Association of the Resident of Mhow and Another vs Delimitation Commission of India and Others

A.K. Patnaik, C.J.

Petitioner No. 1 is an Association of the residents of Mhow and has been registered as a Society under the Madhya Pradesh Society Registration Act. Petitioner No. 2 is a resident of Mhow. Mhow was earlier included in the Indore Parliamentary Constituency. By a notification in the Extra-ordinary Gazette of India, dated 19th January, 2007, the Delimitation Commission of India (for short ''the Commission'') published its proposals relating to delimitation of different Parliamentary Constituencies in Madhya Pradesh and specified therein 1st February, 2007 as the date on or after which the proposal will be further considered by the Commission. In the Notification dated 19th January, 2007, the Commission also stated that any objections or suggestions in regard to the proposals should reach the Secretary of the Commission on or before 1st February, 2007. Thereafter, the Commission conducted public hearings on different dates and decided inter alia to include Mhow in Dhar Parliamentary Constituency instead of Indore Parliamentary Constituency in its meeting held on 12th of April, 2007. The Commission finally issued an order dated 14-5-2007 u/s 10(1) read with Section 4(2) and Section 9(2) of the Delimitation Act, 2002 (for short ''the Act'') determining the delimitation of Parliamentary Constituencies in Madhya Pradesh and in the order has included Mhow in Dhar Parliamentary Constituency instead of Indore Parliamentary Constituency. Aggrieved, the petitioners have filed this writ petition under Article 226 of the Constitution praying for quashing the order dated 14-5-2007 in so far as it includes Mhow in Dhar Parliamentary Constituency instead of Indore Parliamentary Constituency.

Mr. A.M. Mathur, learned Counsel for the petitioners submitted that the impugned order dated 14-5-2007 of the Commission was in gross violation of the provisions of Section 9(2) of the Act. Mr. Mathur submitted that Section 9(2) of the Act provided that the Commission shall publish its proposals for the delimitation of constituencies and also specify a dale on or after which the proposals shall be further considered and Commission shall 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 and only thereafter by one or more orders determine the delimitation of Parliamentary Constituencies. He submitted that the entire purpose of Section 9(2) o the Act is to ensure that members of the public get an opportunity to submit their objections to the proposals of the Commission and to be heard before the Commission finally passes the orders. He submitted that the only proposal that was published by Notification dated 19-1-2007 was that Mhow will be included in Indore Parliamentary Constituency and the residents of Mhow did not submit any objection to such proposal because they agreed with the proposal. He submitted that since no proposal was at all published by the Commission to include Mhow in Dhar Constituency the residents of Mhow did not file any objection to such a proposal and also did not remain present at the time of public hearing by the Commission.

Mr. Mathur cited the observations of the Supreme Court in Baldev Singh and Others Vs. State of Himachal Pradesh and Others, , that it is necessary that people affected by any change should be given an opportunity of being heard, otherwise they would be visited with serious civil consequences and that denial of such opportunity of hearing is not in consonance with the scheme of the Rule of Law governing a society.

Mr. Mathur submitted that since the impugned order dated 14-5-2007 has been issued in violation of the procedure laid down u/s 9(2) of the Act as well as the principles of natural justice the High Court in exercise of its powers under Article 226 of the Constitution should quash the impugned order. He submitted that in State of U.P. and others etc. Vs. Pradhan Sangh Kshettra Samiti and others etc., , a question arose before the Supreme Court whether an order with regard to delimitation of panchayat areas could be called in question before the High Court under Article 226 of the Constitution in view of the bar under Article 243-(a) of the Constitution that validity of law relating to delimitation of Constituencies or the allotment of seats to such Constituencies made or purporting to be made under Article 243K cannot be called in question in the Court, but the Supreme Court held that an order for delimitation of Constituencies could be challenged on the ground that before delimitation no objections were invited and no hearing was given.

Mr. K.K. Trivedi and Mr. S.K. Maindirelta, learned Counsel appearing for the Commission, on the other hand, submitted that the impugned order of the Commission has already been published in the Gazette of India on 14-5-2007. They submitted that Section 10(1) of the Act provides that the Commission shall cause its orders made u/s 8 or 9 to be published in the Gazette of India and Section 10(2) of the Act further provides that upon publication of Gazette of India, such order of the Commission shall have the force of law and shall not be called in question in any Court. They further submitted that Article 329(b) of the Constitution similarly provides that notwithstanding anything in the Constitution the validity of law relating to the delimitation of Constituencies or the allotment of seats to such Constituencies made or purporting to be made under Article 327 of the Constitution shall not be called in question by any Court. They submitted that the aforesaid provisions of Section 10 of the Act as well as Article 329 of the Constitution were considered by the Supreme Court in Meghraj Kothari Vs. Delimitation Commission and Others, , and the Supreme Court held that upon publication in the Gazette of India an order of the Commission u/s 10(1) of the Act has the force of law and cannot be called in question in any Court. They also cited the decision of the Andhra Pradesh High Court in MM. Ratnam v. The Delimitation Commission 46 ELR 309 and M. Yellappa and Anr. v. The Delimitation Commission, New Delhi and Anr. 49 ELR 272, in which the aforesaid decision of the Supreme Court in Meghraj Kothari v. Delimitation Commission and Ors. (supra) has been followed.

Mr. Trivedi and Mr. Maindiretta further submitted that in any case the proposals regarding Indore Parliamentary Constituency and Dhar Parliamentary Constituency were published by the Commission by the Notification dated 19th January, 2007 and after public hearing it was decided by the Commission to include Mhow in Dhar Parliamentary Constituency instead of Indore Parliamentary Constituency and therefore the provisions of Section 9(2) of the Act were complied with. They submitted that there was no provision in Section 9(2) of the Act requiring the Commission to publish again its decision to include Mhow in Dhar Parliamentary Constituency instead of Indore Parliamentary Constituency and invite objections to the decision from the public and conduct another public hearing before issuing the impugned order.

Section 9 of the Act on which Mr. Mathur has placed reliance is quoted herein below:

Delimitation of Constituencies.-

(1) The Commission shall, in the manner herein provided, then, distribute the seats in the House of the People allocated to each State and the seats assigned to the Legislative Assembly of each State as readjusted on the basis of 1971 census to single-member territorial constituencies and delimit them on the basis of the census figures as ascertained, at the census held in the year 1991, having regard to the provisions of the Constitution, the provisions of the Act specified in Section 8 and 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 public 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 Castes shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total is comparatively large; and

(d) 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) publish its proposals for the delimitation of Constituencies, together with the dissenting proposals, if any, of any associated member who desires publication thereof, in the Gazette of India and in the 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 shall 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.

Sub-section (1) of Section 9 quoted above provides that the Commission shall in the manner provided in Section 9 of the Act distribute the seats in the House of the People allocated to each State and the seats assigned to the Legislative Assembly of each State and delimit them on the basis of the census figures as ascertained at the census held in the year 1991 having regard to the provisions of the Constitution, the provisions specified in Section 8 of the Act and also the provisions specified in Clauses (a) to (d) in Sub-section (1) of Section 9 of the Act. Sub-section (2) of Section 9 of the Act provides the manner in which the Commission has to distribute the seats and delimit the Constituencies. Clause (a) of Section 9(2) states that the Commission shall publish its proposals for delimitation of Constituencies, together with the dissenting proposals, if any. Clause (b) of Sub-section (2) of Section 9 of the Act provides that the Commission shall specify a date on or after which the proposals shall be further considered by it. Clause (c) of Sub-section (2) of Section 9 of the Act provides that the Commission shall 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 as it thinks fit. Clause (d) of Sub-section (2) of Section 9 of the Act provides that after following the aforesaid requirements of Clauses (a), (b) and (c), the Commission by one or more order determine the delimitation of Constituencies. There is no provision in any of the clauses of Section 9(2) of the Act quoted above requiring the Commission to again publish a proposal or invite objections and suggestions and hold public meetings if the Commission decides to change the original proposal as published. In the absence of any such provision, we cannot hold that the Commission was required to publish its decision to include Mhow in Dhar Parliamentary Constituency instead of Indore Parliamentary Constituency again and invite objections and hold one or more public sittings as contended by Mr. Mathur, learned Counsel for the petitioners.

Moreover, once an order made by the Commission is published in the Gazette of India, such an order has the force of law and cannot be called in question in any Court. This is clear from the provisions of Article 329 read with Article 327 of the Constitution and the provisions of Sub-sections (1), (2) and (4) of Section 10 of the Act are quoted herein below:

Power of Parliament to make provision with respect to elections to Legislatures. - 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 or 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.

Bar to interference by Courts in electoral matters.- Notwithstanding anything in this Constitution

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

(b) No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the Appropriate Legislature.

Publication of orders and their date of operation.- (1) The Commission shall cause each of its orders made u/s 8 or Section 9 to be published in the Gazette of India and in the Official Gazettes of the States concerned and simultaneously cause such orders to be published at least in two vernacular newspapers and publicize on radio, television and other possible media available to the public and after such publication in the Official Gazettes of the States concerned, every District Election Officer shall cause to be affixed, the Gazette version of such orders relating to the area under his jurisdiction, on a conspicuous part of his office for public notice.

(2) 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.

(4) Subject the provisions of Sub-section (5), the readjustment of representation of the several territorial Constituencies in the House of the People 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 any other law for the time being in force or any order or notification issued under such law insofar as such representation and delimitation are inconsistent with the provisions of this Act.

It will be clear from Article 327 of the Constitution quoted above that power has been vested in Parliament to make provision by law from time to time with respect to matters relating to delimitation of Constituencies. In exercise of such power, parliament has made the Act. Section 10(1) of the Act provides that the Commission shall cause its order passed u/s 8 or 9 to be published in the Gazette of India and Section 10(2) of the Act states that upon publication in the Gazette of India, every such order shall have force of law and shall not be called in question in any Court. Section 10(4) of the Act further provides that after the publication in the Gazette of India of such order, the readjustment of representation of several territorial Constituencies in the House of the People and the delimitation of those Constituencies provided for in any such order shall apply in relation to every election to the House and "shall so apply in supersession of the provisions relating to such representation and delimitation contained in any other law for the time being in force" or any other order or notification issued under such law in so far as such representation and delimitation are inconsistent with the provision of the Act.

In Meghraj Kothari v. Delimitation Commission and Ors. (supra), the Supreme Court considered provisions similar to Section 10(2) and Section 10(4) of the Act contained in the Delimitation Commission Act, 1962 and held that although the notification issued u/s 10(2) of the said Act was not a Statute passed by Parliament, it was a law relating to delimitation of Constituencies or the allotment of seats to such Constituencies made or purporting to be made under Article 327 of the Constitution and observed:

In this case, we are not faced with that difficulty because the Constitution itself provides under Article 329(a) that any law relating to the delimitation of Constituencies etc. made or purporting to be made under Article 327 shall not be called in question in any Court. Therefore an order u/s 8 or 9 and published u/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 Article 327, Article 329 would prevent any investigation by any Court of law.

Thus, the Supreme Court has clearly held in Meghraj Kothari (supra), that an order made u/s 10(1) of the Act and published in the Gazette of India u/s 10(2) of the Act is to be treated as law made under Article 327 of the Constitution and cannot be called in question in any Court as provided in Article 329 of the Constitution. The learned Single Judge and the Division Bench of the Andhra Pradesh High Court in MM. Ratnam v. The Delimitation Commission and M. Yellappa and Anr. v. The Delimitation Commission, New Delhi and Anr. (supra), have also held following the decision of the Supreme Court in Meghraj Kothari (supra), that having regard to Article 329 of the Constitution, an order of the Delimitation Commission passed u/s 9(2)(d) of the Act and published u/s 10(2) of the Act has the force of law and was not justiciable.

In State of U.P. v. Pradhan Sangh Kshettra Samiti and Ors. (supra), cited by Mr. Mathur, Clause (1) of Article 242-0 of the Constitution which provides that validity of any law relating to delimitation of the Constituencies of panchayats or the allotment of seats to such Constituencies made or purporting to be made under Article 243K of the Constitution shall not be called in question in any Court was considered and the Supreme Court referred to its earlier decision in Meghraj Kothari (supra), and observed:-

If we read Articles 243C, 243K and 243-0 in place of Article 327 and Sections 2(kk), 11-Fand 12-BB of the Act in place of Sections 8 and 9 of the Delimitation Act, 1950, it will be obvious that neither the delimitation of the panchayat area nor of the Constituencies in the said areas and the allotments of seats to the Constituencies could have been challenged nor the Court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given.

Mr. Mathur relied on the unlined portion of the observations of the Supreme Court quoted above and submitted that where no objections were invited and no hearing was given, the Court can entertain a challenge to an order issued and published by the Commission relating delimitation of Constituencies; But as we have indicated above, the proposals regarding Indore Parliamentary Constituency and Dhar Parliamentary Constituency were published and objections were invited and public hearings were held and there is no requirement in Section 9(2) of the Act for the Commission to publish the proposal again, invite objections and hold further public hearing after the Commission decided to include Mhow in Dhar Parliamentary Constituency instead of Indore Parliamentary Constituency. Thus, the decision of the Supreme Court in State of U.P. v. Pradhan Sangh Kshettra Samiti and Ors. (supra), is of no assistance to the petitioners.

Baldev Singh and Ors. v. Stale of Himachal Pradesh and Ors. (supra), cited by Mr. Mathur is a case in which the Supreme Court has held that inclusion of a locality in a notified area u/s 256 of the Himachal Pradesh Municipal Act, 1968 involves civil consequences and hence prior opportunity of hearing to the residents must be afforded though not provided in Section 256 of the aforesaid Act. The order for inclusion of a locality in the notified area u/s 256 of the aforesaid Act was not equivalent to law made by the Legislature. In fact the order issued u/s 256 of the aforesaid Act was held by the Supreme Court as an Administrative decision of the State Government and not law made by the Legislature and such an administrative decision affecting the people of the locality, according to the Supreme Court should not have been taken without affording an opportunity of being heard to the residents of the concerned locality. Therefore, this decision has no application to the present case, in which the order of the Delimitation Commission once published u/s 10(2) of the Act is law made under Article 327 of the Constitution and cannot be called in question in any Court by virtue of Article 329 of the Constitution.

For the aforesaid reasons, we dismiss the writ petition, but order that the parties shall bear their own costs.