of constituencies or any matter in connection therewith made by the Election commission under the Act, must receive the same recognition as that of the decision taken by the Delimitation commission. If that be so we see no good ground for arriving at an adjudication other than this. The decision of the Election commission herein as notified by gazetting it under sections 8 of the Act, which is under challenge, cannot be investigated by this Court as it has been done u/Art. 327 of the Constitution in view of the bar of art. 329(a).

21. The entire gamut of procedure followed by the Election commission culminating in gazetting the notification u/s. 8 (1) of the Act, is nothing but allotting a seat to such reserved constituency as is obvious from the purpose of publishing the proposals under S. 6 (3) which is to effect necessary amendments to the Delimitation of parliamentary and Assembly constituencies order and while doing so, it shall have regard to the provisioons of Cls. (C) and (d) of S. 9(1) of the Delimitation Act, 1972 which in explicit terms provide that while readjusting the seats and delimiting the constituencies wherein a seat is reserved for scheduled Tribes, it shall as far as practicable be located in areas where the proportion of their population to the total is the largest hence the totality of the circumstances would positively indicate that it is nothing but delimitation and consequential allotement of a seat to the scheduled Tribes.

22. It is quite manifest that while allotting the seat to the scheduled Tribes in the case on hand the commission considered Achampet constituency being the largest insofar as the scheduled Tribe population was concerned to be reserved for scheduled Tribes. But, they were impressed as it is made clear from the record produced before us by the learned standing counsel, by the suggestions from the representatives of mahaboobnagar District to the effect that in achampet constituency no doubt the S.T. population was the largest in comparison with other constituencies concerned but since achampet in mahaboobnagar district commanded the highest population of scheduled castes constituency and instead, salur constituency, which was the next highest after 15 constituencies, in the population of S.Ts, may be delimited as S. T. Constituency We may usefully extract the statement showing the particulars of Assembly constituencies in the descending order of concentration of scheduled Tribes in the state of Andhra pradesh which has been furnished to us as an annexure to the counter filed by the election commission.

Total population : 43,502,708S.T. Population : 2,226,086(1,657,657)S.T. Proportion to : 0512Total population (.0381)_____________________________________________________________________________________Sl. No. Name of Sl. No. & name TotalS.T. population percentage of district of assembly populationST to total const. population._____________________________________________________________________________________1. Visakhapatnam 2. Khammam3. East Godavari4. Khammam5. Visakhapatnam6. SriKakulam7. Nalgonda8. Adilabad9. Khammam10. Adilabad11. Mahbubnagar 188-Achampest (S.C) 147,992 55,600 37.5712. Srikakulam13. Visakhapatnam14. Warangal.15. West Godavari16. Srikakulam 10-Salur 129,006 29,835 23.1317. Adilabad18. Adilabad19. Khammam ___________________________________________________________________________________

Now it is difficult to fathom the reason of the Election Commission. Since in all the scheduled Tribe constituencies in view of the revised population figures were to be enhanced from 11 to 15 and since salur happened to the immediate next commanding the highest population of S. Ts., being the 16th one in the order if descendency, very reasonably the election commission while deleting the Achampet constituency for the scheduled Tribes. We therefore do not find any irrationally much less arbitrariness or mala fides in selecting salur as the scheduled Tribe constituency.

23. Hence it is quite clear from the statement showing the particulars of assembly constituencies, extracted above, that the 16th constituency was salur commanding the next highest scheduled Tribe population and inasmuch as achampet was deleted, while retaining it as S. C. Constituency, salur was taken in as reserved for S. Ts. This to our mind is both rational as well as reasonable. Viewed from the aspect of merits also, it requires no interference either.

24. The next argument of the learned counsel for the petitioners is that the procedure laid down under section 6, in particular under sub-section (3) of S. 6 haas not been followed and therefore the entire superstructure built on the base must be voided . This argument in turn is based on the ground that in the original proposals made by the commission, salur was not mentioned as one of the constituencies to be reserved for scheduled Tribes. Therefore, any declaration of a constituency, not mentioned in the proposals to be reserved for S. Ts. Would militate against the proposals, inview of the words 'objections and suggestions' used in sub-section (3) of S. 6 and so will vitiate the prehend, is not well founded. The words 'objections and suggestions' which on fair construction connote not only objections and suggestions with regard to the proposals made, but also could be outside the orbit andindependent of the proposals, and so need not necessarily be confined to the ambit of the proposals. This, in our judgment is the fair and reasonable interpretation to be placed upon the words 'objections and suggestions' as occurring in S. 6 (3) of the Act. The construction sought to be placed upon these words by the learned counsel for the petitioners, if accepted, would not only rob the language of its objective and purpose, but would be doing violence to the same.

In fact this view of ours is reinforced by the Judgment of chinnappa Reddy, J., in W.P. Nos. 1980 and 1985 of 1975, referred to above, wherein the Delimitation commission subsequent to the delimitation Act, 1972, and on the basis of 1971 census, wanted to delimit by reserving madekasira constituency in Anantapur District as reserved for scheduled castes; instead ultimately Kalyandurg constituency was notified as reserved for S. Cs. A constituency which was not at all initially mentioned in the proposals, yet the same was upheld and was confirmed by the division Bench in appeal as well. We are therefore of the firm view that the procedure laid down under sub-section (3) of S. 6 has been duly followed by the commission in arriving at its decision culminating in the impugned notification and does not suffer from arbitrariness or mala fides.

25. In the instant case the provisions of sec. 3 (2) of the Act puts orders u/s. 6 as published u/s. 8 (1) in the same street as a law made by parliament itself, which as we have already said has been done under Article 327 and the same cannot be questioned much less investigated by this Court even under art. 226 of the Constitution in view of the bar under art. 329(a)

26. In sum - (1) Any delimitation or readjustment and consequential allotement of seat made in the exercise of the powers conferred under sub-section (3) of S. 6 of the scheduled castes and scheduled Tribes orders (amendment) Act, 1976 and consequential amendment made in the Delimitation of parliamentary and assembly constituencies order, 1976 by duly publishing it under sec. 8(1) of the Act, will have the force of law.

(2) If the amendment attaining the force of law as aforementioned, made in the delimitation of parliamentary and Assembly constituencies order in exercise of the powers under S. 6 of the Act and published under S. 8 (1) of the Act, is the one under Art. 327 or art. 328 of the Constitution, then the same cannot be questioned as art. 329(a) bars the Court to exercise its Jurisdiction even under art. 226 of the Constitution.

(3) In our undoubted judgment the declaration of '10-solur' constitutuency by adopting the procedure under S. 6 (30 of the Act, is nothing but allotment of a seat reserving it to the scheduled Tribes within the meaning of art. 327 of the Constitution and therefore the same cannot be questioned nor could be investigated by this Court under art. 226 of the Constitution.

27. In the result, the two writ petitions are dismissed. No costs.

28. Petitions dismissed.


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