Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(UK) 333

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
VIPIN SANGHI, R.C. KHULBE, JJ.
Prashant Chauhan – Appellant
Versus
State of Uttarakhand and others. - Respondents
Writ Petition (M/S) No. 1769, 1773, 1774, 1785, 1796, 1797, 1798, 1800, 1802 of 2022
Decided on : 29-07-2022

Advocates:
Advocate Appeared:
For the Appellant : Mr. Arvind Vashishtha, assisted by Mr. Kaushal Pandey, Mr. Gaurav Singh, Mr. Prem Kaushal, Mr. Amar Murti Shukla, adv
For the Respondent: Mr. Pradeep Joshi, Mr. Anil Kumar Bisht, Mr. Sanjay Bhatt

The obligation of the State to collect and collate contemporaneous data for the purpose of reservation of seats for the Backward Classes and the continuity of actions taken under the U.P. Rules despite the repeal of the U.P. Act and the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Act, 1961.

Headnote:
Reservation - Panchayat Elections - Article 243D, Article 243E, U.P. Panchayat Raj Act, 1947, Uttarakhand Panchayati Raj Act, 2016 - The judgment discusses the reservation and allocation of seats in Gram Panchayats, Kshettra Panchayats, and District Panchayat of District Haridwar for the 3-Tier Panchayati elections. It refers to the constitutional provisions under Article 243D and Article 243E, and the relevant sections of the U.P. Panchayat Raj Act, 1947, and Uttarakhand Panchayati Raj Act, 2016. The court analyzes the reservation policies and the obligation of the State to collect and collate contemporaneous data for the purpose of reservation of seats for the Backward Classes. It emphasizes the need for an independent dedicated Commission to conduct an inquiry into the nature and implications of backwardness in the local bodies concerned. The judgment also addresses the issue of stalling elections due to the unavailability of contemporaneous data and the continuity of actions taken under the U.P. Rules despite the repeal of the U.P. Act and the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Act, 1961.
Fact of the Case:

The case involves a challenge to the reservation and allocation of seats in Panchayat elections in District Haridwar, Uttarakhand. The petitioners raised concerns about the reliability of data used for reservation and the adoption of U.P. Rules for the forthcoming elections.
Finding of the Court:

The court found no merit in the petitions and dismissed them. It emphasized the State's obligation to collect contemporaneous data for reservation of seats for the Backward Classes and rejected the argument to treat the forthcoming elections as the first election due to the readoption of U.P. Rules.
Issues: The primary issues revolved around the reliability of data for reservation, the adoption of U.P. Rules for the forthcoming elections, and the obligation of the State to conduct an inquiry into the nature and implications of backwardness for reservation purposes.
Ratio Decidendi: The court emphasized the need for an independent dedicated Commission to conduct an inquiry into the nature and implications of backwardness in the local bodies concerned for the purpose of reservation of seats for the Backward Classes. It also highlighted the continuity of actions taken under the U.P. Rules despite the repeal of the U.P. Act and the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Act, 1961.
Final Decision: The court dismissed the petitions, leaving the parties to bear their respective costs.

JUDGMENT :

Sri Vipin Sanghi, J.

In all these writ petitions, there is firstly a challenge to the order dated 18.11.2021 issued by the Government of Uttarakhand, Department of Panchayat on the subject of reservation and allocation of seats in Gram Panchayats, Kshettra Panchayats and District Panchayat of District Haridwar for the 3-Tier Panchayati elections.

2. The petitioners have further assailed, in their respective petitions, the subsequent similar orders, all dated 13.07.2022, whereby actual allocation of the seats in the Gram/ Kshettra/ District Panchayat have been made for the reserved categories in terms of the earlier order dated 18.11.2021.

3. Part-IX of the Constitution, containing Articles 243, 243A to 243-O were inserted into the Constitution by a Constitution (Seventy-third Amendment) Act, 1992 w.e.f. 24.04.1993. This part deals with the subject of Panchayats. Article 243B states that there shall be constituted in every State, Panchayats at the village, intermediate, and district levels in accordance with the provisions of Part IX. Article 243C lays down the composition of the Panchayats. All the seats in the Panchayat shall be filled by direct election from territorial constituencies in the Panchayat area. Under Article 243C(3), the Legislature of a State may, by law, provide for the representation of the Chairpersons of the Panchayats. Under Article 243D of the Constitution of India, seats are required to be reserved for the Scheduled Castes and Scheduled Tribes in the Panchayats, and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat, as the population of the Scheduled Castes in that Panchayat area, or of the Scheduled Tribes in that Panchayat area, bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat.

4. Article 243D(2) states that not less than one third of the total number of seats reserved under clause (1) shall be reserved for women, belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes. For women, reservation is granted under Article 243D(3), which states that not less than one third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women, and such seats may be allotted by rotation to different constituencies in a Panchayat.

5. Clause (4) of Article 243(D) states that the offices of the Chairpersons in the Panchayats at the village or any other level, shall be reserved for the Scheduled Castes the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide. It further provides that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats, at each level in any State, shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level, as the population of the Scheduled Castes in the State, or of the Scheduled Tribes in the State, bears to the total population of the State. It further provides that not less than one third of the total number of offices of Chairpersons in the Panchayats at each level, shall be reserved for women. It further provides that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level.

6. Clause (6) of Article 243(D) states that nothing in Part-IX shall prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat, or offices of Chairpersons in the Panchayats, at any level, in favour of backward class of citizens.

7. Article 243E(1) states that every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed f