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2019 Supreme(All) 2285
IN THE HIGH COURT OF ALLAHABAD
Sunita Agarwal, Mahesh Chandra Tripathi, JJ.
Suresh Jaiswal - Petitioner
Vs.
State of U.P. and Another - Respondents
Writ - C No. - 53941 of 2015
Decided On : 20-12-2019
For the Petitioner: S.K. Singh Paliwal, Shashi Nandan
The case established the importance of properly framing questions for reference to a Larger Bench and highlighted the need for actual conflicts or live issues for such references to be valid.
Headnote:
Election Process - U.P. Panchayat Raj Act' 1947 - Section 11 (f) & 12 of the U.P. Panchayat Raj Act' 1947 - U.P. Panchayat Raj (Reservation and Allotment of Seats and Offices) Rules' 1994 - Article 226 of the Constitution of India
Fact of the Case:
The case involved a challenge to the reservation and allotment of constituencies for Three-tier Panchayat elections in the State of U.P. The petitioners sought a writ in the nature of mandamus to re-frame the reservation of territorial constituencies for Zila Panchayat. The State Government had postponed the elections for Gram Panchayats, leading to a dispute over the constitution of Kshetra Panchayat and Zila Panchayat.
Finding of the Court:
The Division Bench referred the case to a Larger Bench to examine the constitutional remedy of judicial review under Article 226 of the Constitution of India, the maintainability of a writ petition under Article 226 in view of the bar created under Article 243-O of the Constitution of India, and the High Court's power to interfere in the election process. The Larger Bench found that the reference was not properly made and annulled it, holding that the questions referred were hypothetical and of academic importance.
Issues: The issues involved the maintainability of a writ petition under Article 226 in view of the bar created under Article 243-O of the Constitution of India, the High Court's power to interfere in the election process, and the constitutional remedy of judicial review under Article 226 of the Constitution of India.
Ratio Decidendi: The Court held that the reference to the Larger Bench was not properly made and annulled it, as the questions referred were hypothetical and of academic importance. It clarified that the observations made would not cause prejudice to the rights and contentions of the parties in any proceeding.
Final Decision: The reference to the Larger Bench was annulled, and the writ petitions were to be placed before the regular Bench for disposal.
JUDGMENT :
Suneet Kumar, J.
1. Heard Shri Manish Kumar Pandey, learned counsel appearing for the petitioner, Shri Neeraj Tripathi learned Addl. Advocate General assisted by Shri Shashank Shekhar Singh learned Addl. Chief Standing Counsel and Shri Tarun Agarwal learned counsel appearing for the State Election Commission.
2. This Larger Bench has been constituted under the orders of Hon'ble the Chief Justice on a reference made by the Division Bench vide judgment and order dated 29.09.2015.
3. For the elections of Panchayats, namely Gram Panchayat, Kshetra Panchayat, Zila Panchayat, State of U.P., process had been initiated in the year 2015. During the said process, a Government order dated 11.08.2015 was issued to adopt certain procedure for reservation and allotment of seats with some modification as provided in the earlier Government order dated 09.07.2010. After receipt of objections on the list of the constituencies, it appears that the District Magistrate had proceeded to decide all objections by means of an order dated 13.09.2015. It appears that at this stage, a number of writ petitions were filed by different persons challenging the manner and methodology adopted by the State Government in delimitation of constituencies, reservation and allotment of seats. Objections were raised on the decision of the State Government vide Government order dated 05.09.2015 wherein it was notified that in Three-tier Panchayat Elections, the proceedings for reservation and allotment of seats for Pramukh, Kshetra Panchayat; members, Kshetra Panchayat and member of Zila Panchayat would continue as per the time-table notified for the same, whereas, the proceedings for reservation and allotment of seats for the Gram Panchayats be kept in abeyance till further orders were passed.
4. In addition to the challenge made against the decision of the District Magistrate on the objections of the petitioner to the list of reservation and allotment of seats, another issue raised was that there was no justification for postponing the elections of Gram Panchayats though the term of Gram Panchahyats was about to expire and further that in Three-tier system, without elections for Gram Panchayats, the constitution of Kshetra Panchayat and Zila Panchayat was not possible. The relief, thus, was sought to issue writ in the nature of mandamus commanding the respondents to re-frame the reservation of territorial constituency of Zila Panchayat.
5. Before the Division Bench, the original records from the office of the District Magistrate in the matter of application of reservation as per U.P. Panchayat Raj (Reservation and Allotment of Seats and Offices) Rules' 1994 in respect of particular seats in each District were summoned by the order dated 22.09.2015. While examining the said record, certain objections were made by the Division Bench in the order dated 23.09.2015, which is quoted in the referral order. On 24.09.2015, certain more records were examined by the Court and it had framed the issues which arose for consideration before it. The matter was fixed for further hearing on 28.09.2015.
6. The relevant observations of the Division Bench in the order dated 24.09.2015 are quoted herein:-
"how can the elections for Zila Panchayat be held without the first level of three tier panchayat elections, namely, village panchayat elections being first held and then the intermediatory level elections of kshetra panchayat."
7. It appears that on 24.09.2015, when the matter was taken up, State had raised objections regarding maintainability of the writ petitions before the District Magistrate. To strengthen its stand, reliance had been placed upon the judgment of the Coordinate Bench in the case of Rishipal Singh vs. State of U.P. and others, Public Interest Litigation No.54008 of 2015; as well as in Rajesh Kumar Singh vs. State of U.P. and other, Public Interest Litigation No.51785 of 2015. The order dated 24.09.2015 passed in the case of Rishipal Singh, Public Interest Litigation
