2006 Supreme(All) 351

[2006(2) ADJ 444 (All)(DB)]
ALLAHABAD HIGH COURT
(Division Bench)
BEFORE : R.K. AGRAWAL AND MRS. SAROJ BALA, JJ.
HEERA LAL UMAR AND ANOTHER ...Petitioner
Versus
STATE OF U.P. AND OTHERS .......Respondents
(Civil Misc. Writ Petition Nos. 2247of 2001 and 63611 of 2005, decided on 6th February, 2006)

Headnote:(A) U.P. Municipalities Act, 1916—Section 9-A(5)—U.P. Municipalities (Reservation and Allotment of Seats and Offices) Rules, 1994—Rules 6 and 6-A—Constitution of India—Article 243-T (4), (6), Part IX-A—(As Ins. by Constitution (Seventy Fourth Amendment) Act, 1992)—Challenged to validity of—Reservation of post of President in Election of Nagar Palika Parishads—Constitutionality—Petitions, seeking it to be treated as a general seat, so that candidates of all categories, may contest election, that citizens may have better choice of electing a better candidate—Held (i) Provisions of Clauses (4) and (6) of Article 243-T of Constitution, as inserted by 74th Amendment Act, 1992, in Part IX-A—Are held valid and intra-vires—And are within amending powers under Article 368 of Constitution; (ii) Provisions of sub-section (5) of Section 9-A of Municipalities Act of 1916, are declared ultra vires; (iii) Rules 6 and 6-A of Rules, 1994, providing for reservation, on post of President and Vice-Presidents of Municipalities—Are declared illegal and invalid. [Paras 2, 3, 98 and 133]

       (B) Constitution of India, 1950—Articles 243-T (4) (6), 368, 12, 13, 14, 15, 16 and 38—Evidence Act, 1872—Section 114—Constitutionality of Article 243-T, Clauses (4), (6)—Presumption of—An Act, what to say of a Constitution Amendment Act, was presumed to have been enacted, within four corners of provisions of Constitution—There was a presumption, regarding its constitutionality—Therefore, Clauses (4) and (6) of Article 243-T, as valid, unless petitioner proves otherwise—Mere possibility of abuse of a provision of law—Does not per se, invalidate legislation—It must be presumed, unless contrary was proved, that administration and application of a particular law, would be done, not with an evil eye, and unequal hand—Therefore, a provision, cannot be held to be ultra vires, or unconstitutional, merely because there was a possibility of it being misused. [Paras 34, 40, 41, 47 and 98]

       (C) Constitution of India, 1950—Article 368—Power of Parliament to amend Constitution—Article 368, does not enable Parliament of alter basic structure, or framework of Constitution—Even an Act, amending Constitution passed by Parliament, can be challenged on ground that it violates basic feature or basic structure of Constitution. [Paras 49, 54 and 98]

       (D) Constitution of India, 1950—Preamble—Basic feature of Constitution—Cannot be altered by Parliament—Expression “basic feature”—What are. [Paras 55 and 98]

       (E) Election—Right to contest—Whether a fundamental right—Whether it was for membership, or for post of President, was not a fundamental right—But it was a statutory right, i.e., right to elect, and right to be elected, was a statutory right. [Paras 65, 66 and 98]

       (F) Reservation—Special provisions for Scheduled Castes/Scheduled Tribes—Its necessity—Reservation has been in existence, since commencement of Constitution, in respect of Members of State Legislatures and Parliament—In order to remove inequality among members of backward section of society, special provisions were made in Constitution itself, at time of its enactment—By Constitution Amendment Act, intention of Constitutional framers have specifically incorporated, providing reservation, for SCs and STs—And also empowering State Legislature, to make reservation for backwards, not only in respect of seats of Municipality, but also for Chairpersons—Mere providing reservation/special treatment to specified classes of people in Local self-Government, whether it was for membership, or Chairmanship, in order to remove inequality, and to bring them in main stream of Nations fabric, by having a sense of pride, without which they could not even dream of it, cannot be said to violate basic structure of Constitution. [Paras 70, 73 and 98]

       (G) Reservation—For Members and Chairperson of Municipality—Amendment of Constitution—Validity—If by Amending Constitution, Parliament in Part IX of Constitution, by way of Article 243-D, has provided for reservation, for Members in Panchayats, and also for Chairperson full effect has to be given—And cannot be made redundant, on account of Article 243-C. [Constitution of India—Articles 243-C and 243-D]. [Paras 76 and 98]

       (H) Interpretation of Statute—Interpreting a particular section—Statute must be read as a whole—And was equally applicable to different parts of same section. [Para 77]

       (I) Constitution of India, 1950—Articles 243-T (4), (6) and 38—Constitutionality—Laws passed truly and bona fide, for giving effect to Directive Principles, will fortify basic structure, what to say of damaging basic structure—Provisions of Clauses (4) and (6) of Article 243-T, in fact, whole of that Article was a step to further Directive Principles and to achieve objectives, contained in Article 38—And, therefore, also said provision, cannot be said to be unconstitutional. [Paras 81, 89 and 98]

       (J) Constitution of India, 1950—Articles 19, 38 and 243-T—Directive Principles vis-a-vis Fundamental Rights—While interpreting inter play of rights and restrictions, Part III (Fundamental Rights) and Part IV (Directive Principles), have to be read together—Restrictions, which can be placed, on rights, listed in Article 19(1), are not subject only to Article 19(2) and 19(6)—Provisions, contained in chapter on Directive Principles of State Policy, can also be pressed into service, and relied on, for purpose of adjudging reasonability of restrictions, placed on fundamental rights—Provisions of Article 243-T, Clauses (4) and (6) of Constitution, have been inserted by 74th Amendment of 1992, with a view to achieve one of principles, enshrined in Article 38, which forms part of Part IV, viz., Directive Principles of State Policy, an endeavour to eliminate inequalities in status, facilities and opportunities—Any law, which gives effect to Directive Principles of State Policy, as provided in Clause (2) of Article 38 of Constitution, cannot be said to damage basic structure of Constitution. [Paras 82, 86, 88 and 98]

       (K) Municipalities—Reservation—For SCs, STs, Womens and Backward Classes—For office of Chairpersons, being a single post—It was found that under Article 15, Clauses (3) and (4) of Constitution, State has been empowered to make special provisions for women and children, and for socially and educationally backward classes, or for SCs and STs—Framers of Constitution, in matters of Public employment, has also empowered State, by Articles 16, Clause (4), to make any law, for reservation in appointment, or post, in favour of BCs, not adequately represented in services under State. [Constitution of India—Articles 15, 16]. [Paras 90 and 98]

       (L) U.P. Municipalities Act, 1916—Section 9(5)—U.P. Municipalities (Reservation and Allotment of Seats and Offices) Rules, 1994—Rules 6 and 6-A—Constitution of India—Articles 12, 13, 15, 16 and 19—Validity of—Reservation of seats—Even though, under sub-sections (1), (3) and (4) of Section 9-A of Act, manner and percentage of reservation, for number of seats, in Municipalities, in favour of SCs, STs, Women and BCs, have been specified, no such specification has been made, in sub-section (5) of Section 9-A of Act, and State Legislature has given enacting power to Rule making Authority, i.e., State Government—Policy, or Guidelines, for reservation, on post of President in a Municipality, cannot be spelled out—It leaves entire matter at discretion of Rule-making authority—Which was clearly impermissible—Therefore, sub-section (5) of Section 9-A of Act, in so far as it provides, for making reservation, for offices of Presidents and Vice-Presidents in Municipalities, in favour of SCs, STs, BCs and Women, by Rule-making authority was ultra vires, being abdication of essential legislative functions, as it does not lay any guidelines—Therefore, Rules 6 and 6-A of Rules of 1994 also, do not stand of their own and was liable to be set aside. [Paras 101, 102, 103, 125 and 129]