The Communist Party of India and Others etc. vs State of Maharashtra and Another

Dhabe, J.—These two writ petitions involve common questions of fact and law and can, therefore, be conveniently disposed of by this common judgment.

The petitioners in writ petition No. 2162 of 1985 are the Communist Party of India and two individuals who are elected members of the Gram Panchayats in Nagpur district. The petitioner No. 1 in writ petition No. 2210 of 1985 is an organisation known as Adivasi Arakshan Saurakshan Samiti which is formed with the object of promoting and protecting the rights and interests of the Scheduled Tribes in general and in particular for the purpose fo taking action in the matter of providing reservation to the Scheduled Tribes persons in the ensuing elections of the Zilla Parlishads and the Panchayat Samitis. The petitioners 2 to 10 in the aforesaid writ petition are qualified to vote and to be elected in the ensuring Zilla Parlishad elections.

Two questions arise for consideration in the instant writ petitions. The first question raised on behalf of the petitioners in these writ petitions is that the definition of the expression ''population'' which is newly substituted as Clause (20A) in Section 2 of the Maharashtra Zilla Parlishads and Panchayat Samities Act , 1961 (for short, "the Act "), by the dissolution of Osmanabad and Parbhani zilla Parishads and Temporary Postponement of Elections and the Maharashtra Zilla Parishads and Panchayat Samities (Amendment) Act , 1985 (hereinafter referred to as "the Maharashtra Act No. 12 of 1985"), is arbitrary and discriminatory and is violative of Article 14 of the Constitution of India, and is therefore liable to be struck down. The second question raised on behalf of the petitioners in the instant writ petitions and in particular in writ petition No. 2210 of 1985 filed by Advasi Arakshan Saurakshan Samiti if that even assuming that the definition of the expression ''population'' as substituted by the Maharashtra Act No. 12 of 1985 is valid, the population figures as ascertained in 1971 would mean the population figures of the original census of 1971 as modified by Section 5(2) and as published u/s 5(3) of the Scheduled Castes and Scheduled Tribes Order (Amendment) Act , 1976 (hereinafter referred to as "the Act no. 108 of 1976") and, therefore, the reservation of seats for the Scheduled Tribes in the elections to the Zills Parlishads and Panchayat Samities under the Act has to be made on the basis of the said population figures.

To appreciate the above contentions raised on behalf of the petitions, it is first necessary to refer to and understand the scheme of some of the relevant provisions of the Act and the Rules framed there under relating to the elections to the Zilla Parlishads and the Panchayat Samities under the Act . Section 6 of the Act provides for establishment of a Zilla Parlishad for every district consisting of a president and Councillors. Section 9(I)of the Act provides for composition of the Zilla Parshad which inter alia consists of elected Councillors as provided in its clauses (a) elected by direct election from electoral divisions of the district being nto more than 60 in number and not less than 40 as may, by notification in the Official Gazette, be determined by the State Government so however that there is one Councillor as far as is reasonably practicable for not more than every forty thousand of the population. The other clauses of Section 9I) provide for co-opted and ex-officio members in the composition of the Zilla Parlishad, with which we are not concerned in the instant writ petitions.

the nest relevant provision so far as election of the Councillors is concerned is Section 12 which provides for the election of the Councillors of the Zilla Parlishad. Sub-Section (I) of S.12 provides that every district shall be divided into electoral divisions (the territorial extent of any such division not being outside the limits of the same Block), each returning one Councillor, and there shall be a separate election for each electoral division. If may be seen that the expression "Block" is defined in clause (3) of Section 2 to mean such local area in a district as the State Government may constitute such number of Blocks in every district as it may think fit by issuing a notification in the Official Gazette in that regard. It is not in dispute that by notification issued u/s. 5 each tahsil in a district is a Block constituted by the State Government u/s. 5 of the Act .

Sub-Section (2) of Section 12 is important for the purpose of this petition. It provides that where the State Government, having regard to the population of the Scheduled Castes or Scheduled Tribes in the district, is of the opinion that reservation of seats in any electoral division for the representation of such Castes or Tribes is necessary, the State Government may reserve a seat or seats for such Castes or Tribes; and the manner and periodicity or rotation of such reservation will be such as may be prescribed by the State Government. It is however made clear in sub-Section (3) of Section 12 that if the reservation of seats for the Scheduled Castes or Scheduled Tribes ceases in the Legislative Assembly of the State under the Constitution, then such a reservation would also cease for the Zilla Parishad.

In regard to the reservation of seats the State Government ahs framed under its notification dated 18-7-1985 the Maharashtra Zilla Parishads Scheduled Castes and Scheuled Tribes (Manner of Reservation of Seats) Rules. 1985 (for short, "the Zilla Parishad Reservation Rules). Rules 3 of the said Rules provides that for every general election to a Zilla Parlishad the State Government shall, having regard to the percentage of the population of the Scheduled Castes and Scheduled Tribes to the total rural population in the district, derter mine the number of seats to be reserved for such Castes or Tribes which shall be in proportion to the total number of seats for the Councillors to be chosen by direct election from the electoral divisions, as determined under clause (a) of sub-Section (I) of Section 9. The note under the said rule makes it clear that the proportion means proportion of the Castes or Tribes population to the total population. Rule 4 them provides for the manner of distribution of seats, reserved for the Scheduled Castes and Scheduled tribes. It states that the numbers of seats reserved for the Scheduled Castes and Scheduled Tribes, as determined under Rule,3, shall be distributed among the electoral divisions in the district where the percentage of the Scheduled Castes or Scheduled Tribes population with the total rural population of the electoral division is the highest. The seats have to be distributed in the descending order. Sub-rule (2) of Rule 4 then provides that the State Government shall publish by notification in the Official Gazette, the electoral divisions in which the seats have been reserved for the Scheduled Castes and Scheduled Tribes.

7.The other provisions relevant to the election of the Councillors of the Zilla Parlishad are contained in Section 13 to 18 of the Act . Section 13(I) adopts the relevant extract of the electoral roll of voters of the Assembly constituency in which the electoral division falls as a list of voters for such electoral division. Section 14 provides for framing of the rules for the conduct of the elections to the Zilla Parlishad and for announcement of the election programme by the Collector. Section 15 enables any person whose name is borne on the list of voters of any electoral division to contest the election from any electoral division unless he is disqualified. Section 16 lays down the disqualification for being elected as a Councillor. Section 17 confers a right of vote upon all the persons whose names are borne in the list of voters subject to disqualification''s and/or restrictions referred tot herein. Section 18 makes the list of voters final and conclusive.

We may now turn to the provision concerning the elections to the Panchayat Semites under the Act . Section 56 provides that for every Block there shall be Panchayat Samiti. Sub-Section (I) of Section 57 provides for te composition of the Panchayat Samiti which consists of elected Councillors from the electoral divisions included in the Block, the co-opted Councillors and ex-officio Members besides two members elected by direct election from the electoral colleges as provided in clause (f) of the said sub-Section (I0 of Section 57.

Section 58 of the Act then provides for creation of two members in the Block. It is provided in clause (a) of sub-Section (1) of Section 58 that each electoral division in the Block shall be divided into two electoral colleges in accordance with the Rules made by the state Government , so however, that there is one member as far as reasonably practicable for not more than every 20,000 of the population Clause (a-a) of sub-Section (1) of Section 58 which is relevant for our purpose, then provides that where the state Government having regards to the population of the Scheduled Tribes in the Black, is the opinion hat reservation of seats in any electoral collage for the reprea

Sensation of such Castes of Tribes is necessary, than it may reserve seat for such Castes or Tribes. It also provides for the manner and periodicity of rotation of such reservation which would he such as may be prescribed by the State Government . In Claus (a-b) of sub-Section (1) of Section 58 it is provided that if the reservation of seats for the Scheduled Castes or Scheduled Tribes ceases in the Legislative Assembly under the Constitution of India then it will also cease for the Panchayat Samits also. The State Government by its notification dated 18-7-1985 has frames u/s 58 (1) (a-a) of the Act , the Maharashtra Panchayat Semites Scheduled Castes and Scheduled Tribes (Manner of Reservation of Seats) Rules, 1985. For reservation of seats in the elections to the Panchayat Semites under the Act (for short and the provision of Rules 3 and 4 of the said rules in regard to the manner of reservation are almost similar to the Zilla Parishad Reservation Rules refereed to above.

The other relevant provisions relating to the elections to the Panchayat are contained in Section 58(1) (b) and Section 58(1A) of the Act . Section 58(1) (b) adopts the relevant extract of the list of voters of the electoral division referred to in Section 13(1) of the Act as the list of votes for the electoral collage for the election of the Member to the Panchayat Samiti. Section 58(1A) makes the provision of Sections 14,15,16,17 and 18 of the Act mutatits mutants applicable to the Members of the Panchyat Samiti as they apply in relation to the Councillors of the Zilla Parishad.

It is clear from the above provisions that for determination of the constituencies including the reserved constitutions for the election to the Zilla Parishads and the Panchayat Samitis the population figures are materials. The expression ''population ''occurring in the aforesaid relevant provision of the Act was originally defined in Section 2(20A) of the Act as follows.

'' "Population means the population as ascertained in the 1971 Census until the relevant figures for the first census taken after the year 2000 have been published".

It is clear from the said definition that the revelant population figures as per the said definition were the population figures as ascertained at the last processing census which would mean the census in question under the Act .

It is on the basis of the aforside definition of the expression ''population'' that the State Government , by its notification dated 20-3-1985 (see Annexure II in writ petition No. 2162 of 1985),had in the exercise of the powers conferred upon it u/s 274(2) of the Act and Rule 2 of the then exiting Mahsrashtra Zilla Parishads Scheduled Castes and Scheduled Tribes (Manner of periodicity of Rotation and Reservation of seats) Rules 1967 and in suppression of its earlier notification in regard to creation of electoral divisions and reservation of Seats, issued the Rules for creations of electoral divisions and reserved seats for the ensuring Zilla Parishads Elections. It may be seen that such Rules are framed by the State Government for each district and the rules incorporated in Annexxure II of the writ petition No. 2162 of 1985 are specimen Rules for the Zilla Parishad. Nagpur, styled as "Nagpur Zilla Parishads Electoral Divisions and Reservation of Seats Rules 1985 which give the electoral division and the reserved seats for the Scheduled Castes and Scheduled Tribes under the Nagpur Zilla Parishad . Similar rules are also framed for creations of seats for the Scheduled Castes and the Scheduled Tribes in the elections of the Panchayat Samitis under the Act .

It is material to see that the above rules relating to electoral divisions and the reservation of seats for the Scheduled Castes and Scheduled Tribes in the Zilla Parishad election and similar rules in the Panchayat elections were made on the basis of the population figures of 1981 in accordance with the aforesaid definition of the expression ''population''. However the definition of the expression ''population '' was amended by Section 4 of the Maharashtra Act Nbo.12. of 1985 and a new definition of ''population ''was substituted in place of the old one. The said new definition of the word ''population ''in clause (20A) of Section 2 of the Act reads as follows:

" Population means the population as ascertained in the 1971 Census until the relevant figures for the first census taken after the years 2000 have been published."

It appears from para 4 of the Statement of Objects and Reasons of the Bill for the Maharashtra Act No. 12 of t1985 as well the preamble of the said Act that since as the Preamble of the said Act that since the villagewise 1981 census figures in respect of whole of the State had not been published and in view of the objections received and representations heard in respect of the finalization of the Zilla Parishads Electoral Divisions Rules and the Panchayat Samits Electoral Colleges Rules it was considered necessary to adopt the figures of 1971 census till the relevant figures for the first census taken after the year 2000 were published . Thus the population figures for the purposes of the Act as per the new definition were those as ascertained in 1971 census. After the aforesaid definition of the expression ''population'' was substituted by the Maharashtra Act No. 12 of 1985 the State Government in suppression of the aforesaid Electoral Divisions and Reservation of Seats Rules promulgated new Rules by its notification dated 4-9-1985 creating electoral divisions and the reserved seats for the Scheduled Castes and the Scheduled Tribes on the basis of census of 1971. A true copy of the said Rules relating to Bhanadara Zilla Parishad is filled in writ petition no.2210 of 1985 as Annexure ''B''.

It is pertinent to see that the total seats as well as the seats reserved for the Scheduled Tribes were more as per the Electoral Divisions and Reservation of Seats Rules framed on the basis of the census of 1981 as compared to such seats created on the basis of the census of 1971. This is clear from the chart filed on para 20 at page 15 of the writ petition No.2210 of 1985 which gives the figures of total seats and reserved seats for the Scheduled Tribes on the basis of 1981 census and the 1971 census. It is because of this lowering of the total seats as well as the seats reserved for the Scheduled Tribes that the petitioners in the new definition of the expression''population '' on the ground that it is arbitrary and discriminatory is liable to be struck down under Articles 14 of the Constitution of India. A particular challenge in respect of reservation of seats for the scheduled Trebles is raised on the ground that the census figures of 1971 even ;population'' would mean the census figures as modified under the Act No. 108 of 1976.

Turning now to the first contention raised on behalf of the petitioners viz. That the new definition of the expression ''population ''substituted in clause (20A) of Section 2 of the Act by the Maharashtra Act No. 12 of 1985 is arbitrary, discriminatory and is violative of Act . 14 of the constitution since it artificially freezes the populations figures up to the first census after 2000 A.D. the 1971 census , it may be se submission is that the freez.... Population figures artificially depute the fact of common knowledge that the population would increase substantially till 2000A.D. or even every ten years which is the period after which a new census is undertaken would adversely effect the electoral rights of the people voting in the elections to the Zilla Parishads and the Panchayat at Samitis and in particular the right of being represented property because although the population would increase the electoral constituencies would stand restricted or frozen to the population in such electoral constituencies as ascertained in the 1971 census. The above contention raised on behalf of the petitioners in those writ petitions is in fact no more resintegra because it stands concluded by the judgment of the Division Bench of this Court (Dharmadhikari and Kanthariya.JJ,) in writ petition No.4382 of 1985 Kondaji Sajan Dhongde v. State of Maharashtra decided on 9-9-1986 at Bombay. However, even if we were free to consider the above contention independently of the above decision, it is difficult for us to accept the above contention raised on behalf of the petitioners.

In our view , a is rightly held in the aforesaid decision of this Court that is a well-settled principal that the right to voter stand as a candidate for the election is not a civil or a statute or a specie; law and must be subjected to the limitations imposed by it. It may further be seen that the right of any person to vote or stand for the elections is not affected because of the freezing of population figures to the census figures of 1971 by the new definition of the expression ''population'' inserted by the Maharashtra Act . No. 12 of 1985. If he is otherwise eligible under the Act to vote and stand for the election to the Zilla Parishads and/or the Panchayat Semites under the Act .

However , the only effect, if at all the said definition of the expression ''population'' may have is upon the composition of the constitutions for direct elections to the Zilla Parishad and/ or the Panchayat Samiti under the Act because although the populations of any Zilla Parishad or any Panchayat as he case may factuality be more still the electioned divisions or the electoral colleges for the purpose of the direct election of the councillors of the Zilla Parishad or of the members of the Panchayat Samiti under the Act would be artificiality created on the basis of the census figures of 1971. The submission, therefore, urged on behalf of the petitioners is that the voters in the elections to the Zilla Parishads and the Panchayat at Simitis under the Act have a right of being adequately or property represented by the representatives chosen in accordance with the provisions of the Act . In other words the submission is that if the population actually increases the number of seats available for the elected Councilor''s in thee Zilla Parishad and for the elected members in the Panchayat Samitis should be more which would so but for the freezing of the population figures under the new definition of the expression ''population''.

19 . In appreciating the above contention urged on behalf of the petitioners it may be seen that as per Section 9(1) of the Act the electoral divisions from which the Councilor''s are elected to the Zilla Parishads are to be determined by the state Government in such manner that there should be one councilor as for as is reasonably practicable for not more then 40,000 of the population . As regards, the elections to the Panchayat Samitis it may be seen that as per Section 58(1) (a) each electoral division in the Block is divided into two electoral colleges in such manner that there should be one member elected from an electoral college having as for as reasonably practicable a population of not more than 20,000. It is thus clear from the aforesaid provisions that as far as possible a population of about 40,000 as represented by one elected Councilor in the Zilla Parishad and as far as possible a population of 20,000 is represented by one elected member in the Panchayat Samiti.

It is, however, pertinent to see that u/s. 9 (1) of the Act the right of being represented by the councillors chosen by direct election from electoral divisions is itself itself a restricted right as such elected councillors cannot be more than 60 in number and less than 40 as may be determined by the state Government, It is , therefore , clear that even though the population of the Zilla Parishad may warrant creation of more than to electoral divisions on the basis of its population, still the total number of elected councillors in the said Zilla Parishad cannot exceed 60 which is thus itself a restrictions upon the alleged right of being represented adequately and property on the basis of the population figures. A similar restriction is also out in regard to Panchyat Samiti as only two members can be elected from the electoral colleges which are created u/s 58(1) (a) of the Act .

In our view, the alleged right of being property represented is neither a common law right nor a constitutional right but is a creation of the statute itself and is regulated by it. As pointed out above, the said right is not an untrammeled right as the representation by the elected members solely on the test of population figures cannot indefinitely increase but is restricted to a particular numbers of seats to be determined by the State Government provided u/s 9(1) of the Act for direct election to the Zilla Prrishad and to two seats for direct election to the Panchayat Samiti. The expression ''as far as reasonably practicable used in Section 9(1) an din Section 58(1) (a) of the Act indicates. The limitation of the alleged right of representation by elected representative on the basis of the population figures. According to us, the nature , extent and the manner of representation of the Legislature enacting the statute relating to elections. The definition the of the expression ''population'' therefore , cannot thus be challenged as arbitrary or discriminatory, much less it can be said that it is violative of Act . 14 of the constitution.

Looking at it from another angle it may be seen that when the alleged right of representation is regulated by the statute it is open to the Legislature to amend Section 9(1) and Section 58(1)(a) of the Act and provide for a higher basis of population for creation of electoral divisions or the electoral colleges. As the case may be, instead of providing that the population figures as remain frozen to the census figures as ascertained in 1971. Had it been done, since as already pointed out, the matter is entirely within the discretion of the Legislature, such an amendment would not have been open to challenge on the ground of discrimination under Article 14 of the Constitution. Instead of adopting that mode if the Legislature has chosen or adopt the mode of freezing the population figures to the census of 1971upto the first census after 2000 A.D. we do not think that such a definition of the expression population is violative of Article 14 of the Constitution. It may be seen in this regard that the Legislature has chosen such a mode of amending the definition of the word ''population'' following the pattern of amendment made by the Parliament which introduced a similar definition of the word ''population'' in the last provision to Article 81(3) and in the proviso to Art. 1978 for the purpose of delimitation of seats in the elections in the Parliament and the Legislative Assemblies. It is not, therefore possible for us to accept the contention on behalf of the petitioners that the new definition of the expression ''population'' offends Articles 14 of the Constitution.

The learned counsel for the petitioners in writ petition no. 2162 of 1985 has in support of his contention under Article 14 relied upon the decision of the U.S. Supreme Court in the case of Reynolds v. Sims (1964) 377 US 533: 12 Law ed 2d 506. In appreciating the ratio of the majority decision in the State Constitution of Alabama itself it was provided that he legislature be reapportioned every ten years on the basis of population, but with the qualification that each country be allocated at least one representative and no country be entitled to more than one senator. However, no apportionment had taken place since 1901. It was found that under the existing scheme approximately a quarter of the population could elect a majority of the State Senators and about the same proportion could elect a majority of the State representatives. It was shown in the said case that the voting power of constituents(i.e. ratios of people to legislators) varied by as mush 41-1 among senate districts and up to 16-1 among districts in the lower house. It is on these facts that the Federal District Court held in the said case that the aforesaid apportionment was in violation of the plaintiffs rights to equal protection of the laws under the Fourteenth Amendment. The Alabama legislature had during the pendenncy of the proceedings before the Federal District court adopted two apportionment plans neither of which however, apportioned the legislative districts solely on the basis of population whereupon the District court held the plans unconstitutional. The above judgment of the Federal District Court was upheld by the U.S. Supreme Court by majority with justice Harlarn dissenting.

The learned counsel for the petitioners has relied upon certain observations of the majority judgment rendered by Chief Justice Warren in support of his submissions.the learned Chief justice relied upon the judgment in Baker v. Carr (1962) 369 US 186: 7 law ed 663, for the proposition that a claim asserted under the Equal Protection Clause challenging the constitutionality of a States apportionment of seats in its legislature, on the ground that the right to vote of certain citizens was effectively impaired since debased and diluted in effect presented ajusticialble controversy subject to adjudication by Federal Courts. He also riled upon the following observations in the case of Wesberry v. Sanders. (1964) 376 US 1: 11Lawed 481

" It would defeat the principle solemnly embodied the Great Compromise - equal representation in the House for equal numbers of people - for us to held that, within, the States. Legislatures may deaw the lines of congressional districts in such a way as to give some voters a greater voice in choosing a Congressman than others......."No right is more precious in a far country than that of having a voice in the election of those who make live, Other rights even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this in away that unnecessarily abridges this right, " (See p. 526 of the report in Reynoldsv. Sims. (1964) 12 Law ed 506

The learned Chief justice has then himself if observed:

" Legislators represent people. Not trees or acres. Legislators are elected by voters, not farms or cities or economics interests. As long as ours is a representative form of government, and out legislatures are these instruments of government elected directly by and directly representative of the people , the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system ....... It would appear extraordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State''s voters could vote two. Five or 10 times for their legislative representatives, while voters living elsewhere could vote only once..... One must be ever aware that the Constitution forbids " sophisticated as well as simple minded modes of discrimination." (See pp 537 and 528. Reynolds v. Sims.1964 12 Law ed 506:

The learned Chief Justice, thus held that the dilution of the weight of the votes by any means , whether sophisticated or simple mined, of the voters in one part of the States as compared to another favored part was discriminatory and was counter to the fundamental ideals of democratic government.

As regards the discretion of the states in regard to the apportionment of seats the learned counsel for the petitioners has relied upon the following observations of the learned Chief Justice at page 5.30 of US (1964) 12 Law ed 2d 506:" We are told that the matter of apportioning representation in a State legislature is a complex and many-faceted one. We are advised that States can rationally consider factors other than population in apportioning legislative representation . We are admonished not to restrict the power of the States to impose differing views as to political philosophy on their citizens We are cautioned about the dangers of entering into political thickets and mathematical quagmires. Our answer is this: a denial of constitutionally protected rights demands judicial protection, our oath and our office require no less of us."

The learned Chief Justice ultimately held that as a basis constitutional standard the Equal Protection Clause requires that the seats in both houses of a bicameral States legislature must be apportioned on a population basis, and that tan individual''s right to vote for state legislators in unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes citizens living in other parts of the States. According to him, to the extent that citizen''s right to vote is debased. He is that much less a citizen. Further according to him, the fact that an individual lives here or there is not a legitimate reasons for overweighing or diluting the efficacy of his votes. He thus held that as a Federal Const it utional prerequisite both houses of State legislature must be apportioned on population basis and the Equal Protection Clause would required that a State should made an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable although mathematical exactness may not be possible. He , therefore, upheld the decision of the Federal District court holding the apportionment of seats in Alabama State Legislature as violating the Equal Production Clause

Before we proceed to examine the dissenting view expressed by Harlarn, J. in the aforesaid Reynolds case (1964) 377 US 533) we may usefully refer to the fact that Clark. J and Stewart, aj in their separate concurring opinions felt that the majority judgment was beyond the necessities of the case in taking a right view of " one person., one vote" modified only by the admonition of " nearly as far as practicable"/ For their view in this regard they have relied upon their dissenting judgment in the case of Lucas v. Fourth General Assembly of Colorado (1964) 377 US 713: 12 law ed 2d 632 which was docketed along with Reynolds case, In Lucas '' case Stewart, J. with whom Clark, J concurred, observed ,".... ... .... I think that the Equal Protection Clause demands but two basic attributes of any plan of State legislative apportionment. First , it demands that, in the light of the State''s own characteristics and needs., the plan must be a rational one. Secondly , it demands that the plan must be such as not to permit the systematic frustration of the will of a majority of the electorate of the State. I think it is apparent that any plan of legislative apportionment which could be shown to reflect no policy, but simply artitraty and capricious action or inaction, and that any plan which could be shown systematically to prevent ultimate effective majority rule would be invalid under accepted Equal Protection Clause standards .But , beyond this, I think there is nothing in the Federal Constitution to prevent a State from choosing any electoral legislative structure it thinks best suited to the interests, temper, and customs of its people.".

Turing now to Harkarn, J.''s dissenting view in Reynolds case 1964) 377 US 533 , it may be seen that Harlarn., aj has given a very ela orated and illuminating judgment which is worthy of notice and consideration. He cold truth that generalities cannot obscure the cold truth that the cases of this type are not amenable to the development of judicial standards, which view he held in Lucas case also. According to him, no set of standards can guide a Court which has to decide how many legislative districts a State shall have or what the shape of the district a shall be, or where to draw a particular district line. He observed that no judicially manageable standard can determine whether a State should have single member districts or multimember districts or some commination of both.. He thus held that the cases of such types are not amenable to the development of judicial standards and no such standard on control the balance between keeping up with population shirts and having stable districts.

We may also usefully refer to another decision of the U.S. Supreme Court in regard to the principle of " one man, one vote" enumerated in Reynolds case. In the case of Hank Avery v. Midland Country, Texas (1968) 390 US 474: 20 Law ed 45, the question was whether the Taxas Supreme Court erred in concluding that selection of Midland Country Commissioners court from single-member districts of substantially unequal population did not necessarily violate the fourteenth granted in the said case by the Supreme Court because application of "one man, one vote principle " in Reynolds case 1964) 377 US 533 to units of local government was of broad public importance. The facts in that case were that the Midland Country had a population of about 70,000 and the commissioners Court consisted of five members , one member, the Country Judge , to be elected at large from the entire country, and the other four to be chosen from the District. The population of the Districts according to the showing a great imbalance. Justice White delivered the opinion of the court. Relying upon Sailora v. Board of Education , (1967) 387 US 105: Law ed 2d 650 , he observed:

" The Constitution and the Supreme Court are not roadblocks in the path innovation, experiment. And development among units of local government, ... ..... Our decision today is only that the Constitution imposes one ground rule for the development of arrangements of local government: a requirement that units with general government al powers over an entire geographic area not be apportioned among single member districts of substantially unequal population".

He accordingly vacated the judgment of the federal Court and remanded the case.1971 census as per Section 5 of the Act No. 108 of 1976 are intended for and have relevance only to Parliamentary and Assembly elections for which an express provision is made in Section 6 of the said Act for re-adjustment and modification of Parliament and Assembly constituencies. It is further submitted that Section 5 of the Act No. 108 of 1976 is not at all relevant in interpreting the definition of the word ''population'' as substituted by the Maharashtra Act No. 12 of 1985 and therefore in the said definition the Phrase " the population as ascertained in the 1971 census " means as originally ascertained in the census of 1971 and not as contemplated or modified by Section 5 of the Scheduled Castes and the Scheduled Tribes. It is lastly submitted on behalf of the State that the above contention raised on behalf of the petitioners also stands concluded by our decision cited supra.

For appreciating the rival submissions of the parties upon the second question raised buy the petitioners in Writ Petition no. 2210 of 1985 ,it is necessary to understand the scheme of the Act No. 108 of 1976. As the preamble of the said Act shows, it is passed to provide for the inclusion in and the exclusion from the lists of the Scheduled Castes and the Scheduled Tribes of certain castes and tribes, for the re-adjustment of representation of the Parliamentary and Assembly Constituencies in so far as such re-adjustment is necessitated by such inclusion or exclusion and for matters connected therewith. The Statement of Objects Reasons of the said Act is as under:

" Under the Scheduled Castes and Scheduled Tribes Orders some comminutes have been specified as Scheduled Castes or as Scheduled Tribes only in certain areas of the State Concerned and not in respect of the whole State. This has been causing difficulties to members to these communities in the areas where they have not been so specified. The present Bill generally seeks to remove these area restrictions. However , in cases where continuance of such restrictions were specifically recommended by the joint Committee on the Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill. Committee had also recommended exclusion of certain communities from the list of Scheduled Castes and Scheduled Tribes. These exclusions are not bring made at present and such communities are being retained in the lists with the present area restrictions. Such of the communities in respect of which the joint Committee had recommended exclusion on the ground that they were not found in a State are , however being excluded if there were no returns in respect of these communities in the censuses of 1961 and 1971.

" 2 The proposed amendments in the lists of Scheduled Castes and Scheduled Tribes may lead to an increase in the population of these Castes and tribes and consequently, in the number of reserved seats in the Lok Sabha and certain State Legislative Assemblies.Provisions have therefore been made in the Bill to empower the census authority to estimate the population of the Scheduled Castes and Scheduled Tribes and the Elections Commission to re-allocate the reserved constituencies".

A perusal of the speech of the Honorable Minister for Home Affairs, who introduced the said Bill in the Parliament , would show that the said Act was however only passed for removal of area restrictions in the Scheduled Castes Order. !950, as amended in 1956. ( See Rajya Sabha Debates. Vol. XCVII , Book No. 2, dt, 3-9-76. 18, Cols 7-9) The said Act received the assent of the President on 18-9-1976 but in fact came into force with effect from 27-7-1977 when the Central Government issued the notification as required by sub-Section (2) of Section 1 of the said Act for brining it into force.

Examining the provisions of the Act No. 108 of 1976, it may be seen that clause (a) of Section 2 defines " Census Authority " to mean the Registrar General an Ex-Officio Census Commissioner for India. Clause (d) of Section 2 defines "Last census" to means the census held in India in 1971. Sections 3 and 4 amend the Scheduled Castes Order 1950 and the Scheduled Tribes Order, 1950 , in the manner and to the extent specified in the First and the Second Schedules of the Act respectively, Section 5 which deals with determination of population of the Scheduled Castes and the Scheduled Tribes in view of the removal of area restrictions in specifying the Scheduled Castes and the Scheduled Tribes under the First and the Second Scheduled of the Act respectively, is reproduced below as it calls for interpretation in considering the contention raised in the instant case on behalf of the petitioners"

" 5. Determination of population of Scheduled Castes and Scheduled, Tribes:-

(1) As soon as may br after the commencement of this Act . the population as at the last census of the Scheduled Castes or, as the case may be , of the Scheduled Tribes, in each Statwe shall be ascertained or estimated by the census authority.

(2) Where by reason of the Amendments made by Section 3 or Section 4-

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

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

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

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

(3) The population figures ascertained or determined under sub-Section (2) shall be notified by the census authority in the Gazette of India.

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

Section 6 of the Act No. 108 of 1976 deals with re-adjustment of Parliamentary and Assembly constituencies by the Election Commissioner in the light of the population figures notified for each State u/s. 5(3) of the said Act . Sections 7, 8 and 9 are incidental to Section 6 and are not relevant for our purpose. Section 10 provides that all things done and all steps taken, before the commencement of the Act No. 108 of 1976 by the census authority for the determination of population of Scheduled Castes and Scheduled Tribes, or by the commission for the purpose of readjustment of constituencies shall, in so far as they are in conformity with the provisions of the said Act , be deemed to have been done or taken under the provisions of the said Act as If such provisions were in force at the time such things were done or such steps were taken.

Turning now to Section 5 of the Act No. 108 of 1976, it may be seen that after the commencement of the said Act no obligation cast upon the census authority under sub-Section (I) thereof to ascertain or estimate the population of the Scheduled caste or of the Scheduled Tribes as at the last census which as per the definition in clause (d) of Section 2 means the census of 1971. Sub-Section (2) of Section 5 then provides a mode of determination of the population of Scheduled Castes and Scheduled Tribes in the light of the amendments made by Section 3 or Section 4 of the Act No. 1108 of 1976. It is really speaking this sub-Section (2) which needs to be property construed for the purpose of the decision on this second question raised in these writ petitions. However, as regards the actual question of construction f Section 5(2), we will deal with, a little later. Suffice it to say at this stage that Section 5(2) requires the census authority to ascertain the Scheduled Caste and the Scheduled Tribe population as on 1-4-1971 with reference to the previous census wherein the population figures of the said caste or tribe in respect of the increased area by reason of amendments made by Section 3 or Section 4 of the Act No. 108 of 1976 had been ascertained.

After the population of the Scheduled Castes or the Scheduled Tribes as on 1-4-1971 is determined u/s. 5(2), sub-Section (3)of Section 5 caste an obligation upon the census authority to notify in the Gazette of India the population figures ascertained or determined under the said Section 5(2). Sub-Section (4) of Section 5, which is very material for the purpose of this point in question, provides that the population figures so notified shall be taken to be the relevant population figures as ascertained at the last census i.e. the census of 1971. It clearly provides further that any population figures previously published shall stand superseded and the figures notified under sub-Section (3) of Section 5 shall be final and shall not be called in question in any Court. it is thus clear from the scheme of sub-Section (3) and (4) of Section 5 that the population figures as ascertained and determined under sub-Section (2) of Section 5 for the Scheduled Castes and the Scheduled Tribes in the light of the amendments made by Sections 3 and 4 have to be taken as their population figures in the census of 1971 and the original figures of the census of 1971 in their regard stand superseded.

We now turn to consider the question of construction of Section 5(2) of the Act No. 108 of 1976. The relevant provision for consideration is its clause (a). It is clear from the said clause that the population of the Scheduled Castes or the Scheduled Tribes is to be ascertained or determined thereunder as on 1-4-1971. The said ascertainment is made because in the new schedules for the Scheduled Castes and the Scheduled Tribes give in the Act No. 108 of 1976 the locality in the State specified in relation to any caste or tribe in the original Scheduled Castes Order or the original Scheduled Tribes Order is varied so as to specify a larger area in relation to such caste or tribe. The mode for ascertainment or determination adopted under clause (a) is that the census authority has to take into account the population figures of the caste or the tribe as ascertained in the 1971 census and in any previous census wherein the population figures of the caste or the tribe in respect of the increased area had been ascertained. It is thus clear that the population figures of such previous census are relevant in which there is ascertainment of the population of the caste or the tribe in respect of the area specified in the First and the Second Schedules of the Act No. 108 of 1976.

After getting such population figures of the previous census for the Scheduled Caste or the Tribe the next step to be taken u/s 5(2) (a) is to get the figures of the general population of the State or, as the case may be, of the increased area with reference to which such caste or tribe is specified in the First and the Second Schedules, in the census of 1971 as well as in the previous census referred to above and from the said figures of the general population determine the proportion in which the general population has increased or decreased between the previous census and the census of 1971. It is in this proportion of increase or decrease of the general population between the previous census and the census of 1971 that the population figure of Scheduled Caste or Scheduled Tribe ascertained in the previous census has to be increased or decreased. After the new population figures of the Scheduled Caste or Scheduled Tribe of the previous census is thus determined that figure has to be substituted as the population figure for Scheduled Caste or Scheduled Tribe of the previous census is thus determined that figure for Scheduled Caste or Scheduled Tribe in the census of 1971 as per clause (a) of sub-Section (2) of Section 5.

The proviso to sub-Section (2) of Section 5 shows that it would not be necessary for the census authority to determine the population of any Scheduled Caste or Scheduled Tribe as on 1-4-1971, if the population of that caste or tribe was not ascertained at the last census and in any of the previous censuses and is, in the opinion of that authority, numerically small. However, we are not concerned with the above proviso in the instant case because in the first place, there is no question of ascertainment of population of any particular scheduled caste or tribe as such in the instant case and secondly, because in fact there is an ascertainment of the Scheduled Caste or the Scheduled Tribe population made under sub-Section (2) (a) of Section 5 by the census authority with reference to the previous census. There is also an explanation ot sub-Section (2) of Section 5, according to which, where the population figures of any caste or tribe in respect of any increased area referred to in clause (a) are ascertained in more than one previous census, the census authority has to taken into account, for the purposes of that clause, the ascertained figures of such caste or tribe ascertained in the previous census which is nearest in point of time to the last census (under lining ours).

The crucial question, however, in construing clause (a) of sub-Section (2) of Section 5 is what the expression ''previous census'' means. The expression ''previous census'' is not defined in Act No. 108 of 1976. According to us, read in the proper light and the context of clause (a) itself it would mean a census prior to 1971 in which not only the population figures of the Scheduled Castes and the Scheduled Tribes in the increased area under the First and the Second Schedules of the Act No. 108 of 1976 are ascertained but in which the general population figures are also ascertained because it is in the proportion of the figures of the general population of the previous census and the census of 1971 that the population figures for the Scheduled Caste or the Scheduled tribes in the previous census wherein the population figures of such castes or tribes for the increased had been ascertained have to be determined. Normally , therefore, according to us, such a census can be of 1961, or 1951, or any other census prior to 1971, for which the population figures of the Scheduled Castes or Scheduled Tribes in the increased area as well as the general population figures are ascertained and are available.

As we have already pointed out, the census authority has taken action under clause (a) of sub-Section (2) of Section 5 of the Act No. 108 of 1976 and has published the population figures of the Scheduled Castes and the Scheduled Tribes under sub-Section (3) thereof as per its notification dated 20-81977. Since the census authority had taken action under clause (2) of sub-Section (2) of Section 5 and had ascertained the population figures of the Scheduled Castes and the Scheduled Tribes thereunder, we had asked the learned counsel for the State to show to us on what basis the figures shown in the notification dated 20-8-1977 for the Scheduled Tribes in the State of Maharashtra were arrived at by him. That would have shown to us what the previous census was on the basis of which the census authority made its determination under clause (a) of sub-Section (2) of Section 5. We are, however, pained to state that the attitude of the State Government is not very much co-operative in this regard and it ahs not enlighted us upon the above question although it could have easily collected such information relating to the previous census in question when its own officers actually do the census work under the Census. Act , although the intention to have the census is declared by the Central Government u/s. 3 of the said Act and although the Census Commissioner and Directors of Census Operations are appointed by the Central Government. It may also be seen in this regard that the office of the Superintendent of Census Operation for the State of Maharashtra is in Bombay from whom the State could have transmitted such information.

When the information relating to the previous census on the basis of which the census authority made its determination of the Scheduled Tribes population u/s. 5(2)(a) of the Act No. 108 of 1976 did not come forth, the petitioners took inspection of the file from the Tribal Development Office at Nagpur and made a statement before us that it contains relevant documents indicating that some census o Scheduled Tribes population was carried out by the State itself. We, therefore, directed the State to produce the said file before us which it had produced. From the perusal of the documents in the said file it is found that a census of Scheduled Tribes population in the State of Maharashtra was made by the Commissioner, Nagpur Division, Nagpur in the districts of the Vidarbha Region of the State in accordance with the letter No. TDB 1064-54800-Q, dated 13-1-1965, addressed by the State in its Rural Development Department to the Commisioner, Nagpur Division, Nagpur. The said letter shows that since in the Fourth and Fifth Plans the Central Government was giving more concessions and facilities to the Scheduled Tribes and since the question of removal of area restrictions in determining the question whether a particular tribe living in non-specified area is a Scheduled Tribe or not was under consideration of the Central Government, a census of Scheduled Tribes in non-specified areas as on 1-3-1965 was directed to be undertaken with a view to create Tribal Welfare Blocks in non-specified areas also. It is clear from para 3 of the aforesaid letter dated 13-1-1965 that it was to be a regular census and was to be carried out under the advice of the Superintendent of Census Operations, Bombay and by the staff specially appointed for the said purpose. A perusal of the census operations carried out in the Vidarabha Region as contained in the documents in the aforesaid file would show that the said operations are carried out scientifically and systematically by preparing proper village forms in consultation with the Superintendent Operations and getting them duly filled in. All the figures of population arrived at, at various stages, are tested and corrected in consultation with him. Such figures for each district, taluka and panchayat samiti are prepared and are found in a tabulated form in the said file for the Vidarabha Region of the State.

It is, therefore, urged on behalf of the petitions that the above census held pursuant to the aforesaid letter dated 13-11965 of the State Government was a regular census made for ascertainment of the Scheduled Tribes population. It is further urged on behalf o the petitioners that it was the aforesaid census carried out pursuant to the letter dated 13-1-1965 which was taken into consideration while determining the Scheduled Tribes population u/s. 5(2) (a) of the Act No. 108 of 1976 as it was a previous census within the meaning of the aforesaid provision. The learned counsel for the State has however, denied that the aforesaid census carried out pursuant to the letter dated 13-1-1965 was a regular census as contemplated by the Census Act . He has urged that it was a census carried out for the purpose of creation of the Tribal Welafare Blocks in non-specified areas with a view to make available to the tribals living therein the facilities and concessions granted by the Central Government to them. The submission, therefore, on behalf of the State is that the above census was not a previous census as contemplated by Section 5(2) (a) of the Act No. 108 of 1976. Apart from the question whether the above census is a regular census or not within the meaning of the Census Act the fact remains that this is not a general census in which the general population in the State is determined making available the population figures of the general population of the State or of the increased areas as per the First and the Second Schedule of the Act No. 108 of 1976. The said census could not have, therefore, been taken into consideration in determining the Scheduled Tribes population as on 1-4-1971 under Clause (a) of sub-Section (2) of Section 5 of the Act No. 108 of 1976.

Since the parties have not thus thrown any light on the question what the ''previous census'' was on the basis of which the census authority ascertained the population figures under clause (a) of sub-Section (2) of Section 5, it is not possible for us to determine how the census authority ahs arrived at its figure of the Scheduled Tribe population for the State of Maharashtra as given in its notification dated 20-8-1977 issued u/s. 5(3) of the Act No. 108 of 1976. However, that would not mean, as we would presently show, that the State Government is absolved from its responsibility to take into consideration the population figure of Scheduled Tribes determined by the census authority u/s. 5(2) of the Act No. 108 of 1976.

the main question which we have now to consider is whether the phrase "population as ascertained in the 1971 census" occurring in the new definition of the word "population" inserted by Section 4 of the Maharashtra Act No. 12 of 1985 means in regard to the Scheduled Castes and the Scheduled Tribes population, he population as ascertained in the original census of 1971 in accordance with the provisions of Section 5(2) of the Act NO. 108 of 1976. As is clear from the provisions of Section 5(4) of the Act No. 108 of 1976, since the original population figures of the Scheduled castes and the Scheduled tribes population in the census of 1971 stand superseded by the population figures as ascertained u/s. 5(2) and as notified u/s. 5(3) of the aforesaid Act , the original population figures for them are no more in existence and, therefore, the phrase "the population as ascertained in the census of 1971" occurring in the new definition of the word "population" must mean in regard to the population of the Scheduled Castes and the Scheduled Tribes population as notified u/s.(3) of the aforesaid Act as it supersedes the original population figures for them in census of 1971.

While construing the new definition of the word "population" it is pertinent to see that the Maharashtra Act NO. 12 of 1985 is passed a long time after the Act No. 108 of 1976 had come into force and even much after the census authority had issued the notification under sub-Section (3) of Section 5 of the said Act thus modifying the original population figures of 1971 census in regard to the Scheduled Castes and the Scheduled Tribes population after ascertaining them in accordance with the provisions of sub-Section (2) of Section 5 of the said Act . With this background in mind, examining the provisions of the Maharashtra Act No. 12 of 1985, it is clear that neither its preamble nor the provisions of its Section 4 which inserts the new definition of the expression ''population'' given any indication that the expression ''population'' means in regard to the Scheduled Castes and the Scheduled Tribes the population as ascertained in the 1971 census prior to its modification u/s 5 of the Act No. 108 of 1976. Its preamble only shows that since the village wise population figures of 1981 census were not published not published and since there were objections raised in respect of the finalisation of the Electoral Divisions Rules and the Panchayat Samit is Electoral Colleges Rules, it was though expedient to adopt the figures of 1971 census in the elections to the Zilla Parishads and the Panchayat Samitis under the Act . It is clear from the above recitals in the preamble that because the State Government was faced with the difficulty of non-availability of the village wise figures of 1981 census in regard to the general population in the State which was necessary for forming the Electoral Divisions and the Electoral Colleges that the census figures of 1971 were adopted for the said purpose.

It is true that in interpreting a stature it is the duty of the Court to ascertain the intention of the Legislature, actual or imputed which can be gathered from several sources such as the provisions of the statute itself, its preamble, the statement of objects and reasons and other legitimate sources which can throw light upon the intention of the legislature, Regard can be had to the legislative history also. (Sec Girdhari Lal and Sons Vs. Balbir Nath Mathur and Others, ). But none of the above factors are helpful in the interpretation of the phrase, "population as ascertained in he 1971 census" occurring in the new definition of the word ''population'' so as to show that what was meant by the said phrase in regard to the Scheduled Tribes population was the population as originally ascertained in the census of 1971 prior to its modification as notified u/s. 5(3) of the Act No. 108 of 1976.

However, the most useful canon of construction which can be pressed into service in the interpretation of the new definition of the expression ''population'' is that judicial notice ought to be taken of such facts which must be assumed to have been within the contemplation of the legislature when the contemplation of the Legislature when the Act in question was passed. (See in this regard Gofindan Pillai v. Punchi Banda Mudanayake, (1955) 32 All ER 833 (PC). In our view, such facts of which the knowledge can be attributed to the State would include the State of law when the Act in question was passed. It may be stated that while enacting Maharashtra Act NO. 12 of 1985 the State Legislature was and should be presumed to be aware of the provisions of the Act No. 108 of 1976 and, therefore, of the modification made by S. 5 of the said Act in the population figures of the Scheduled Caste and the Scheduled Tribes in the census of 1971 in the light of its provisions. Not only that, it must be presumed to be aware of the legal position that the said population figures of the Scheduled Castes and the Scheduled Tribes as ascertained u/s. 5(2) would, by virtue of Section 5(4), supersede the population figures relating to them in the original census of 1971 and that the said population figures had in fact stood superseded by the notification of the census authority dated 20-8-1977. Therefore, even though aware, if the State Legislature does not use clear language to depart from the said ascertainment of the population figures of the Scheduled Castes and the Scheduled Tribes made u/s. 5(2) of the Act No. 108 of 1976 in enacting the new definition of the word ''population'' in Maharashtra Act No. 12 of 1985 an intention will have to be attributed to it that the said population figures are not intended to be departed from in enacting the said new definition of the expression ''population'' in the Maharashtra Act No. 12 of 1985.

It is also well settled by the decision of the Supreme Court in Babaji Kondaji Garad Vs. Nasik Merchants Co-operative Bank Ltd., Nasik and Others, and in Kumari Suneeta Ramchandra Koyalamudy Vs. State of Maharashtra and Another, that the intention of the Legislature must be gathered from the words of the statute and not from what the Government professes if to be when it has translated its intention into a statute or a rule. It may be that sometimes what is in he mind of the Govenrment has misfired because the appropriate language is not sued in the statute or because the situation it is required to face now is not comprehended by it at the time of the passing of the statute. Nonetheless, what the Government has intended has to be seen from the language of the statute itself. It is not, therefore, possible for us to accept the contention of the State Government in this regard.

In our view, we must also place the above construction for another reason that when the legislature seeks to freeze the electoral rights of the voters by not allowing revision in their electoral constituencies till the first census figures after 2000 A.D. are published the interpretation given should be such which would protect the electoral rights of the voters and in particular the weaker sections of the society who would be entitled to additional seats if the population figures of to additional seats if the population figures of 1971 census in regard to them are as notified u/s. 5(3) of the Act No. 108 of 1976. In fact the legislative history of Act NO. 108 of 1976 will show that although it is enacted in 1976 the question of removal of area restrictions the question of removal of area restrictions for notifying Scheduled Castes and Tribes was raised long back and was in fact in the contemplation of Parliament itself when a bill in that regard was introduced in 1967 i.e. Bill NO. 119 of 1967 for enacting the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act , 1967, but which had unfortunately lapsed. In the circumstances we should not give such an interpretation to the new definition of the word ''population'' which would deprive the Scheduled Tribes Population of additional seats till the first census after 2000 A.D. Our construction of the new definition of the word ''population'' is consistent with and is in furtherance of the policy of reservation in our Constitution and the rule in this regard propounded by the Supreme Court in the case of Babaji Kondaji Garad Vs. Nasik Merchants Co-operative Bank Ltd., Nasik and Others, . The Supreme Court has observed in the above case that any provision making reservation must receive such construction as would advance the purpose and the intedment underlying the provision making reservation and not thwart it.

The learned counsel for the State has, however, objected to the above construction of the new definition of the word ''population'' on two grounds. Firstly, according to him, as stated in the preamble to the Maharashtra Act No. 12 of 1985 since the village wise figures of the census of 1981 are not available it would not be possible to form reserved constituencies for the elections under the Act if the population figures for the Scheduled Castes and the Scheduled Tribes as notified u/s. 5(3) of the Act No. 108 of 1976 are required to be taken into consideration. Secondly, his objection is that the population figures of the Scheduled Castes and the Scheduled Tribes notified u/s. 5(3) of the aforesaid Act are relevant only for the elections to the Parliamentary and Assembly constituencies as envisaged by Section 6 of the aforesaid Act and are not relevant for the purpose of elections to the Zilla Parishads and the Panchayat Samities under the Act .

In considering his first objection it may be seen that the preamble to the may be seen that the preamble to the Maharashtra Act No. 12 of 1985 refers to non-availability of the population figures of 1981 census and, therefore, seeks to adopt the census figures of 1971 which in fact are adopted in the new definition of the expression ''population'' inserted by the aforesaid amending Act . When the population figures of 1971 are adopted by the aforesaid amending Act in the context of non-availability of village wise population figures of 1981 census it would mean that village wise figures of 1971 are available for formation of the constituencies under the Act . At any rate there is no data placed on record to show that in the census of 1971 as modified in regard to the Scheduled Castes or the Scheduled Tribes population by the figures notified u/s. 5(3) of the Act No. 108 of 1976 no village wise population figures in their regard are available for the increased area specified for them under the First and the Second Schedule of the Act NO. 108 of 1976. It is not, therefore, possible for us to accept the above objection raised on behalf of the State relying upon the preamble to the Maharashtra Act No. 12 of 1985.

It is, however, urged that the notification dated 20-8-1977 issued by the census authority u/s. 5(3) of the Act No. 108 of 1976 gives only the figures of the Scheduled Castes and the Scheduled Tribes population in the whole State and does not give village wise figures for the Scheduled Castes and the Scheduled Tribes population. There is no merit in the above contention also. It should be a matter of common knowledge that when the population figures for the whole State are to be prepared in regard to the Scheduled Castes and the Scheduled Tribes population with reference to the increased area specified in the First and the Second Schedule of the Act No. 108 of 1976, the village wise figures in such increased area would have to be first complied or should be available. The census operation first require compilation of village wise figures which then go to make taluka wise, district wise and State wise figures of population. The has, therefore, to be held that when the State wise figures are notified u/s/ 5(3) of the aforesaid Act it would mean that the census authority has in ascertaining them complied village wise. Taluka wise, and district wise population figures.

57A. It may, however, be seen that as regards ascertainment of population figures u.s. 5(2) of the Act No. 108 of 1976 for the Scheduled Castes and the Scheduled Tribes which have been notified u/s. 5(3) of the aforesaid Act the basis taken is of the population figures for the Scheduled Castes and the Scheduled Tribes in the previous census in which such population figures are available for them in the increased area specified in the First and the Second Schedule of the aforesaid Act . it would, therefore, be clear that since the determination of the population figures for them in the census of 1971 is with reference to such previous census in which the population figures are available in the increased area for the Scheduled Castes or the Scheduled Tribes, it is such population figures of the previous census which have to be taken into consideration in the census of 1971. Thus for taking action u/s. 5(2) it is necessary that the village wise population figures for such previous census must be and are available. At any rate, there is no data placed on record to show that the village wise population figures in the increased area for the Scheduled Castes and the Scheduled Tribes in such previous census as required by Section 5(2) of the aforesaid Act are not available. We may, however, express a word of caution that, as already pointed out, it is not possible for us to give any definite finding in this regard as the State Government had unfortunately placed no material before us to show what the previous census was no the basis of which the census authority ascertained the Scheduled Castes and the Scheduled Tribes population in the increased area in accordance with the provisions of Section 5(2) of the Act No. 108 of 1976. The fact, however, remains that such an ascertainment on the basis of previous census is made by him u/s. 5(2) of the aforesaid Act which is clear not only from his notification dated 20-8-1977 issued u/s. 5(3) of the aforesaid Act but also from the fact that he had actually commenced his work in that regard prior to the commencement of the aforesaid Act for which reason his acts are validated by Section 10 of the aforesaid Act .

In this regard it may further be seen that the Election Commission has made readjustment of parliamentary and Assembly constituencies and the learned counsel for the petitioners ahs placed before us a document showing revision of reserved sears for the Scheduled Castes and the Scheduled Tribes on the basis of the notification dated 20-8-1977 issued by the census authority u/s. 5(3) of the Act No. 108 of 1976. It is clear from para 3 of the additional affidavit dated 24-8-1987 of the petitioner No. 2 in the Writ Petition No. 2210 of 1985 that after Mr. Surup Sing Naik. Member of Parliament, had addressed a letter to the Minister for Home Affairs, New Delhi, he along with the Ex Minister Shri Baburao Madhavi had gone to the Election Officer and had obtained the relevant document relating to readjustment of Parliamentary and Assembly seats in the State of Maharashtra. A perusal of the said document filed in the above writ petition would show that the revised population figures for the Scheduled Castes and the Scheduled Tribes as per the revision made u/s. 5(2) of the Act No. 108 of 1976 are available for each tahsil and each district and on the basis of the said figures additional reserved seats are carved out for the Scheduled Castes and the Scheduled Tribes for the parliamentary and Assembly elections. It must also be seen that as per the notification issued u/s. 5 of the Act each Tahsil is constituted as a Block thereunder and the revised population figures of the Scheduled Castes and the Scheduled Tribes which are available for the Tahsil as shown in the said document would, therefore, be available for the Block constituted u/s. 5 of the Act .

The next question which would arise for consideration is whether on the basis of the population figures of the district and the tahsil it is possible for the State to make reservation in the elections to the Zilla Parishads and the Panchayat Samitis under the Act even assuming that the village wise figures for the Scheduled Castes and the Scheduled Tribes are not available in the census of 1971 as modified by the notification u/s. 5(3) of the Act . No. 108 of 1976. In this regard it may be seen that for the purpose of elections to the Zilla Parlishads under the Act , every district, as per Section 12 of the Act , has to be divided into electoral divisions but the territorial extent of any such division is not outside the limit of any block in which the electoral division is situated. Sub-Section (2) of Section 12 has then provided for that in making reservation of seats for the Scheduled Castes and the Scheduled Tribes in any electoral division the State Government shall take into consideration the population of the Scheduled Castes and the Scheduled Tribes in the district. It may therefore be seen that since as stated above, the population figures in the district, of the Scheduled Castes and the Scheduled Tribes, are available in the census of 1971, there should be no difficulty to the State Government in deciding the number of seats to be reserved for the Scheduled Castes and the Scheduled tribes in the district. Moreover, for determining in which electoral divisions such reservations should be made such electoral division not being wider than the Block the population figures of the Scheduled Castes and the Scheduled Tribes for the Block which is the same as tahsil as per the notification u/s. 5 of the Act , are also available.

As reared the reservation of seats for the Scheduled Castes and the scheduled Tribes in the Panchayat Samitis elections it is clear from sub-Section (I) of Section 58 that each electoral division in the Block has to be divided into two electoral colleges and it is in such electoral colleges that the reservation of seats as per clause (aa) of sub-Section (I0 of Section 58 of the Act has to be made having regard to the population of the Scheduled Castes or the Scheduled Tribes in the Block. As pointed out above, since the Block is the same as tahsil the population figures for the Block in the census of 1971 are available as shown above. There should, therefore be no difficulty in making reservations in any electoral college for the representation of the Scheduled Castes or the Scheduled Tribes.

At any rate, because the State Government would experience some difficulties in determining which electoral divisions or which electoral colleges should be reserved for the Scheduled Castes or the Scheduled Tribes, that cannot in our view, be the reason for departing from the meaning of the new definition of the word ''population'' which necessarily flows from its language. If such a result was not intended or comprehended, it may be that the intention of the State Legislature has misfired because no appropriate language was used by it in the new definition of the word ''population''. After getting the necessary date of the previous census with reference to which ascertainment is made u/s. 5(2) of the Act No. 108 of 1976, it the State Government still feels that it is not possible for it to carve out reserved constituencies in the electoral division and the electoral colleges under the Act on the basis of the notified figures u/s. 5(3) of the said Act , it is for it to take suitable action by making even appropriate amendments in the Act . however, with the present provisions of the Act including the new definition of the word ''population'' as they stand today there is no escape and the state must Act on the basis of the population figures notified by the census authority u/s. 5(3) of the Act no. 108 of 1976. For the Scheduled Casts and the Scheduled Tribes. We may usefully recall the observations of Harman, L.J., in Grosvenor Place Estates, Ltd. V. Roberts (Inspector of Taxes), (1961) 1 All ER 341 , that the Court should construe the sections as ti finds them, and, it unexpected results emerge, the cure of them is for a Parliament and not for us.

We may now dispose of the other objection raised on behalf of the State. It is urged on behalf of the State that the object of the Act NO. 108 of 1976 is delimitation of Assembly and Parliamentary constituencies. The submission thus is that the popualtion figures of 1971 census as notified in regard to the Scheduled Castes and the Scheduled Tribes popualtion udner S. 5(3) of the Act no. 108 of 1976 which are final as provided in sub-Section (4) of S. 5 have relevance only to Parliamentary and Assembly elections. A perusal of the preamble of the Act no. 108 of 1976 which is relied upon on behalf of the State in support of its above objection would show that it is intended to provide for the inclusion in, and the exclusion from, the lists of the Scheduled Castes and the Scheduled Tribes, of certain castes and tribes, for the readjustment of representation of Parliamentary and Assembly constituencies is no far as such readjustment is necessitated by such inclusion or exclusion and for matters connected therewith,. In our view, the latter part of the preamble, viz., "for matters connected therewith, would itself enlarge its scope. Apart from that, the language of s.5 does not show that it is restricted to the purpose of readjustment of parliamentary or Assembly constituencies only. On the contrary, it is clear from Section 5(4) that the population figures of the Scheduled Castes and the Scheduled Tribes notified u/s 5(3) are to be taken as the relevant population figures for them as ascertained in the census of 1971 and supersede any figures previsiously published which in the absence of any restriction would be fore all purposes. In fact as per Section 5(4) the figures notified u/s. 5(3) are final and cannot be called in question in any Court. since Section 5 is not thus restricted tot he elections of Parliamentary and assembly constituencies contemplated u/s. 6 of the Act No. 108 of 1976, the submission on behalf of the State cannot be accepted that the modified census figures as per Section 5(3) of the said Act cannot be taken into consideration for the purpose of the elections under the Act .

It may also be seen in this regard that the Parliament itself was competent to legislate in respect of readjustment of Parliamentary and assembly constituencies and, therefore, the fact, that the preamble of the Act , no. 108 of 1976 refers to readjustment of Parliamentary and Assembly constituencies and that Section 6 is enacted for that purpose would not mean that Section 5 in the said Act enacted for modification of the census figures of the Scheduled Castes and the Scheduled Tribes population in the census of 1971 in the light of its provisions is intended for the purpose of readjustment of Parliamentary and Assembly constituencies only. It may further be seen that when State Legislature has made provisions under the Act for holding elections to the Zilla Parricides and the Panchayat Samitis on the basis of the new definition of the word ''population'' which refers to the census of 1971 it itself brings in for the purposes of the Act the ascertainment of population made u/s. 5 of the Act No. 108 of 1976. The above objection raised on behalf of the State that the purpose of Section 5 of the Act No. 108 of 1976 is restricted only to Section 6 of the said Act relating to readjustment of parliamentary and Assembly constituencies cannot, therefore, be accepted.

For all these reasons, we cannot accept the construction of the new definition of the expression ''population'' canvassed by the State that it refers to the original population figures of the 1971 census even in regard to the Scheduled castes and the Scheduled Tribes population for which as already pointed out, there is no warrant or justification either in the Maharashtra Act No. 12 of 1985 or in the Act no. 108 of 1976 and which as shown above would not be beneficial to the interests of the weaker sections of the society although their rights are sought to be protected by Section 5 of the Act No. 108 of 1976.

The only other contention urged on behalf of the State which we have not till now dealt with is that the aforesaid second question urged on behalf of the petitioners also stands concluded by our decision in Writ Petition No. 4382 of 1985 in the Case of Kondaji Sajan Dhondge v. State of Maharashtra, decided on 9-9-1985; (reported in ILR (1987) Bom 217), cited supra. We are dealing with this contention last because although vehemently urged, we do not find any merit in the same. A perusal of the aforesaid decision of the Division Bench would clearly show that the only question urged before the Division Bench in that case is whether the new definition of the expression ''population'' is arbitrary discriminatory and is volatile of Article 14 of the Constitution of India. It is in that context that reference is made by the Division Bench to the 1971 census. However, it is clear from its perusal that the second questions whether the population figures of the Scheduled Castes or the Scheduled Tribes in the 1971 census are notified u/s. 5 (3) of the Act no. 108 of 1976 was neither raised nor considered by it. The above contentions behalf of the state, which is devoid of any merit, is thus rejected.

63.Summarising the discussion, it is clear that since we have held that the new definition of the expression ''population'' is not violative of Article 14 and is not liable to be struck down on that ground it is open to the State Government to adopt the population fingers of the census of 1971 in forming the electoral divisions and the electoral college s for the purpose of elections to the Zilla Parishads and the Panchayat Samitis under the relevant provisions of the Act . However ,so far as the population figures of the 1971 census is regard to the Scheduled Castes and the Scheduled Tribes population are concerned they would be the population figures for the said census as notified by the census authority u/s 5(3) of the Act No. 108 of 1976.

Since we have upheld the validity of the new definition of the word ''population'' substituted as new clause 2(20A) in the Act by Section 4 of the Maharashtra Act No 12 of 1985 the petitioners are not entitled to the relief that the said definition clause as well as the Zilla Parishads reservation Rules, 1985 and the Panchayat Samitis reservation Rules 1985 should be struck down. The only relief which the petitioners are entitled to is prayed for in prayer clause(c ) in Writ Petition No.2210 of 1985 , according to which the petitioners have asked for striking down the Zilla Parishads (Electoral Divisions and Reservation of seats) Rules, 1985 framed for the Zilla Parishads in the Vidarbha Region of the State Maharashtra. It may be stated that on the reasoning given by us similar Rules framed for the creation of the electoral colleges and reservations of seats in the Panchayat Samitis would also be bad. However, no relief is claimed in these petitions is regard to the same. As regards the Maharashtra Zilla Parishads (Electoral Divisions and Reservations of Seats ) rules, 1985, which deal with the creation of the electoral divisions and reservations of seats in the elections of the Zilla Parishads under the Act , it may be seen that in view of our reasoning the creation of the general seats and the reserved seats in the electoral divisions for the Scheduled Castes and the Scheduled Tribes, cannot be served and , therefore, the Rules would have to be set aside in their entirety.

In the result, the instant writ petitions partly succeeded. The Zilla Parishads (Electoral Divisions and reservations of Seats ) Rules, 1985 are set aside and the Rule is made absolute in these writ petitions in terms of prayer clause (c) in Writ Petition No. 2210 of 1985. There would, however, be no order as to costs in these writ petitions.

Writ petitions partly allowed.