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Md. Abdul Gani and ors. Vs. Election Commission and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata High Court
Decided On
Case NumberCivil Order No. 14293 (W) of 1984
Judge
Reported inAIR1986Cal124
ActsRepresentation of the People Act, 1950 - Section 9 and 9(1); ;Delimitation Act, 1972 - Section 11 and 11(1); ;Delimitation of Parliamentary and Assembly Constituency Order, 1976; ;Constitution of India - Article 82; ;Constitution of India (42nd Amendment) Act, 1976
AppellantMd. Abdul Gani and ors.
RespondentElection Commission and anr.
Appellant AdvocateS.C. Bose, ;Amal Ganguly, ;L.K. Mukherjee and ;Debol Banerjee, Advs.
Respondent AdvocateAdv. General, ;J.N. Haldar, Adv. for No. 1, ;Dilip Sen, ;Rajat Ghosh and ;Amjad Ali, Advs. for No. 2
DispositionApplication allowed
Cases ReferredMeghraj v. Delimitation Commission
Excerpt:
- .....secretariat of the election commission of india. by and under the said two several intimations the election commission expressed its inability to comply with the requisition of the writ petitioners and/or their representative in the matter of inclusion of 16 villages as more fully detailed in the writ petition within the district of malda as against existing attachment with the district of murshidabad in so far as the electoral role of parliamentary and assembly constituencies are concerned.2. by, the intimation dt. 23rd mar., 1984 the election commission stated that the area of newly formed gram panchayat in malda district will continue to form part of assembly constituency. by other intimation dt. 2nd april, 1982 the election commission stated that the extent of a constituency does not.....
Judgment:
ORDER

Umesh Chandra Banerjee, J.

1. This writ petition is directed against two several letters/intimations dt. 23rd March, 1984 and 2nd April, 1982 issued by the Secretariat of the Election Commission of India. By and under the said two several intimations the Election Commission expressed its inability to comply with the requisition of the writ petitioners and/or their representative in the matter of inclusion of 16 villages as more fully detailed in the writ petition within the District of Malda as against existing attachment with the District of Murshidabad in so far as the Electoral role of Parliamentary and Assembly Constituencies are concerned.

2. By, the intimation dt. 23rd Mar., 1984 the Election Commission stated that the area of newly formed Gram Panchayat in Malda District will continue to form part of Assembly Constituency. By other intimation dt. 2nd April, 1982 the Election Commission stated that the extent of a Constituency does not automatically change consequent upon the change in the administrative units. The Election Commission further added that the procedure described in Section 9, Representation of the People Act, 1950, is required to be followed and till that is done the extent of Constituency is to be read as shown in the Schedules for the State of West Bengal in the Delimitation of Parliamentary and Assembly Constituency's Order, 1976.

3. The principal contention of the writ petitioners is that the Election Commission is only to perform its duty envisaged under Section 9(1)(b), Representation of the People Act, 1950. Section 9(1)(b) of the said Act of 1950 Act, reads as follows : --

9. Power of Election Commission to maintain Delimitation Order up to date -- (1) The Election Commission may, from time to time, by notification published in the Gazette of India and in the Official Gazette of the State concerned -

(a) .....

(b) where the boundaries or name of any district or any territorial division mentioned in the Order are or is altered, make such amendments as appear to it to be necessary or expedient for the Order up to date.

4. In order to appreciate the contention of the writ petitioners Section 4(5) and Section 7(3) of the said Act of 1950 are also to be considered. The said two provisions are set out hereinbelow for convenience sake.

4. Filling of seats in the House of the People and parliamentary constituencies -- (1) .......

(5) Save as provided in Sub-section (4), the extent of all parliamentary constituencies in each of the States of Haryana, Punjab and Himachal Pradesh shall be as determined by the order of the Delimitation Commission made under the provisions of the Punjab Reorganisation Act, 1966, and the extent of all other parliamentary constituencies shall be as determined by the orders of the Delimitation Commission made under the provisions of the Delimitation Commission Act, 1962, or, as the case may be under the provisions of the Government of Union Territories Act, 1963.

7. Total number of seats in Legislative Assemblies and Assembly constituencies -

(1) .....

(3) The extent of each assembly constituency in the State of Nagaland shall be as determined by the order of the Election Commission made under the provisions of the State of Nagaland Act, 1962; and the extent of each assembly constituency in each of the States of Haryana, Punjab and Himachal Pradesh shall be as determined by the order of the Delimitation Commission made under the provisions of the Punjab Reorganisation Act, 1966, and the extent of each assembly constituency in any other State shall be as determined by the order of the Delimitation Commission made under the provisions of the Delimitation Commission Act, 1962, or, as the case may be, under the provisions of the Government of Union Territories Act, 1963.

5. The Learned Advocate General appearing for the Election Commission contended that by reason of express provisions as contemplated in Section 4(5) and Section 7(3) the question of Election Commission having its power to declare or the Court issuing any writ as prayed for in the writ petition does not and cannot arise. Mr. Advocate General contended that Election Commission has no power to delete or rectify the extent of territorial constituency either of the State Assembly or for parliamentary constituency and it is the Delimitation Commission only that has to discharge the said function. Direction otherwise by this Court would amount to conferment of power which the statute has bestowed on to the Delimitation Commission. The Learned Advocate General contended that Section 9(1)(b) is subject to the provisions of Sections 4(5) and Section 7(3) of 1950 Act Learned Advocate General further submitted that the Delimitation Commission by Order No. 45 dt. 30th June, 1975 read with Order dt. 1-8-1975, as given in the note to Order 45 has described the boundaries, extent, the name and territorial division of all 42 parliamentary constituencies of West Bengal in Table 'A', of Order 45 and the boundaries, the extent, the name and the territorial division of all the 294 Assembly Constituencies of West Bengal have been made by the Delimitation Commission by its Order 45 as given in Table 'B' of that Order.

6. It is further contended on behalf of the Election Commission that the territorial division, the extent, the name and the boundaries of the Constituencies are to be determined and have been determined by the Delimitation Commission following the provisions of Articles 81(2)(b), 81(3), 82, 172 and 170(3) of the Constitution and the provisions of Section 8(1) or 8(3) or 9(1)(b) of the 1950 Act are subject to the aforesaid provisions of the Constitution apart from Sections 4(5) and Section 7(3), Representation of the People Act, 1950.

7. The other contention of the learned Advocate General appearing for Election Commission is that under Section 11(1)(b), Delimitation Act, there exists a definite prohibition for the Election Commission to amend or alter or vary the boundaries or areas or extent of any constituency made by the Delimitation Commission acting under the Delimitation Act, 1972. The delimitation of parliamentary and assembly constituencies as envisaged in Articles 81(2), 81(3), 82, 170(2) and 170(3) cannot, in any way, be touched without amendment of these Articles of the Constitution and the provisions of Sections 4(5), 7(3), 8(1), 9(1)(b), Representation of the People Act, 1950 as well as the provisions of Section 11(1)(b), Delimitation Act, 1972, are all subject to the aforesaid provisions of the Constitution and cannot in any way be touched or infringed or amended or varied either by the Election Commission or by the Delimitation Commission and as such the ratio of the population in each Constituency or the division into territorial constituency keeping the ratio of the population of each constituency and the number of seats allotted to the States to keep uniform through out the States as envisaged by the aforesaid provisions of the Constitution cannot be amended or varied or altered by any authority or body either acting under the Representation of the People Act, 1950, or the Delimitation Act, 1972.

8. The Learned Advocate General's further contention is that the order made by the Delimitation Commission are laws within the meaning of Article 327 and such order of the Delimitation Commission having the force of Law within the meaning of Article 327 of the Constitution cannot be called in question in view of Article 329(a) of the Constitution. Similarly the orders made under Representation of the People Act, 1950, are also laws within the meaning of Article 327 of the Constitution and the same cannot be called in question in any Court in view of the Article 329(a) of the Constitution. In this context reference was made to the case of Meghraj v. Delimitation Commission reported in : [1967]1SCR400 .

9. Apart from the bar of Section 4(5) and Section 7(3) of the 1950 Act and the Constitutional bar as referred to above, the learned Advocate General also submitted that the second portion of Section 11(1)(b), Delimitation Act, 1972, is in any event a complete bar in the matter of issuance of a Notification under Section 9(1)(b), Representation of the People Act, 1950. Strong reliance was placed in regard to the language of Sub-section (b) of Section 11 namely '..... so, however, that the boundaries or areas or extent of any constituency shall not be changed by any such Notification.'

10. Mr. D. K. Sen appearing for the Central Government in his usual fairness submitted that the Central Government neither supports the writ petitioners nor opposes the prayer and his duty towards the Court is akin to that of an amicus curiae. Mr. Sen contended that while it is true that normally the extent of assembly or parliamentary constituency shall be determined by only the Delimitation Commission but the powers of Election Commission in regard to amendments to such an order in the event of alteration of boundary or alteration of territorial division has been expressly reserved under Section 9(1)(b) of the 1950 Act read with Section 11(1)(b), Delimitation Act, 1972. Mr. S. C. Bose, appearing for the writ petitioners, also contended that the Election Commission's refusal to amend the order of 1976 is wholly illegal and wrongful. Mr. Bose submitted that there is binding obligation on the part of the Election Commission to effect amendments by reason of the changed circumstances.

11. There is no dispute in regard to the fact that the river Ganges has changed its course by reason whereof 16 villages which were originally within the Murshidabad District are now being treated as pan of Malda District by the West Bengal Government. The notification issued by the Governor of West Bengal amply proves the same. It further appears that during the Panchayat Election, West Bengal in the year 1983 the aforesaid 16 villages were treated as part of District of Malda and not included within the District of Murshidabad.

In my view reference to Sections 4(5) and 7(3) of the 1950 Act is not very apposite in the present context. The writ petitioners have not prayed for determination of the extent of any assembly or Parliamentary Constituency but prayed for amendment to the order of the Delimitation Commission by reason of the alteration of the boundary as effected by the State Government. The expression 'and or is altered' refers to the boundary or territorial division.

12. Considering the aforesaid there cannot be said to be any bar in the matter of effecting amendment if an alteration had already been effected in so far as the Representation of the People Act, 1950, is concerned.

13. Question therefore arises as to whether Section 11(1)(b) imposes any fetter to the exercise of the power of the Election Commission in the matter of amending the order. The second part of Section 11(1)(b) restricts the extension of the boundaries of the area of the Constituency by the Election Commission itself. The first part of Section 11(1)(b) confers a power unto the Election Commission to make amendment as it may deem necessary or expedient in the event of alteration of name of any district or territorial division. The function of the Election Commission is to bring up to date the Delimitation of Parliamentary and Assembly Order, 1976 by taking cognizance of any alteration as made with regard to the boundaries or name of any district or territorial division already effected by appropriate authority. While exercising its powers under the first part of Section 9(1)(b) the Election Commission does not and cannot by itself alter the existing boundaries of any district or name of any district or territorial division by reason of latter part of Section 11(1)(b), Delimitation Act. In other words the Election Commission itself cannot originate the function of altering the boundaries of a district. All that Section 9(1)(b) of the Act of 1950 and the first part of Section 11(1)(b) of the Act of 1972 empowers the Election Commission is to take note of only the changed circumstances and to notify such change by way of an amendment to the Delimitation of Assembly and Parliament Constituency Order. Admittedly, the State Government has already issued a notification to include the sixteen villages named in Para 2 of the petition within the district of Mafda. Powers of the State Government in regard to bifurcation of districts has not been questioned. On the contrary both the Union of India and the Election Commission accepted the said Division. In that view of the matter if an appropriate authority has already effected an alteration it is incumbent in my view on the part of the Election Commission to give effect to such alteration by way of an amendment to the said order above. In my opinion any other interpretation of Section 11(1)(b) would be in violation of the true intent and purpose of the Legislature in engrafting the first portion of Section 11(1)(b) into the statute book. It is one of the basic principles of construction and interpretation of statute that two parts of a statute are to be read harmoniously so as to bring a conciliation between the provision of a statute. Interpretation to be given so as to give full effect of the section which the Legislature intended to give. Any other construction in my view would render either of the two parts of Section 11(1)(b) nugatory and otiose.

14. The Act of 1950 was in existence at the time when the Delimitation Act of 1972 was engrafted in the statute book. If there was any contra-intention of the legislature the same would have found place in a different language rather than as is expressed in Section 11(1)(b). Powers have been conferred unto the Election Commission and in my view there is no conflict between the first and second limbs of Section 11(1)(b) of the Act, 1972.

15. Further in so far as the provisions of the Delimitation Act, 1972, are concerned the Parliament after narrating the function and powers and other ancillary matters connected therewith has expressly reserved power of the Election Commission in no uncertain terms and considering the view I have taken in regard to the second limb of Section 11(1)(b) there cannot be said to be any fetter of whatsoever nature. There is no curtailment of power in the matterof amending an order passed by the Delimitation Commission. It is also to be noticed that sufficient safeguards have also been engrafted in the statute in regard to the exercise of power by the Election Commission as envisaged in Section 11(2) of Act of 1972.

16. Since there is no factual dispute and considering the expression used by the legislature viz. 'necessary and expedient' in my view the Election Commission is under statutory obligation to bring the order up to date in the event of a contingency that has happened in the facts of this case. Expression 'expedient' as per Black's Law Dictionary means apt and suitable to order appropriate..... The Supreme Court also inthe case of State of Gujarat v. Jamna Das G. Pabri reported in : [1975]2SCR330 has also adopted more or less the same meaning referred to above.

17. Reference to the decision of the Supreme Court in the case of Meghraj v. Delimitation Commission reported in : [1967]1SCR400 in my view does not have any relevance in the present context and more so by reason of the view I have taken.

18. The last contention of the learned Advocate General in regard to the applicability of Article 81, 82 or 327 of the Constitution in my view cannot also be accepted, Article 82 cannot be said to be offended, neither the third proviso, incorporated by the Constitution 42nd Amendment Act 1976, has any effect if Section 9(1)(b) of the 1950 Act is given effect to by the Election Commission.

19. In the view I have taken this application succeeds. Let a writ be issued as prayed for by the writ petitioners. There will be, however, no order as to costs.

20. Prayer for stay of operation of the order is rejected but the prayer for leave to appeal to Supreme Court is allowed under Article 132 of the Constitution inasmuch as certain constitutional issues have been raised by the learned Advocate General on behalf of the Election Commission.


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