Association Of Res.Of Mhow (Rom) & Anr vs Delimitation Commn.Of India & Ors

2

INTRODUCTION:

3. The periodic readjustment of the Lok Sabha and

Assembly Constituencies is mandatory in

representative systems where single member

constituencies are used for electing political

representatives. The electoral districts are dawn on

the basis of the last published census figure that they

are relatively equal in population. Electoral districts

that vary significantly in population - a condition called

malapportionment - violate a central tenet of

democracy that all the votes cast must be of equal

weight. The last delimitation was in 1973 pursuant to

the Delimitation Act, 1972. Since then there has been

increase of 87% in the population and most of the

constituencies across the country have become

malapportioned.

3

4. The Delimitation Act, 2002 (for short `the Act') is

an Act to provide for the readjustment of the allocation

of seats in the House of the People to the States, the

total number of seats in the Legislative Assembly of

each State, the division of each State and each Union

territory having a legislative Assembly into territorial

constituencies for election to the House of the People

and Legislative Assemblies of the States and Union

territories and for matters connected therewith. The

Central Government constituted the Delimitation

Commission (for short `the Commission') in exercise of

its power under Section 3 of the Act consisting of a

retired judge of the Supreme Court as its Chairperson

and other members. The Commission so set up started

functioning w.e.f. 4.7.2002.

5. In order to appreciate the nature of functions and

duties entrusted to the Commission it may be just and

necessary to notice the relevant provisions. 4

6. Section 8 deals with readjustment of number of

seats. It says:

"8. Readjustment of number of seats.-- The Commission shall, having regard to the provisions of articles 81, 170, 330 and 332, and also, in relation to the Union territories, except National Capital Territory of Delhi, sections 3 and 39 of the Government of Union Territories Act, 1963 (20 of 1963) and in relation to the National Capital Territory of Delhi sub-clause (b) of clause (2) of article 239AA, by order, determine,--

(a) on the basis of the census figures as ascertained at the census held in the year 1971 and subject to the provisions of section 4, the number of seats in the House of the People to be allocated to each State and determine on the basis of the census figures as ascertained at the census held in the year 1[2001] the number of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State; and

(b) on the basis of the census figures as ascertained at the census held in the year 1971 and subject to the provisions of section 4, the total number of seats to be assigned to the Legislative Assembly of each State and determine on the basis of the census figures as ascertained at the census held in the year 1[2001] the number 5

of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State:

Provided that the total number of seats assigned to the Legislative Assembly of any State under clause (b) shall be an integral multiple of the number of seats in the House of the People allocated to that State under clause (a).

7. Section 9 deals with delimitation of constituencies

which is as under:

"9. Delimitation of constituencies.--

(1) The Commission shall, in the manner herein provided, then, distribute the seats in the House of the People allocated to each State and the seats assigned to the Legislative Assembly of each State as readjusted on the basis of 1971 census to single-member territorial constituencies and delimit them on the basis of the census figures as ascertained, at the census held in the year 1991, having regard to the provisions of the Constitution, the provisions of the Act specified in section 8 and the following provisions, namely:--

(a) all constituencies shall, as far as practicable, be geographically compact areas, and in delimiting them regard shall be had to physical features, existing boundaries 6

of administrative units, facilities of communication and public convenience;

(b) every assembly constituency shall be so delimited as to fall wholly within one parliamentary constituency;

(c) constituencies in which seats are reserved for the Scheduled Castes shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total is comparatively large; and

(d) constituencies in which seats are reserved for the Scheduled Tribes shall, as far as practicable, be located in areas where the proportion of their population to the total is the largest.

(2) The Commission shall--

(a) publish its proposals for the delimitation of constituencies, together with the dissenting proposals, if any, of any associate member who desires publication thereof, in the Gazette of India and in the Official Gazettes of all the States concerned and also in such other manner as it thinks fit;

(b) specify a date on or after which the proposals shall be further considered by it;

(c) consider all objections and suggestions which may have been received by it before the date so specified, and for the purpose of such consideration, hold one or more public 7

sittings at such place or places in each State as it thinks fit; and

(d) thereafter by one or more orders determine--

(i) the delimitation of parliamentary constituencies; and

(ii) the delimitation of assembly constituencies of each State.

FACTUAL BACKGROUND:

8. In the State of Madhya Pradesh there are 29

Parliamentary Constituencies and 230 Assembly

Constituencies. Out of these 29 Parliamentary

Constituencies 27 have 8 Assembly Constituencies each

and 2 Parliamentary Constituencies have 7 Assembly

Constituencies each. In pursuance of sub-section (2)

of Section 9 of the Act, the Commission vide its

Notification dated 19.1.2007 published its proposals for

the delimitation of Parliamentary and Assembly

Constituencies in the State of Madhya Pradesh. The 8

Commission invited objections and suggestions in

regard to its proposals to be submitted on or before

1.2.2007 after which date the proposals were to come

up for further consideration by the Commission. Under

the said proposals Dhar Parliamentary Constituency is

shown consisting of 8 Assembly Constituencies

including 203-Depalpur and the adjoining 26-Indore

Parliamentary Constituency also had 8 Assembly

Constituencies including 209-Mhow. The Commission

upon considering the objections and suggestions finally

determined the delimitation of both Dhar and Indore

Parliamentary Constituencies. In its final

determination the Commission included Mhow

Assembly Constituency into Dhar Parliamentary

Constituency by deleting the same from Indore

Parliamentary Constituency as originally proposed.

Consequently the Depalpur Assembly Constituency has

been deleted from Dhar Parliamentary Constituency

and added to Indore Parliamentary Constituency. The 9

present controversy centers around final determination

of the delimitation of Indore Parliamentary

Constituency.

9. The main issue that arises for our consideration in

the present appeal is whether the Commission had

complied with the mandatory requirement as provided

for in Section 9 (2) of the Act, insofar as it concerns

the shifting of Mhow Assembly Constituency from

Indore Parliamentary Constituency and including the

same into Dhar Parliamentary Constituency.

10. Shri Prashant Bhushan, learned counsel for the

appellant submitted that the Commission in its final

determination decided to shift Mhow Assembly

Constituency from Indore Parliamentary Constituency

and included the same into Dhar Parliamentary

Constituency without complying with the mandatory

requirements of Section 9 of the Act. The submission 10

was that there was no proposal by the Commission for

shifting Mhow Assembly Constituency from Indore

Parliamentary Constituency to Dhar Parliamentary

Constituency and on the other hand the Commission in

its proposals clearly indicated Mhow Assembly

Constituency to be a part of Indore Parliamentary

Constituency for which there was no objection

whatsoever from any quarter.

The Commission held a public hearing on

22.2.2007 at Indore in which there was no suggestion

that Mhow Assembly Constituency should be shifted

from Indore Parliamentary Constituency to Dhar

Parliamentary Constituency.

The Commission decided to interchange 203-

Depalpur and 209-Mhow Assembly Constituencies

between 25-Dhar (ST) and 26-Indore Parliamentary

Constituencies.

11

11. Shri Ashok Desai, learned senior counsel for the

respondents submitted that the decision of the

Commission is not ultra vires the provisions of the Act

and the Guidelines and Methodology of the

Commission. The draft proposals of the Commission

for the delimitation of the constituencies vide its

Notification dated 14.5.2007 was for the whole of the

State of Madhya Pradesh and not with reference to any

one or more Parliamentary Constituencies. The

Commission only proposed the names and extents of

the constituencies which were subject to change

including addition and deletion of one or more

Assembly Constituencies in the light of

suggestions/objections to be received from public and

also in keeping with the provisions of the Act and the

Guidelines and Methodology of the Commission. The

decision of the Commission in including 203-Depalpur

Assembly Constituency in 26-Indore Parliamentary 12

Constituency was due to vocal demand made in the

public meeting convened for further consideration of

the proposals. As a consequence, to maintain

equilibrium it became necessary for the Commission to

shift Mhow Assembly Constituency for its addition to

Dhar Parliamentary Constituency on the grounds of

contiguity and compactness.

12. The short question that arises for consideration is

whether Mhow Assembly Constituency could have been

shifted from Indore Parliamentary Constituency for its

inclusion into Dhar Parliamentary Constituency without

there being any proposal whatsoever.

13. In the present case, one Uma Narayan Singh Patel

and others addressed a representation on 27.1.2007

to the Chairperson of the Commission raising number

of objections to the proposal to include Depalpur

Assembly Constituency in Dhar Parliamentary 13

Constituency and suggested for its inclusion into Indore

Parliamentary Constituency. It would be useful to refer

in detail to the objections raised in this regard which

are as under:

i) 80% of the villages of Depalpur Assembly

Constituency are adjoining Indore city and the

rest 20% are comprised within Indore city;

ii) 60% of the villages of Deepalpur Assembly

Constituency are only 2 to 40 kms. from Indore

city;

iii) The transport for communication from the

villages of Deepalpur Assembly Constituency to

Indore city is good and available in abundance

while no transport for communication is

available for Dhar Parliamentary Constituency

which is hundred kilometers away from this

Assembly Constituency;

14 iv) 30% of the villages of the Deeplapur Assembly

Constituency are under Indore Development

Authority and Municipal Corporation;

v) 40% of the villages of Deepalpur Assembly

Constituency which revenue oriented are under

Indore Tehsil. Due to this, the Revenue

Inspector Circle will undergo a change including

Hatod RIC.

Vi) 2% of Revenue boundary of Deepalpur

Assembly Constituency touches Dhar

Parliamentary Constituency while 70%

boundary of Mhow Assembly Constituency

touches Dhar Parliamentary Constituency and

Dhar Revenue Department.

14. It was clearly suggested that Mhow Assembly

Constituency should be included in Dhar Parliamentary

Constituency in place of Depalpur Assembly

Constituency. In the public meeting held on 22.2.2007 15

at Indore, suggestions were made to shift Depalpur

Assembly Constituency to the Indore Parliamentary

Constituency from Dhar Parliamentary Constituency.

The Commission after considering the objections and

suggestions received by it, and having found merit in

the suggestions and representations for including

Depalpur Assembly Constituency in Indore

Parliamentary Constituency got published its final

decision to shift Depalpur Assembly Constituency from

Dhar Parliamentary Constituency and made it to be a

part of Indore Parliamentary Constituency and in the

process also shifted Mhow Assembly Constituency to

Dhar Parliamentary Constituency.

15. The contention of the learned counsel for the

appellant was that there were no objections to the

proposals of the Commission in including Mhow

Assembly Constituency as part of Indore Parliamentary

Constituency and in such a situation there was no 16

option to the Commission but to go ahead with its

proposals to include Mhow in Indore Parliamentary

Constituency.

16. Section 9 (1) of Act prescribes distribution of the

seats in the House of the People allocated to each

State and the seats assigned to the Legislative

Assembly of each State as readjusted on the basis of

1971 census to single-member territorial constituencies

and delimit them on the basis of the census figures as

ascertained, at the census held in the year 1991.

Section itself provides the factors to be taken into

consideration including the provisions of the

Constitution, the provisions of the Act specified in

Section 8 and the following provisions, namely:-

(a) all constituencies shall, as far as practicable, be geographically compact areas, and in delimiting them regard shall be had to physical features, existing boundaries of administrative units, facilities of communication and public convenience;

17 (b) every assembly constituency shall be so delimited as to fall wholly within one parliamentary constituency;

(c) constituencies in which seats are reserved for the Scheduled Castes shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total is comparatively large; and

(d) constituencies in which seats are reserved for the Scheduled Tribes shall, as far as practicable, be located in areas where the proportion of their population to the total is the largest.

17. Section 9(2) of the Act mandates the Commission

to follow the following steps before determining the

delimitation of any Constituency, namely:

a) publish its proposal for the delimitation of the

constituency, along with dissenting proposals,

if any;

b) specify a date on which the proposals shall be

further considered by it;

18 c) consider all objections and suggestions which

may have been received by it before the date

so specified and for the purpose of such

consideration hold one or more public sittings;

and

d) Only thereafter the Commission can determine

the delimitation of a Constituency.

18. The most important aspect of the matter required

to be borne in mind is that the proposals for

delimitation published under Section 9 (2) of the Act

are with regard to the whole of the State. The

proposals are not a constituency-centric one.

Determining the delimitation of Parliamentary

Constituencies and Assembly Constituencies is a very

complex and lengthy process. Section 9 (1) of the Act

mandates the Commission as to what are the factors

apart from the provisions of the Constitution and

provisions of the Act required to be taken into 19

consideration which are noticed herein above. Section

9 (2) mandates the Commission to publish its

proposals for the delimitation of the constituencies in

the manner provided thereunder. It is true,

determination of the delimitation of Parliamentary

Constituencies and Assembly Constituencies, as the

case may be, shall be only after consideration of all

objections and suggestions which may have been

received by the Commission before the specified date

for which purposes the Commission may hold one or

more public sittings at such place or places in each

State as it thinks fit. The Commission is not required

to hold public meeting in each and every Parliamentary

Constituency. What the Commission required is to

consider the objections and suggestions for its

proposals before determining the delimitation of the

constituencies in the entire State. The proposals

cannot emanate from any interested person. The

distinction between the Commission's proposals and 20

objections and suggestions in response to such

proposals is to be borne in mind. Every suggestion or

objection cannot ultimately result in any fresh proposal

by the Commission. The Commission is not under any

legal or Constitutional obligation to go on issuing any

revised proposals depending upon every objection and

suggestion as may be received by it in response to its

proposals. Since the exercise of the delimitation is not

with reference to any particular constituency, the

suggestions or objections, as the case may be, in

respect of one constituency may have their impact at

least on one or more of the adjoining constituencies.

In the present case, various objections were lodged

and suggestions were made as to why Depalpur

Assembly Constituency is to be included in Indore

Parliamentary Constituency in which the Commission

found merit and those suggestions do have a direct

bearing on the delimitation of Indore Parliamentary

Constituency as well. The cascading effect cannot be 21

avoided. The Commission could not have retained

Depalpur Assembly Constituency and as well as Mhow

Assembly Constituency in Indore Parliamentary

Constituency in which event Indore Parliamentary

Constituency would have 9 Assembly Constituencies

while Dhar Parliamentary Constituency would have only

7 Assembly Constituencies resulting in avoidable

malappropriation. The Commission's power to

determine delimitation of the constituency is not

unlimited but is structured by the provisions of the Act

and more particularly by Sections 8 and 9 of the Act

apart from the Constitution (Eighty-fourth Amendment)

Act, 2001 and Constitution (Eighty-seventh

Amendment) Act, 2003 which have, inter alia,

amended Articles 81, 82, 170, 330 and 332 of the

Constitution of India. The effect of these amendments

to the Constitution inter alia is that each Parliamentary

Constituency in each State shall be an integral multiple

of the number of seats comprised therein and no 22

Assembly Constituency shall extend to more than one

Parliamentary Constituency. The Commission in the

present case appears to have determined the

delimitation of both Dhar and Indore Parliamentary

Constituencies in such a manner whereby each of the

Parliamentary Constituency shall consist of equal

number of 8 Assembly Constituencies. It appears the

Commission had also taken into consideration the

contiguity, geographical features, public convenience

etc. before finally determining the delimitation of both

the Parliamentary Constituencies. We find no illegality

to have been committed by the Commission.

19. In the present case, the High court of Madhya

Pradesh at Jabalpur summarily dismissed the writ

petition under Article 226 of the Constitution praying

for writ of certiorari for quashing the notification

issued in pursuance of sub-section (1) of Section 10 of

the Act in respect of the delimitation of Indore 23

Parliamentary Constituency. The petition was rejected

on the short ground that the order of the Commission

once published under Section 10(2) of the Act is law

made under Article 327 of the Constitution and cannot

be called in question in any court by virtue of Article

329 of the Constitution.

20. The learned counsel for the appellants submitted

that only such decision of the Commission determining

delimitation of Constituencies after following the

mandatory procedure under Section 9 (2) of the Act, if

it is published, becomes a force of law and it cannot be

questioned in any court. Thus, the protection under

Section 10 (2) of the Act as well as Article 329(a) is

available only when the mandatory requirements of

Section 9(2) are complied with by the Commission. In

support of the submission reliance was placed on the

decision of this Court in State of U.P. Vs. Pradhan

Singh Khesttra Samiti [ 1995 suppl. (2) SCC 305. 24

21. The decision in Pradhan (supra) upon which

reliance has been placed by the learned counsel for the

appellants in no manner supports the contention urged

before us. On the other hand, this Court found the

approach of the High Court to be objectionable for it

had gone into the question of validity of the

delimitation of the constituencies and also allotments

of seats to such constituencies although clause (a) of

Article 243-O of the Constitution enacts a bar on the

interference by the courts in electoral matters. In the

said case, this court dealt with the provisions of

Articles 243-C, 243-K and 243-O and the provisions of

Panchayat Raj Act,1947 and Section 9 of the

Delimitation Act, 1950. It was observed:

" What is more objectionable in the approach of the High Court is that although clause (a) of Article 243-O of the Constitution enacts a bar on the interference by the courts in electoral matters including the questioning of the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be made under Article 25

243-K and the election to any panchayat, the High Court has gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them. We may, in this connection, refer to a decision of this Court in Meghraj Kothari v. Delimitation Commission3. In that case, a notification of the Delimitation Commission whereby a city which had been a general constituency was notified as reserved for the Scheduled Castes. This was challenged on the ground that the petitioner had a right to be a candidate for Parliament from the said constituency which had been taken away. This Court held that the impugned notification was a law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made under Article 327 of the Constitution, and that an examination of Sections 8 and 9 of the Delimitation Commission Act showed that the matters therein dealt with were not subject to the scrutiny of any court of law. There was a very good reason for such a provision because if the orders made under Sections 8 and 9 were not to be treated as final, the result would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court. Although an order under Section 8 or Section 9 of the Delimitation Commission Act and published under Section 10(1) of that Act is not part of an Act of Parliament, its effect is the same. Section 10(4) of that Act puts such an order in the same position as a law made by Parliament itself which could only be made by it under Article 327. If we read Articles 243-C, 243-K and 243-O in place of Article 327 and Sections 2(kk), 11-F and 12- BB of the Act in place of Sections 8 and 9 of the Delimitation Act, 1950, it will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged nor the court could have entertained such challenge except on the ground that before 26

the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. The High Court not only entertained the challenge but has also gone into the merits of the alleged grievances although the challenge was made after the notification for the election was issued on 31- 8-1994."

22. It is true the observations made in this judgment

"that neither the delimitation of the Panchayat area nor

the constituencies in the said area and the allotments

of seats to the constituencies could have been

challenged nor the court could have entertained such

challenge except on the ground that before the

delimitation, no objections were invited and no hearing

was given" may lend some support to the submission

made by the learned counsel for the appellant that

there could be a challenge in case where final

determination of delimitation of constituencies was

made without inviting any objections whatsoever. But

that is not the ratio of the judgment. This court in

Pardhan (supra) was not considering any similar issue 27

as the one that had arisen for our consideration in the

present case. This Court did not take any view that the

proposals in respect of each constituency shall have to

be treated as an independent proposal and the

Commission's power to determine delimitation of the

constituencies is with reference to each constituency.

The objections and/or suggestions, as the case may be,

are required to be taken into consideration treating the

proposals as for whole of the State and delimitation of

the constituencies with reference to a State as a Unit.

23. In Meghraj Kothari Vs. Delimitation

Commission & Ors. [(1967) 1 SCR400], a

Constitution Bench of this court while interpreting

Sections 8, 9, and 10 of the Delimitation Commission

Act, 1962 which are in pari materia with the provisions

of the present Act, observed:

"In our view, therefore, the objection to the delimitation of constituencies could only be entertained by the Commission before the date specified. Once the orders made by the 28

Commission under Sections 8 and 9 were published in the Gazette of India and in the official gazettes of the States concerned, these matters could no longer be reagitated in a court of law. There seems to be very good reason behind such a provision. If the orders made under Sections 8 and 9 were not to be treated as final, the effect would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court. Section 10 (2) of the Act clearly demonstrates the intention of the Legislature that the orders under Sections 8 and 9 published under Section 10 (1) were to be treated as law which was not to be questioned in any court.

It is true that an order under Section 8 or 9 published under Section 10 (1) is not part of an Act of Parliament, but its effect is to be the same."

24. The Constitution Bench went to the extent of

saying that "an examination of Sections 8 and 9 of

the Act shows that the matters therein dealt with

were not to be subject to the scrutiny of any court of

law........... The provision of Section 10(4) puts orders

under ss 8 and 9 as published under Section 10 (1) 29

in the same street as a law made by Parliament itself

which....... could only be done under Article 327, and

consequently the objection that the notification was

not to be treated as law cannot be given effect to".

CONCLUSION:

25. In the present case, the Commission finally

determined the delimitation of Parliamentary

Constituencies in the State of Madhya Pradesh after

considering all objections and suggestions received by

it before the specified date and got published its orders

in the Gazette of India and in the Official Gazette of the

State as is required under Section 10 (1) of the Act.

The orders so published puts them "in the same street

as a law made by Parliament itself". Consequently that

Notification is to be treated as law and required to be

given effect to.

30

26. For all the aforesaid reasons, we find no

merit in this appeal. The appeal shall accordingly

stand dismissed with no order as to costs.

..........................................J. (Lokeshwar Singh Panta)

..........................................J. (B. Sudershan Reddy)

New Delhi;

March 31, 2009