James vs District Collector

T.R. Ramachandran Nair

The petitioners are aggrieved by Ext. P6 certificate given by the Tahsildar of the Taluk for the purpose of production before the third respondent for admission in Jawahar Navodaya Vidyalaya. Therein, it is certified that the school wherein the first petitioner is now studying, is situated in an urban area, whereas the contention of the petitioners is that it is only in a Panchayat and therefore it is only rural area. The petitioners are residing in Ward No. XI of Keezhmadu Grama Panchayat. The second petitioner is studying in Class VI in Christava Mahilalayam Higher Secondary School, Aluva which is situated in Ward No. III of Keezhmadu Grama Panchayat. In the selection test conducted by the third respondent, the second petitioner is placed at rank No. 62 and a letter of provisional selection has been issued as per Ext. P3. Ext. P4 is the copy of the certificate from the school wherein she is studying and Ext. P5 is the copy of the certificate issued by Keezhmadu Grama Panchayat, and both these confirm that the school wherein the second petitioner is now studying, is within a rural area.

Mainly it is pointed out in the Writ Petition that since the Grama Panchayat is one constituted as an institution of self Government under Arts. 243(d) and 243B for "rural areas", all the areas coming within the territory of the Grama Panchayat have to be reckoned as a rural area. It is also stated that issuance of certificate on the basis of urban primary census extract is not legally permissible. The petitioner has got a further contention that even if the census data is accepted, the criteria prescribed therein to reckon an area as urban is not satisfied in this particular case.

In the counter affidavit filed on behalf of the third respondent, mainly it is contended that in the application, the petitioners have shown the location of the present school as "rural", based on which the application was admitted for the selection process and going by the eligibility condition for admission in Class VI under rural quota, the candidate must have studied and passed Classes III, IV and V from a Government/Government aided/Recognised school spending one full academic session each year in a school located in rural area. The stand taken further is that Ext. P6 certificate issued by the Tahsildar will show that the location of the school is in an urban area.

The second respondent has filed a counter affidavit wherein substantially the stand taken is that after the receipt of the application the second respondent enquired through the Village Officer. It is reported that the student is now studying in Christava Mahilalaya Higher Secondary School, Aluva which is situated in Ward No. III/594 of Keezhmadu Grama Panchayat. In the District Census Hand Book, 2001 published by the Census Director, old Ward Nos. I to XV of Keezhmadu Grama Panchayat including Ward Nos. III and X have been included under the caption of "Urban Primary Census Abstract" and the relevant page of the same has been produced as Ext. R2(a). It is further stated that the Tahsildar will be able to issue urban/rural certificate only on the basis of the finding of the census abstract and it cannot be varied. The old ward number of Christava Mahilalayam where the second petitioner is studying, is Ward No. III which situates in an urban area, as the same has been included under the caption of "Urban Primary Census Abstract". All the above said wards are coming under "Edathala Census Town" and so Christava Mahilalaya Higher Secondary School comes under urban area. It is further stated that the Census Hand Book is authoritative and the Tahsildar cannot issue certificate varying from the same. It is also stated that Ext. P6 certificate has been issued in accordance with Art. 243P(g) of the Constitution of India which states that population means population as ascertained at the last preceding census of which the relevant figures have been published.

Heard learned counsel for the petitioners, learned Government Pleader appearing for respondents 1 and 2 and learned Assistant Solicitor General appearing for the third respondent.

Learned counsel for the petitioners invited my attention to the provisions of the Constitution of India under Part IX concerning Panchayats. It is submitted that all the wards herein are coming within Keezhmadu Grama Panchayat which is a local self Government institution constituted under Art. 243B. It is submitted that once a Panchayat has been constituted under the relevant provisions of the Constitution and the provisions of the Panchayat Raj Act, specifically for ''rural areas'' and such of those areas which are part of the very same Panchayat have not been included in any Municipality classifying it as urban area, the unit, viz., Panchayat alone can be taken for the purpose of issuing the certificate. It is therefore submitted that the ward wherein the petitioners are residing as well as the ward wherein the school is situated, are coming within rural areas and the certificate issued by the Panchayat and the school authorities will support the matter.

With regard to the particulars available in the Census Hand Book relied upon by the Tahsildar, it is submitted that the data collected pursuant to the census cannot have an overriding effect over the provisions under which a Panchayat area has been notified and a Village Panchayat has been constituted. It is submitted that even going by the provisions of the Census Act, 1948 and especially S. 15, it will show that records of census are not admissible in evidence. Further, those details are not notified for the purpose of specific applicability in contingencies like the one herein. The data collected are used mainly for purposes like planning and other matters which cannot govern a matter like this.

The contention by the learned Government Pleader is that the data collected as far as Ernakulam District, have been compiled in the District Census Hand Book. It is submitted that under the heading "Urban Primary Census Extract" (Ext. R2(a)), various details have been provided therein in respect of each wards of Keezhmadu Grama Panchayat. Therefore, it is submitted that the ward in question is under item 6 under the heading "Edathala (CT)" (CT stands for Census Town). Relying upon the map provided at page 161 of the District Census Handbook, learned Government Pleader submitted that the area herein will come within Edathala Census Town and all the areas which have urban character, as they fulfill the conditions for the same, are given in a particular colour therein, to show that they are urban areas. It is submitted therefore that the Tahsildar cannot ignore the same for the purpose of giving the certificate.

The above contentions are supported by the learned Assistant Solicitor General appearing for the Jawahar Navodaya Vidyalaya. It is submitted that as far as candidates, viz. urban candidates are concerned, the crucial provision in the prospectus, is that a candidate who studied in a school located in an urban area in Classes III, IV and V will be considered as urban category. Urban areas are those which are defined in 2001 census or through a subsequent Government Notification and other areas will be considered as rural. It is submitted that once the local Tahsildar certifies that the school in question wherein the second petitioner is residing is an urban area, no other discretion is vested in the third respondent and therefore the same was acted upon.

In reply, learned counsel for the petitioners submitted that the guidelines issued by the Government of India, Ministry of Home Affairs, for Census 2001 under the heading ''Concepts and Definitions'' and the sub-heading ''Rural-Urban Areas'' provide the parameters for considering a place as urban area and the same are not satisfied herein, since it will show that the three criteria provided therein simultaneously will have to be satisfied, i.e., (i) minimum population of 5000; (ii) at least 75 percent of male working population engage in non-agricultural pursuits; and (iii) a density of population of at least 400 per sq. km.. Ext. R2(a) and the details therein do not tally with these conditions, it is pointed out.

The issue therefore will have to be considered in the light of the provisions of the Constitution of India, the Panchayat Raj Act and Census of India Act and Rules. As far as the provisions under the Constitution are concerned, "Panchayat" is a constitutional institution under Part IX. The concept of "Panchayat" under the provisions of the Constitution including the definitions under Art. 243 will have to be considered. Art. 243(d) gives the meaning of "Panchayat" in the following terms:

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

Sub-article (e) gives the meaning of "Panchayat area" and the same is extracted below:

(e) "Panchayat area" means the territorial area of a Panchayat.

Sub-articles (f) and (g) are also important which concern "population" and Village''. Article 243B is one concerning constitution of Panchayats and 243C is concerning composition of Panchayats. The respective articles are extracted below:

243B. Constitution of Panchayats.--(1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part.

243C. Composition of Panchayats.--(1) Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with respect to the composition of Panchayats.

An analysis of the above will show that the Panchayat is an institution defined under Art. 243(d) "for the rural areas" and going by Art. 243B, Panchayats can be constituted at the village, intermediate and district levels. Art. 243C provides for framing of a legislation in terms of the provisions of the Constitution which as far as this State is concerned, is the Panchayat Raj Act, 1994. The definition of "Panchayat area" is important which shows that it will be the territorial area of a Panchayat. It means a Panchayat constituted under the provisions of Art. 243B and in terms of the provisions of the concerned legislation, viz., Panchayat Raj Act. The population figures definitely will have to be taken in terms of the preceding census.

We will now come to the relevant provisions of the Panchayat Raj Act. Chapter in concerns constitution of Panchayats at different levels and under S. 4(1) the Government shall, by notification in the Gazette, constitute with effect from such date as may be specified in the notification: (a)a Village Panchayat for each village or for group of villages; (b) a Block Panchayat at intermediate level; and (c) a District Panchayat for each District Panchayat area and specify the names and headquarters of such Panchayats. Sub-ss.(2) and (3) are not relevant for the issue to be decided herein. Therefore, once the notifications are issued by the Government under S. 4(1), it will satisfy the provisions of Arts. 243B and 243C. The next important section is contained in Chapter IV under the heading "Delimitation of Constituencies". S. 10 provides for constitution of a Delimitation Commission who will be determining the division of wards, providing reserved seats and other matters. Sub-s.10(1)(a) provides for division of every Panchayat into as many constituencies as there are seats and fixation of boundaries of such constituencies. Sub-s.(2) provides for the procedure for publication of the proposals of the Delimitation Commission, inviting objections and suggestions, considering the same and finally delimiting the constituencies. Under sub-s.(3), an order made by the Delimitation Commission shall not be called in question in any court of law and under sub-s. (3A) every order issued by the Delimitation Commission with regard to the del imitation of constituencies under this section shall be published in the Gazette and shall have the force of law.

Therefore, the above provisions will give the idea regarding constitution of a Panchayat at village level like the one herein. In fact, the last time when the delimitation was completed and election was conducted was in the year 2010, after undertaking the process under Chapter IV for delimitation of constituencies. Therefore, the said exercise which is mandatory under the Constitution and is to be complied with under the provisions of the Panchayat Raj Act, will give existence for a local self Government institution constituted under Art. 243(d) "for the rural areas". The entire territorial area of a Panchayat will therefore have to be taken as Panchayat area under Art, 243(e). As far as the concept of an urban area is concerned, the same is under Part IXA governing "Municipalities". Therein also, it can be seen that there is a definition of "Municipality" under Art. 243P(e) which means "an institution of self-government constituted under Art. 243Q and under Art. 243P, the definition of Panchayat is given as "a Panchayat constituted under Art. 243B." The concept of an "urban area" is governed by Art. 243Q(2) which reads as follows:

In this article, a "transitional area", "a smaller urban area" or "a larger urban area" means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part.

In Art. 243Q, as far as constitution of Municipalities are concerned, Nagar Panchayat is in respect of an area in transition from a rural area to an urban area, a Municipal Council is for a smaller urban area and a Municipal Corporation is for a larger urban area. The manner in which they will have to be constituted, is clear from sub-art.(2), as already mentioned and the relevant criteria are also specified therein. The composition of Municipalities and the constitution therein are also governed by the provisions of Arts. 243R and 243S and the provisions of Municipality Act. Therefore, for an area to be earmarked as a transitional area, a smaller urban area or a larger urban area under Art. 243Q(2), it requires a notification issued by the Governor. Herein, as far as the wards in question are concerned, they are already included under the Keezhmadu Panchayat and there is no notification under Art. 243Q(2) notifying any area as a smaller urban area, larger urban area, etc. Therefore, the area of the different wards constituting the Panchayat alone will be relevant to understand whether it is a rural area or urban area.

The concept of a "Census Town" for the purpose of census, is crucial according to the learned Government Pleader. I shall now examine the same. The prospectus of Jawahar Navodaya Vidyalaya, as already mentioned, denotes an urban area in the following terms:

Urban areas are those which are so defined in 2001 census or through a subsequent Government Notification. All other areas will be considered as rural.

It is in that context learned Government Pleader and learned Assistant Solicitor General have raised the contentions relying upon 2001 Census Handbook. The Census concepts under 2001 Census Handbook which we have already referred to, will show that in the census of the year 2001 urban area is defined as:

(a) All places with a Municipality, Corporation, Cantonment Board or Notified Town Area Committee, etc.

(b) A place satisfying the following three criteria simultaneously:

(i) a minimum population of 5,000;

(ii) at least 75 per cent of male working population engaged in non-agricultural pursuits; and

(iii) a density of population of at least 400 per sq. km. (1,000 per sq. mile).

It is important to notice that the said process is only for census purpose and going by the provisions of the Constitution as well as Panchayat Raj Act, wherein population figures will have to be adopted as per the last preceding census for the purpose of delimitation of constituencies and once the said process is completed, in the absence of adding any transitional area, smaller urban area, etc., in a Municipality or Municipal Corporation, those will remain only for the purpose of census, as a Municipality or Panchayat or Nagar Panchayat, etc., can be established only by a notification. The concept of a census town is one governed by the provisions of the Census Rules, 1990. The Census of India Act, 1948 does not define a census town. Therein also, there are no provisions with regard to the inclusion of any area as urban or rural after the collection of data are completed. Mainly, the Act is concerned with the procedure for conducting census, appointment of staff and other connected matters therein. Under the Census Rules, 1990, R.3 relates to appointment of Census Officers and their categories according to official designation, are separately provided. R.5 is under the heading "Functions of the Census Officers" and the functions of District/Additional District/Sub Divisional Census Officer are mentioned in sub-r.(4) of R.5. Sub-r.(4)(a)(ii) reads as follows:

(4) The District/Additional District or Sub-Divisional Census Officer shall,--

(a)(ii) cause the entire area of a district to be divided into well-demarcated census divisions, namely, charges, supervisor's circles and enumerator's blocks as per instruction issued in this behalf by the Director of Census Operations.

Going by the same, the entire area of a district can be divided into well demarcated census divisions depending as per the instruction of the Director. R.3 is concerning appointment of Census Officer, the officers to be appointed as Charge Officer/Assistant Charge Officer/Additional Charge Officer and Sub-Charge Officer and Tahsildars/Additional Tahsildars/Mamlatdars, etc. As far as supervisors are concerned, they will be higher in rank than enumerators of any person and enumerators are teachers, clerks or any official or any person. Therefore, depending upon the designation of the officers, census divisions will be earmarked within a district as provided under R.5(4)(a)(ii). A reference to the District Census Hand book concerning Ernakulam District will also show that such census divisions have been earmarked in terms of the above provision and it has no connection with the geographical area of the Panchayat, Municipality or Municipal Corporation, etc. Under the heading "Important Statistics", the number of towns are sub divided under Statutory Towns and Census Towns as 9 and 16 respectively, in Ernakulam district. Therefore, Census Towns are provided in the light of the provisions of Rules 3 and 5, as already mentioned.

An analysis of the Census Act, 1948 and Census Rules, 1990 therefore makes it clear that for carrying census activity certain procedures have been fixed and the census is being carried out and the informations are collected and compiled, in terms of those provisions. Going by the stand of the Tahsildar herein, the same is crucial for issuance of the certificate sought for by the petitioners. At any rate, those provisions cannot override the provisions of the Constitution or the provisions of the Panchayat Raj Act with regard to composition of Panchayats. A Panchayat is a unit of self Government which has come into effect for the purpose of rural areas and the process of delimitation are being carried out for the said purpose. The effect of S. 10 of the Panchayat Raj Act is that once an order of delimitation is published, it will have the force of law for the purpose of Article 243O(a) of the Constitution. I had occasion to consider the said issue in the judgment in Nanu Vs. State De-limitation Commission, . After considering the effect of Art. 243O(a), it has been held as follows in para 14:

Now S. 10(3A) has been added making it clear that on publication in the Gazette the order of delimitation will have the force of law. Once the notification is published in the Gazette, then going by the decision of the Apex Court, the bar applies, as it will be the law for the purpose of Art. 243-O(a) and the non-obstante clause therein is important and becomes operative.

Therefore, once such a notification is published, it has got the force of law and going by the effect of Art. 243O(a), interference by courts in respect of delimitation of constituencies, is barred. Such is the importance of the said notification. I had also occasion to consider the effect of the provisions of the Municipality Act read with Art. 243P and 243Q(1) and (2) of the Constitution, in Sreekala v. State of Kerala (2010 (3) KLT 548), wherein in para 12 it has been held as follows:

.........Therefore, a Municipality becomes a constitutional institution in relation to a transitional area or a smaller urban area or larger urban area. The word ''Municipality" therefore, obviously takes in, going by Art. 243P(e), a Nagar Panchayat, a Municipal Council and a Municipal Corporation.

Therefore, a Municipality becomes a constitutional institution in relation to a transitional area or a smaller urban area or larger urban area. The word ''Municipality" therefore, obviously takes in, going by Art. 243P(e), a Nagar Panchayat, a Municipal Council and a Municipal Corporation.

In the light of the above, unless and until an area, even if it is having some urban character, is notified as a Nagar Panchayat, Municipal Council or Municipal Corporation, but is included in a Panchayat which is a constitutional institution, the same alone will be relevant. A compact area, viz., a rural area which is a territorial area of a Panchayat, even though it is divided by wards, there cannot be a sub classification or sub division of some parts for the purpose of rural character and some other parts for urban character, once the final notification has been issued constituting it as a Panchayat only. In the light of the above, all the areas comprising the different wards can be considered only as a "rural area".

Herein, if the contentions of the respondents are accepted, then even in respect of the very same Panchayat, practical difficulties may arise since, for every purposes such as for licences and other matters, the individuals and institutions will have to approach the Panchayat alone. Herein also, the Panchayat has certified that the school in question is within the area of a Panchayat as per Ext. P5 and the school is situated in the rural area. Therefore, if the arguments of the respondents are accepted, there will be practical problems also which will have to be avoided. In the light of the above, the certificate Ext. P6 issued by the Tahsildar cannot be recognised as the provisions of the Constitution and the Panchayat Raj Act will have overriding effect and the areas under the Panchayat notified under S. 10(3A) will have to be considered as rural areas. This will not violate the provisions of the prospectus, since what is mentioned therein is that an urban area should be so defined in 2001 census or on the basis of subsequent Government notifications. Herein, such notifications are absent and the notification relevant is the one published under the Panchayat Raj Act Apart from that, the clause therein to define urban area as defined in the 2001 census cannot have a different meaning in the light of the fact that local self Government institutions are Constitutional institutions and such concepts will have to be recognised for all purposes of the general public. Therefore, to give a proper meaning to that clause also, we will have to understand the provisions of the Constitution, the provisions of the Municipality Act and the provisions of Panchayat Raj Act, and adopt an interpretation according to them.

For all the above reasons, the petitioner is entitled to succeed. Ext. P6 is quashed. There will be a direction to the Tahsildar to issue a certificate showing the area as rural one, since it is included in Keezhmadu Grama Panchayat, forthwith on production of a certified copy of this judgment by the petitioners, which will be produced by the petitioners before the school authorities for admitting the second petitioner and the admission will be granted accordingly. Such steps will be completed within a period of two weeks from today, since it is pointed out that classes have already started.

The Writ Petition is allowed as above. No costs.