Narain Singh & Anr Vs. State of Uttar Pradesh & Ors  INSC 1108 (10 September 1996)
S.C. (J) Sen, S.C. (J) Jeevan Reddy, B.P. (J) Sen,J.
is an appeal against an order passed by the Division Bench of the Allahabad
High court on 13.11.1995 whereby municipal elections in the State of Uttar Pradesh, which were scheduled to take place
from 17th November to 20th
November, 1995 were
cancelled and/or postponed. Anugrah Narain Singh, who is a former member of the
Legislative Assembly of the State of Uttar Pradesh, and Mrs. Rashid Khan, a candidate for the post of Mayor, Allahabad, are the appellants herein.
municipal election had taken place in the State of Uttar Pradesh for the last ten years. The
appellant No. 1 moved a writ petition in the Allahabad High Court praying for a
direction upon the State Government to hold elections of the Municipal
Corporations by 31st
May, 1994. The
petition succeeded. The Allahabad High Court directed the State of Uttar Pradesh to hold the elections of the
Municipal Corporations by 31st July, 1995.
On the prayer of the Government, the time was extended till 31st November, 1995 with specific direction to conclude
the election by that time. On 11th October, 1995 a notification was issued for holding election for all town areas and
Municipal Corporations in the State of Uttar Pradesh. 16th to 20th October of 1995 were the dates within which
filing of nominations had to be completed and 24th October, 1995 was fixed as the last date of withdrawal. Voting was to
take place in different stages in different areas of the State beginning on
17th and concluding on 20th of November, 1995.
notification dated 11th
October, 1995 was
amended by a further notification dated 13th October, 1995 by which only the date of
withdrawal of the nominations was extended.
persons by a Writ Petition (Civil Miscellaneous Writ Petition No. 29614 of
1995) filed in the Allahabad High Court, challenged the notifications for
holding the municipal elections in the State. Fifteen similar petitions were
also filed before the Lucknow Bench. The prayers in all these writ petitions
mainly were that in view of the defects in the electoral rolls and delimitation
of constituencies (wards) and also on the ground of arbitrary reservation of
constituencies for women, Scheduled Castes, Scheduled Tribes and Backward
Classes, the process of election should be postponed. These petitions were
filed as soon as the notification for holding elections dated 11th/13th
October, 1995 was issued. The Lucknow Bench of the Allahabad High Court
dismissed the petitions on the ground that in view of the bar imposed by
Article 243-ZG of the Constitution, the writ jurisdiction of the Court could
not be invoked to stall the election process.
judgment of the Lucknow Bench of the High Court (S.H.A. Raza and A.S. Gill, JJ)
in writ petition No. 2997 of 1995 and the other connected cases was placed
before the Allahabad High Court in course of hearing of this case, but U.P.
Singh and I.M. Qudussi, JJ. passed the impugned order stopping the election
process regardless of the judgment and order passed by the Lucknow Bench of the
High Court. This was improper, if the Division Bench of the sitting at Allahabad was of the view that Lucknow Bench
had erred in dismissing the writ petition challenging the holding of the
municipal elections, the matter should have been referred to a larger Bench. A
peculiar situation has come about.
to the Lucknow Bench of the High Court, the writ petitions challenging the
municipal elections were not maintainable and elections should take place as
scheduled whereas another Division Bench of the Allahabad High Court has taken
a contrary view and has directed that the elections should not be held
according to the schedule.
important feature of this case, which was ignored by the High Court, was that
the process of reservations for various wards and delimitations of
constituencies had been completed before June, 1995. There was ample
opportunity under the Act to raise objections before finalisation of the
delimitation process. Section 32 of the Uttar Pradesh Municipal Corporations Adhiniyam,
1959 (hereinafter referred to as 'the U.P. Act') has empowered the State
Government divide the municipal areas into wards on the basis of the population
and determine the number of wards into which the municipal area should be
divided. The State Government may also determine the number of seats to be
reserved for the Scheduled Castes, Scheduled Tribes, Backward Classes and the
women. The State Government is required to issue an order for this purpose
which has to be published in the official Gazette for objections for a period
of not less than seven days. After considering the objections that may be
filled, the draft order may be amended, altered or modified. Whatever the State
Government does, after considering the objections, will be the final order.
That process has been gone through. If it is the case of the writ petitioners
that they filed objections to the draft orders and their objections were
overruled arbitrarily, they should have challenged it forthwith. In fact the
notifications of reservation of various wards and delimitation of
constituencies had been completed before June, 1995. After all these things
became final, the writ petitioners waited till 26th October, 1995 to file this
writ petition when the last date for withdrawal of nomination papers was over.
This writ petition should have been dismissed on the ground of laches only. At
a time when the election process was in full swing, huge expenditures had been
incurred by the candidates, the political parties and also the Government for
this purpose, some of the candidates had already been declared elected
unopposed, the Court decided to intervene and stop the elections.
On 15th November, 1995, an application seeking permission
to file the Special Leave Petition was moved to this Court by the appellants
who were not parties to the writ petitions in the Court below. On 16th
November, 1995 the permission was given and the following order was passed :-
"At the outset, we may record that the learned ASG appearing for the State
of Uttar Pradesh has stated that the Government of Uttar Pradesh has cancelled
the elections only because of and pursuant to the impugned judgment and not for
any other reason. The learned ASG has further stated that the Govt. of Uttar
Pradesh will abide by any orders that this Court may make in this matter.
hearing the counsel for the parties and after considerations the facts and
circumstances of the case, we are, prima facie, of the opinion that there are
no sufficient grounds for canceling the elections.
the following directions are made :
elections scheduled on 20th & 26th of November, 1995 for the offices of
Mayor shall go on as scheduled.
elections scheduled to be held on 20th November 1995 for the wards in the 9 municipal
corporations shall go on as scheduled.
elections for wards scheduled on 22nd Nov., 1995 for Nagar Palikas (446 in number)
shall also go on as scheduled.
elections for the wards to the 2 municipal corporations scheduled on 26th November,1995 shall also go on as scheduled.
far as the polling, which was to be held on 17th Nov., 1995, i.e. tomorrow for the 224 Nagar Palikas, is concerned, it
is not practicable or possible to hold the elections tomorrow, i.e. 17th Nov., 1995. In consultation with the learned
counsel for the State Election Commission, we direct that these elections shall
stand postponed to and be held on 24th November, 1995.
is equally clear that the results of these elections shall be subject to the
orders that may be passed in this matter.
is made clear that when we have said in the above directions that elections
shall be conducted as scheduled, it means that the elections shall be held and
concluded as notified and results declared.
judgment of the High Court impugned herein is stayed subject to the above
17th November, 1995, on a prayer made on behalf of the State of U.P., a further
order was passed to the following effect :- "Learned counsel for the State
of U.P. states that in so far as polling which was to take place today and
which is now postponed to 24.11.1995 is concerned, the date of counting should
be correspondingly postponed. This is implicit in the order we have passed
yesterday. In any event with a view to obviate any room for controversy we
direct that it shall be open to the State Election Commission to notify fresh
date of counting in so far as the aforesaid postponed polling is
concerned." We have been informed that election has taken place and
counting has also been completed.
question that came up for decision before the Allahabad High Court has been
state in the judgment in the following words :- "....... the common
question raised in all these petitions is as to whether in terms of Article
243-ZG of the Constitution there is complete and absolute bar in considering
any matter relating to Municipal Election on any ground whatsoever after the
publication of the notification for holding Municipal Election." The
answer must be emphatically in the affirmative. The bar imposed by Article
243-ZG is two-fold. Validity of laws relating to delimitation and allotment of
seats made under Article 243-ZA cannot be questioned in any Court. No election
to a Municipality can be questioned except by an election petition. Moreover,it
is well settled by now that if the election is immanent or well underway, 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. There were
ten petitioners in the main writ petition and several others in connected writ
petitions, who had questioned the fairness of the action of the authorities
concerned in publication of the notifications dated 11th October, 1995 and 13th
October, 1995 pursuant
to which the elections to the Municipal Corporations throughout the State of U.P. were to be held.
State Government and also the Election Commission took the stand before the
High Court that after the publication of the notification for holding Municipal
Elections, the High Court under Article 226 of the Constitution could not
interfere with the election process. On the other hand, the writ-petitioners'
contention was that the election was being held in a farcical manner and the
confidence of the people has been shaken in the electoral process and the
constitutional guarantee municipalities had been thrown to the winds. In this
situation, Article 243-ZG could not be treated as an absolute bar to doing
justice under Article 226 of the Constitution. The case of the writ petitioners
was that they were residents of different Nagar Nigams.
names had been duly entered as voters in the electoral rolls of their wards.
They were very keen to contest the elections for various posts including the
post of Chairperson of the Nagar Nigam. However, they became ineligible on
account of allocation and reservation of wards and the municipal areas from
which they wanted to contest.
case of the writ petitioners was that the erstwhile Nagar Mahapalikas were
established under the Uttar Pradesh Municipal Corporations Adhiniyam, 1959. The
Constitution (74th Amendment) Act, 1992 came into force on June 1, 1993.
this Amendment Act and Part IX-A, Articles 243-P to 243- ZG were inserted in
the Constitution. Consequent upon the 74th Amendment of the Constitution,
various amendments were made in the Uttar Pradesh Municipal Corporations Adhiniyam
to bring the Act in line with the constitutional amendments.
243-Q envisaged the constitution of Nagar Panchayats, Municipal Councils and
Municipal Corporations, etc, depending upon the density of the population, the
revenue generated for local administration, the percentage of employment in
non-agricultural activities, the economic importance or such other factors as
may be deemed fit. The validity of the process of the delimitation of the
constituencies that took place after the amendment of the U.P. Act and also the
reservations made in furtherance thereof and allocation of reserved seats in
the 11 municipal areas in the State of U.P., namely Allahabad, Agra, Aligarh, Bareilly,
Gorakhpur, Ghaziabad, Kanpur, Lucknow, Moradabad, Meerut and Varanasi, was
challenged by the writ petitioners. Basically, the challenges appears to be
about reservation of seats in favour of Scheduled Castes and Scheduled Tribes
and Backward Classes in the Municipal areas. It was argued before the High
Court and also before this Court that important safeguards of the Constitution
were overlooked when the dates of holding of the elections were announced.
are several reasons why these arguments of the writ petitioners should not have
been upheld. The High Court overlooked the fact that no municipal election had
been held in the State for nearly ten years and the dates of the elections were
fixed under the direction given by the High Court in another case. Importance
of holding elections at regular intervals for Panchayats, Municipal bodies or
Legislatures cannot be over-emphasised. If holding of elections is allowed to
be stalled on the complaint of a few individuals, then grave injustice will be
done to crores of other voters who have right to elect their representatives to
the local bodies. As a result of the order of the High Court, elections that
were going to be held to the local bodies after a long lapse of nearly ten
years were postponed indefinitely. It was pointed out by this Court in the case
of Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman, (1985) 4 SCC 689 at 703, that
"the fact that certain claims and objections are not finally disposed of,
even assuming that they are filed in accordance with law, cannot arrest the
process of election to the Legislature.
election has to be held on the basis of the electoral roll which is in force on
the last date for making nominations," The Court also quoted from its
order dated March 30, 1982 that "no High Court in the exercise of its
powers under Article 226 of the Constitution should pass any orders,interim or
otherwise, which has the tendency or effect of postponing an election, which is
reasonably imminent and in relation to which its writ jurisdiction is invoked.
The imminence of the electoral process is a factor which must guide and govern
the passing of orders in the exercise of the High Court's 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
High Courts must observe a self imposed limitations on their power to act under
Article 226, by refusing to pass orders or give directions which will
inevitably result in an indefinite postponement of elections to legislative
bodies, which are the very essence of the democratic foundation and functioning
of our Constitution.
this case, the High Court has ignored the fact that the electoral process was
well underway and was scheduled to be completed in less than ten days' time.
The High Court also failed to observe the self-imposed limitation as enjoined
by this Court in the case of Laxmi Charan Sen (supra).
Charan Sen's case, this Court was dealing with Part XV of the Constitution
which deals with preparation of electoral rolls for, and the conduct of, all
elections to Parliament, and to the Legislatures of different States and all
elections to the offices of the President and the Vice- President. We are in
this case, concerned with the elections to municipal bodies. But the principles
laid down in Laxmi Charan Sen's case will apply in full force to municipal
elections because various Articles dealing with holding of municipal elections
in Part IX-A of the Constitution are similarly worded. In fact, highest
importance has been attached to holding of panchayat as well as municipal
elections by the Constitution. Part IX and IX-A of the Constitution were
introduced by the Constitution (73rd Amendment) Act, 1992 and (74th Amendment)
Act, 1992. By these two Parts, it was intended to take democracy to the grassroot
level. Part IX deals with constitution of panchayats, composition of panchayats
and holding of regular elections to the panchayats. Article 243-O contains a
bar to interference by Court in electoral matters. This bar is similar to the
bar contained in Article 329 of the Constitution in Part XV, the implication of
which was explained by this Court in the case of Laxmi Charan Sen (supra).
IX-A of Constitution deals with the Municipalities and lays down that in every
State there shall be constituted
Municipal Council and
Municipal Corporation, in accordance with the provisions of Part IX-A of the
has been defined to mean 'an institution of self-government constituted under
Article 243-Q' and 'Municipal area' means "the territorial areas of a
Municipality as is notified by the Governor', Composition of Municipalities has
been dealt with in Article 243-R, which provides that all the seats in a
Municipality shall be filled by persons chosen by direct election from the
territorial constituencies in the Municipal area and for this purpose each
Municipal area shall be divided into territorial constituencies to be known as
wards. Article 243-S deals with the constitution and composition of Wards
Committees and provides that the Legislature of a State may pass suitable
legislation in respect of matters enumerated therein.
243-T deals with reservation of seats and Provides as under:- "Reservation
of seats, -
Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in
every Municipality and the number of seats so reserved shall bear, as nearly as
may be, the same proportion to the total number of seats to be filled by direct
election in that Municipality as the population of the Scheduled Castes in the
Municipal areas or of the Schedule Tribes in the Municipal Areas bears to the
population of that area and such sheets may be allotted by rotation to
different constituencies in a Municipality.
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,
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 Municipality shall be
reserved for women and such seats may be allotted by rotation to different
constituencies in a Municipality.
The offices of Chairpersons in the Municipalities 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,
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
Nothing in this Part shall prevent the Legislature of a State from making any
provision for reservation of seats in any Municipality or offices of
Chairpersons in the Municipalities in favour of backward class of
243-ZA provides that the superintendence, direction and control of the
preparation of electoral rolls for, and the conduct of, all elections to the
Municipalities shall be vested in the State Election Commission referred to in
Article 243-K. The Legislature of a State has been empowered to make laws
providing for all matters relating to, or in connection with, elections to the
Article 243-K, the superintendence, direction and control of the preparation of
electoral rolls for, and the conduct of, all elections to the Panchayats have
been vested in a State Election Commission consisting of a State Election
Commissioner to be appointed by the Governor.
243-ZF imposes a time limit of one year within which provisions of State Laws
relating to Municipalities, which were inconsistent with the provisions of
Part-IX had to be amended and brought in line with the amended provisions.
243-ZG is the subject-matter of debate in this case and lays down :-
"243-ZG, Bar to interference by courts in electoral matters,
Notwithstanding anything in this Constitution, :-
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-ZA shall not be called in question in any court;
election to any Municipality 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."
of the mandate contained in Article 243-ZF of the Constitution, U.P. Act 12 of
1994 was passed to bring the Uttar Pradesh Municipal Corporations Adhiniyam,
1959 in line with the newly added provisions of the Constitution in respect of Panchayats
and Municipalities, Section 4 of the U.P. Act provides that a Municipal
Corporation constituted under Article 243-Q(1) (c) of the Constitution shall be
a body corporate. It has been provided by Section 6 that the Corporation shall
consist of a Nagar Pramukh and Sabhasads whose number shall be such as the
State Government may, by notification in the official Gazette, fix but which
shall not be less than sixty and not more than one hundred and ten, in addition
to certain nominated members of the State Government. Section 6-A deals with
constitution and composition of wards committees. The provisions relevant for
the purpose of this case are as under :- "6-A Constitution and composition
of wards committees –
Each Wards Committee, constituted under clause (1) of Article 243-S of the
Constitution within the territorial area of a Corporation having a population
of three lakh or more, shall consist of ten wards.
The territorial area of Wards Committee shall consists of the territorial areas
of the wards comprised in such committee.
Each Wards Committee shall consist of
the Sabhasads representing the wards within the territorial area of the Wards
Such other members, not exceeding five, as may be nominated by the State
Government from amongst persons registered as electors within the territorial
area of the concerned Wards Committee who have special knowledge or experience
in municipal administrations." Section 7 deals with reservation of seats
is as under:- "7. Reservation of seats :- (1) In every Corporation, seats
will be reserved for the Scheduled Castes, the Scheduled Tribes and the
backward classes and the number of seats so reserved shall as nearly as may be,
bear the same proportion to the total number of seats to be filled by direct
election in the Corporation, as the population of the Scheduled Castes in the
municipal area or of the Scheduled Tribes in the Municipal area or of the
backward classes in the municipal area, bears to the total population of such
area and such seats may be allotted by rotation to different wards in a
Corporation in such order as may be prescribed by rules. Provided that the reservation
for the backward classes shall not exceed twenty seven per cent of the total
number of seats in a Corporation;
further that if the figures of population of the backward classes are not
available, their population may be determined by carrying out a survey in the
manner prescribed by rules.
(2) x x
x x x (3) Not less than one-third of the seats reserved under sub- section (1)
shall be reserved for the woman belonging to the Scheduled castes, the
Scheduled Tribes or the backward classes, as the case may be.
Not less than one-third of the total number of seats to be filled by direct
election in a Corporation, including the number of seats reserved under
sub-section (3) , shall be reserved for women and such seats may be allotted by
rotation to different wards in the Corporation in such order as may be
prescribed by rules.
The offices of the Nagar Pramukhs and the Upa Nagar Pramukhs of the
Corporations in the state shall be reserved for the Scheduled Castes, the
Scheduled Tribes and the backward classes and women in such manner as may be
prescribed by rules.
that if the office of the Nagar Pramukh of a Corporation is reserved, the
office of Upa Nagar Pramukh shall not be reserved.
The reservation of the seats and the offices under this section for the
Scheduled Castes and the Scheduled Tribes shall cease to have effect on the
expiry of the period specified in Article 334 of the Constitution.
- It is clarified
that nothing in this section shall prevent the persons belonging to the
Scheduled Castes, the Scheduled Tribes, the backward classes and the women from
contesting elections to unreserved seats and offices." The U.P. Act also
specifically provides for delimitation of wards:-
Provisions of Wards –
For the purpose of the election of Sabhasads, each municipal area shall be
divided into territorial constituencies to be known as wards in the manner
provided in Section 32 and there shall be a separate electoral roll for each
Each ward shall be represented by each Sabhasad in the Corporation.
Delimitation Order –
The State Government shall be order - (a) divide a municipal area into wards in
such manner that the population in each ward shall, so far as practicable be
the same throughout the municipal area;
the number of wards into which a municipal area shall be divided ;
the extent of each ward;
the number of seats to be reserved for the Scheduled Castes, the Scheduled
Tribes, the backward classes or the women.
The draft of the Order sub-section (1) shall be published in the official
Gazette for objections for a period of not less than seven days.
The State Government shall consider any objection filed under sub-section(2)
and the draft Order shall, if necessary, be amended, altered or modified
accordingly and thereupon it shall become final.
Alteration or amendment of Delimitation Order and its effect –
The State Government may, be a subsequent Order, alter or amend any final Order
under sub-section (3) of Section 32.
- For the alteration or amendment of any order under sub- section (1), the
provisions of sub- sections (2) and (3) of Section 32 shall mutatis mutandis
Upon the alteration or amendment of any final Order under this Section, the
State Government shall apportion the existing Sabhasads to the altered or
amended wards so as to provide so far is reasonably practicable for their
continuing to represent as large a number as possible of their former
(3) x x
x x x x x 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.
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.
this connection, it may be necessary to mention that there is one feature to be
found in the Delimitation Commission Act, 1962 which is absent in the U.P. Act
Section 10 of the Act of 1962 provided that the Commission shall cause each of
its order made under Sections 8 and 9 to be published in the Gazette of India
and in the official Gazettes of the State concerned. Upon publication in the
Gazette of India every such order shall have the force of law and shall not be
called in question in any Court.
of these specific provisions of the Delimitation Commission Act, 1962 in the
case of Meghraj Kothari v. Delimitation Commission and others, (AIR 1967 SC
669), this Court held that notification of orders passed under Sections 8 and 9
of that Act had the force of law and therefore, could not be assailed in any
court of law because of the bar imposed by Article 329. The U.P. Act of 1959,
however, merely provides that the draft order of delimitation of municipal
areas shall be published in the official Gazette for objections for a period of
not less than seven days. The draft order may be altered or modified after
hearing the objections filed, if any . Thereupon, it shall become final.
does not lay down that such an order upon reaching finality will have the force
of law and shall not be questioned in any court of law. For this reason, it may
not be possible to say that such an order made under Section 32 of the U.P. Act
has the force of law and is beyond challenge by virtue of Article 243-ZG. But
any such challenge should be made soon after the final order is published. The
Election Court constituted under Section 61 of the U.P. Act will not be
competent to entertain such an objection. In other words, this ground cannot be
said to be comprised in sub-sections (iv) of clause (d) Section 71 of the U.P.
vary nature of things, the Election Court cannot entertain or give any relief
on this score. The validity of a final order published under Section 33 of the
U.P. Act is beyond the ken of Election Court constituted under Section 61 of
the said Act.
the electoral rolls have to be prepared and published under Section 39 of the
U.P. Act. If there is any mistake, objections can be filed within the specified
period and corrected on the basis of the objections filed, if any.
remedy by way of appeal has been provided to a person aggrieved by the
inclusion, deletion or correction of the name in the electoral roll. There is
no provision in the U.P. Act giving force of law to the electoral roll after its
finalisation. However, Section 49 of the U.P. Act contains a bar on the
jurisdiction of a civil court to entertain or adjudicate upon a question
whether a person is or is not entitled to be registered in an electoral roll
for a ward or to question the legality of any action taken by or under the
authority of the State Election Commission in respect of preparation and
publication of electoral roll or to question the legality of any action taken
or of any decision taken by the Returning Officer or by any other person
appointed under this Act in connection with an election.
as the preparation of electoral rolls are concerned, elaborate measures have
been provided by Sections 39 and 40 ensure proper preparation of the electoral
rolls have to be prepared subject to superintendence, direction and control of
the State Election Commission. There is a provision for making application for
correction of the electoral roll by an aggrieved person.
is also a provision for appeal against any order in regard to inclusion,
deletion or correction of name in the electoral roll. Therefore, so far as
preparation of the electoral roll is concerned, there are sufficient safeguards
in the Act against any abuse of misuse of power. In view of these provisions
and particularly, in view of sub-section (6) of Section 39 which provides for
appeals in regard to inclusion, deletion or correction of names, there is
hardly any scope for a Court to intervene and correct the electoral rolls under
Article 226 of the Constitution. In fact, if this is allowed to be done, every
election will indefinitely delayed and it will not be possible to comply with
the mandate of the Constitution that every Municipality shall have a life-span
of five years, or less, if dissolved earlier, and thereafter fresh elections
will have to be held within the time specified in clause (3) of Article 243-U.
regard to the provisions for filing objections and also the right of appeal
against inclusion, deletion and correction of names and also to the
constitutional authority of the Election Commission to give directions in all
matters pertaining to elections, the Court should not have intervened at all on
the basis of allegations as to preparation of electoral rolls.
with the provisions of the Constitution relating to panchayats contained in
Articles 243-A to 243-O (which are similar to Articles 243-Q to 243-ZG relating
to Municipalities), this Court in the case of State of U.P. v. Pradhan Sangh Kshettra
Samiti, AIR 1995 SC 1512 at 1528, held :- "It is for the Government to
decide in what manner the panchayat areas and the constituencies in each panchayat
area will be delimited.
not for the Court to indicate the manner in which the same would be done. So
long as the panchayat areas and conformity with the constitutional provisions
or without committing a breach thereof, the Courts cannot interfere with the
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 questions of the validity of any
law relating to the delimitation of the constituencies or the allotment or
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." It was also held by the Court that any challenge to the
validity of the delimitation of constituencies or the allotment of seats to
such constituencies and the election to any Panchayat should not be entertained
by Court except on the ground that before the delimitation, no objection was
invited and no hearing was given. It was, thereafter, observed as under :
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." On behalf of the respondents, it has been contended
that the Court is not entirely without jurisdiction to intervene when it finds
that provisions of the Constitution are being flouted in holding the election.
In such a situation, the Court has jurisdiction and, indeed, a duty to
intervene and set right the election process. Our attention was invited to the
definition of 'population' as given by Article 243-P(g), according to which
'population' means the population as ascertained at the last preceding census
of which the relevant figures have been published.
mandate is that there shall be Wards Committees consisting of one or more wards,
within the territorial area of a Municipality "having a population of
three lakhs or more" Therefore the last published census figures must be
the basis for delimitation of wards. Section 32 of the U.P. Act provides that
the State Government shall by order divide municipal areas into wards in such
manner that the population in each ward shall, so far as practicable, be the
same throughout the municipal area. It must also determine the number of wards
into which the municipal areas are to be divided, determine the extent of each
ward and also determine the number of seats to be reserved for the Scheduled
Classes or the women. There will have to be an electoral roll each ward which
shall be prepared in accordance with the provisions of this Act under the
superintendence, direction and control of the State Election Commission
(Section 35). Section 40 provides revision of electoral roll which can be done
only if the State Election Commission is of the view that it is necessary. In
this case, it is further contended, the State Government has deviated from the
published figures of the last census for the purpose of delimitation of the
constituencies and the preparation of electoral rolls. It made survey of the
population on its own and the electoral rolls were drawn up for various wards
and delimitation of the constituencies (wards) and the allotment of the seats
to such constituencies were done not on the basis of the census figures of 1991
but on the basis of population survey made by the State which is not
permissible under the specific provisions of the Constitution. In such a
situation, it was appropriate for the petitioner to invoke the writ
jurisdiction and compel the State authorities to act in accordance with the
mandate of the Constitution. In doing this, the Court was not declaring any law
to be invalid but was compelling the State to act in accordance with the law
and the Constitution.
case of the State Government in the court below as well as here is that the
election has to be conducted on the basis of the last census which was held in
the year, 1991.
next census is due to be held in 2001. But in the meantime, election to the
municipal bodies will have to be held. The basis for holding such elections is
the last available census figures. But where no census figures are available,
then a survey has to be made by the Government to find out the correct figures.
For example, Article 243-T specifically reserves the right of the State
Legislature for making provision for reservation of seats in favour of backward
classes of citizens. This reservation has been made by the State Legislature of
U.P. for ensuring that the backward class people are adequately represented in
the local bodies. Section 7 of the U.P. Act specifically provides for reservation
of seats for backward classes and empowers the State Government that if the
figures of backward classes were not available, their population may be
determined by carrying out a survey in the manner prescribed by the rules.
view, the argument advanced on behalf of the State must be upheld. It is true
that Article 243-P(g) has defined population to mean "population as
relevant figures have been published." The delimitation of constituencies
and also preparation of electoral rolls will have to be done on the basis of
the figures available from the last census which was taken in 1991. Reservation
of seats for scheduled castes and scheduled tribes is mandatory under Article
243-T of the Constitution. This must also be done on the basis of the available
figures from the census. Clause (6) of Article 243-T of the Constitution has
made it permissible for the State Government to reserve seats for other
backward classes. The census of 1991 has not enumerated the number of persons
belonging to backward classes. Therefore, in order to reserve seats for
citizens belonging to backward classes, their number will have to be found out.
Clause (6) of Article 243-T has impliedly empowered the State Government to
ascertain the backward classes and the number of people belonging to such
classes. Otherwise, the provisions of clause (6) of Article 243-T will become
otiose and meaningless. Merely because, such an enumeration of people belonging
to backward classes was made, does not mean that the figures enumerated by the
last census were discarded.
latest available census figures had to be the basis for delimitation of the
constituencies, preparation of electoral rolls and also for reservation of
seats for scheduled castes, scheduled tribes and women. But census figures are
not available for persons belonging to backward classes. The next census will
be in the year 2001. There is no way to reserve seats for backward classes in
the meantime except by making a survey of the number of persons belonging to
such classes for the purpose of giving them assured representation in the
municipal bodies. To do this exercise is not to do away with the last available
census figures but to find out what was not to be found by the last census. Had
such counting been done in the census, then it would not have been open to the
State Government to embark upon a survey of its own. The State Government here
had only two choices. It could say that there will be no reservation for people
belonging to backward classes because, the census figures of such people are
not available or it could make a survey and count the number of people
belonging to the backward classes and reserve seats for them in the municipal
bodies. The State Government has taken the latter course.
is in consonance with the provisions of clause (6) of Article 243-T. Therefore,
the survey made by the State Government for finding out the number of persons
belonging to backward classes was not in any way contrary to or in conflict
with any of the provisions of the Constitution.
the U.P. Act of 1959 was amended to make it consistent with the provisions of
Part IX-A of the Constitution. Population was defined in Section 2 (53-A) to
mean "population as ascertained in the last preceding census of which the
relevant figures have been published. This is identical to the definition given
in Article 243-P(g).
32 which deals with the delimitation, inter alia, provides that the State
Government shall by order determine the number of seats to be reserved for
scheduled castes, scheduled tribes, backward classes and for women. Section 7 lays
down that in every Corporation, seats shall be reserved for scheduled castes,
scheduled tribes and backward classes.
is a second provision to Section 7 which lays down that if the figures of
backward classes are not available, their population may be determined by
carrying out a survey in the manner prescribed by the rules. These provisions
come within the ambit of the phrase "any law relating to the delimitation
of the constituencies or allotment of seats to such constituencies." The
validity of this law cannot be challenged because of the protection given by
Article 243-ZG of the Constitution. Therefore, the question whether the survey
made by the State Government to ascertain the figures of persons belonging to
backward classes was lawful or not cannot be raised in any Court.
the Court on no account should have directed postponement of the elections by
the impugned judgment and order dated 13th November, 1995. On 11th October, 1995, the notification for holding the municipal elections was
to 20th October, 1995 was the period during which the nomination papers could
be filed. 24th October,
1995 was the last date
for withdrawal of nomination papers. Voting was to take place between 17th
November to 20th
November, 1995. The
writ petition was filed as late 26th October, 1995 on the allegation that there were defects in the electoral
rolls, delimitation of constituencies and reservation of seats. A similar writ petition
moved before the Lucknow Bench of the Allahabad High Court (W.P. No. 2997 of
1995) had been dismissed by the Court on 18th October, 1995. Barely one week
before the voting was scheduled to commence, the Court decided to intervene in
the matter regardless of the repeated warnings given by this Court in a number
of earlier decisions. The Court decided to intervene in the matter and stop the
election process while it was nearing completion.
Charan's Case, it was held that the Court should not intervene even when the
elections were imminent. Here, the election was well underway.
the reasons given hereinabove, we are of the view that the impugned judgment
was erroneous and improper. We allow this appeal. The judgment under appeal is
elections have already been held under the interim order passed by this Court,
no further direction in this regard is necessary. There will be no order as to
APPEAL NO. 11932 OF 1996 (Arising out of .S.L.P (C) NO. 269290 OF 1995) Leave
granted In view of judgment in Civil Appeal No. 11830 of 1996 (arising out of
S.L.P. (C) No.25864 of 1985 the above appeal is dismissed.