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PETITIONER: ELECTION COMMISSION OF INDIA

       Vs.

RESPONDENT: MOHD. ABDUL GHANI AND ORS.

DATE OF JUDGMENT01/11/1995

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) SINGH N.P. (J) VENKATASWAMI K. (J)

CITATION:  1995 SCC  (6) 721        JT 1995 (7)   590  1995 SCALE  (6)155

ACT:

HEADNOTE:

JUDGMENT:                           JUDGMENT J.S. VERMA, J.:      Sixteen  villages   in  the   territorial  division  of District Murshidabad on the west bank of river Ganges in the State of West Bengal formed part of 8-Jangipur Parliamentary Constituency, and  the elections in 1977, 1980 and 1982 were held  on  this  basis.  This  is  how  these  villages  were described in  the Delimitation of Parliamentary and Assembly Constituencies Order,  1976 (for  short,  "the  Delimitation Order, 1976").  However, the  river  Ganges  having  started changing its  course in  1957, ultimately  brought about the change because of which these 16 villages came to be located towards the  east bank of the river. After this change these villages come to form part of the territorial division named as  District   Malda.  The   State   Government   made   the consequential changes  in the  description of these villages when  they   become  part   of  District   Malda   for   all administrative  purposes.  In  spite  of  this  geographical change resulting  in inclusion  of these  16 villages in the territorial division  of District  Malda for  administrative purposes, the  position of these villages remained unaltered for election  purposes and they continued to form part of 8- Jangipur Parliamentary  Constituency in  accordance with the Delimitation Order of 1976 made on the basis of the previous census held  in 1971.  The next  census is now due after the year 2000.      The respondents  who are  residents of  these  villages filed a  writ  petition  in  1984  in  Calcutta  High  Court claiming that  as a result of the above geographical change, these  16  villages  should  now  form  part  of  the  Malda Parliamentary Constituency  since they have become a part of District Malda  instead of the earlier District Murshidabad. It was  claimed that  this is  the duty cast on the Election Commission to  make such  a  change  by  virtue  of  Section

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9(1)(b) of  the Representation  of the people Act, 1950 (for short "the  R. P. Act, 1950). A writ of mandamus was claimed in the  writ petition  to direct  the Election Commission to make this  change. That  writ petition has been allowed by a learned Single Judge of the High Court, who has also granted a certificate  under Article  132 of  the  Constitution  for appeal to this Court. Hence this appeal.      The only  question for  decision is : Whether the above geographical change  resulting in these 16 villages becoming part of  District Malda  when earlier  they formed  part  of District Murshidabad, requires these villages to be included now in  Malda Parliamentary Constituency instead of Jangipur Parliamentary Constituency  as  shown  in  the  Delimitation Order,  1976  ?  This  question  has  to  be  answered  with reference to  Section  9(1)(b)  of  the  R.P.Act,  1950  and Section 11(1)(b)  of the Delimitation Act,1972 read with the Third proviso to Article 82 of the Constitution of India.      The relevant provisions are as under :-      Constitution of India           "81. Composition of the House of      the people.- (1)    Subject to the      provisions of  article 331, the House of      the people shall consist of -      a)not more  than five hundred and thirty      members chosen by direct election form      territorial constituencies in the      States, and      b) not more than twenty members to      represent the  Union territories, chosen      in such  manner as Parliament may by law      provide.      (2) For the purposes of sub-clause (a)      of clause (1) -      a) there shall be allotted to each State      a number of seats in the House of the      people in such manner that the ratio      between that number and the population      of the  State is, so far as practicable,      the same for all States; and      b) each State shall be divided into      territorial constituencies in such      manner that the ratio between the      population of  each constituency and the      number of seats allotted to it is, so      far as  practicable, the same throughout      the State:      Provided that the provisions of sub-      clause (a) of this clause shall not be      applicable for  the purpose of allotment      of seats in the House of the people to      any State so long as the population of      that State does not exceed six million.           (3) In this article, the expression      "population" means the population  as      ascertained at the last preceding census      of which  the relevant figures have been      published :      Provided that the reference in this      clause to the last preceding census of      which the relevant figures have been      published shall, until the relevant      figures for the first census taken after      the year 2000 have been published, be      construed as a reference to the 1971      census."

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         "82. Readjustment after each      census.-  Upon the completion of each      census, the allocation of seats in the      House of the people to the States and      the division of each State into      territorial constituencies shall be      readjusted by such authority and in such      manner as Parliament may by law      determine:           Provided that such readjustment      shall not affect representation in the      House of the people until the      dissolution of the then existing House:           Provided further that such      readjustment shall take effect from such      date as the president may, by order,      specify and until such readjustment      takes effect,  any election to the House      may be held on the basis of the      territorial constituencies existing      before such readjustment:           Provided also that until the      relevant figures for the first census      taken after the year 2000 have been      published, it  shall not be necessary to      readjust the  allocation of seats in the      House of the People to the States and      the division of each State into      territorial constituencies under this      article.      R.P. Act. 1950           "9.  Power of Election Commission      to maintain Delimitation Order up-to-      date.- (1)  The Election Commission may,      from time to time, by notification      published in the Gazette of India and in      the Official Gazette of the State      concerned-      (a)  correct any printing mistake in the      Delimitation of Parliamentary and      Assembly Constituencies  Order, 1966, or      as the  case may be, the Delimitation of      Parliamentary and Assembly      Constituencies Order,  1976 or any error      arising therein from inadvertent slip or      omission;      (a)  make such amendments in the      Delimitation of Parliamentary and      Assembly Constituencies Order, 1976 as      appear to it to be necessary or      expedient for consolidating with that      Order any notification or order relating      to delimitation of Parliamentary or      assembly constituencies (including      reservation of seats for the Scheduled      Castes or the Scheduled Tribes in such      constituencies)issued under  any Central      Act;      (b)  where the boundaries or name of any      district or any territorial division      mentioned in the Order are or is      altered, make  such amendments as appear      to it to be necessary or expedient for      bringing the Order up-to-date.           (2)  Every notification  under this

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    section shall  be laid as soon as may be      after it  is issued, before the House of      the People  and the Legislative Assembly      to the State concerned."      Dolimitation Act. 1972      "9.  Delimitationi of onstituencies.-      (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  to single-member territorial      constituencies and delimit them on the      basis of the latest census figures,      having regard to the provisions of the      Constitution and the provisions of the      Acts specified  in Section 8 and also to      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;      (b)  every assembly constituency shall      be so delimited as to fall wholly within      one Parliamentary constituency;           (2) The Commission shall -      (d)  thereafter by one or more orders      determine -           (i) the delimitation of           Parliamentary constituencies, and           (ii) the delimitation of assembly           constituencies,      of each State.           10.  Publication of orders and      their date of operation.- (1) The      Commission shall cause each of its      orders made under section 8 or section 9      to be  published in the Gazette of India      and in the Official Gazettes of the      States concerned.           (2)  Upon publication in the      Gazette of India, every such order shall      have the force of law and shall not be      called in question in any court.           11.  Power to maintain delimitation      orders up-to-date.- (1) The Election      Commission may, from time to time, by      notification in the Gazette of India and      in the Official Gazette of the State      concerned -      (a)  correct any printing mistake in any      of the orders made by the Delimitation      Commission under  section 9 or any error      arising therein from an inadvertent slip      or omission; and      (b)  where the boundaries or name or any      district or any territorial division      mentioned in  any of the said orders are      or is altered, make such amendments as      appear to it to be necessary or      expedient for bringing the orders up-to-      date, so, however that the boundaries or

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    areas or extent of any constituency      shall not be changed by any such      notification.           (2)  Every notification  under this      section shall be laid, as soon as may be      after it  is issued, before the House of      the people  and the Legislative Assembly      of the State concerned."                          (emphasis supplied )      Article 81  of the  Constitution deals with composition of the  House of the People. Article 81(2)(b) indicates that each State  shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and  the number  of seats allotted to it is, so far as  practicable,  the  same  throughout  the  State  and Article  81(3)  indicates  that  the  population  means  the population as  ascertained at  the  last  preceding  census. Article 82  then provides for readjustment after each census and the  Third proviso therein makes it clear that until the relevant figures  in the  first census  taken after the year 2000 have  been published  "it shall  not  be  necessary  to readjust the  allocation of seacs in the House of the people to  the   States  and   the  division  of  each  State  into territorial constituencies  under this article." This is the prescribed limit  within which readjustment can be made till the next  census figures  have been published after the year 2000.      The Representation  of the  People Act, 1950, is an Act to provide  the allocation  of seats in and the delimitation of constituencies  for the purpose of election to, the House of People  and  the  Legislatures  of  States,  and  certain matters connected  therewith. Section  9 thereof  deals with the  power   of  Election   Commission   to   maintain   the Delimitation Order  up to  date. The  duty of  the  Election Commission under  Section 9  is to  update the  Delimitation Order, 1976  in the manner provided therein. This power has, therefore, to be construed in the context of the duty of the Election Commission  to update the Delimitation Order, 1976, if any change takes place as specified in the provision. The mandamus issued by the High Court in the present case is for the  performance  of  this  obligation  in  accordance  with Section 9(1)(b), which is as under which is as under :-      "1) The Election Commission may from      me to time, by notification published in      the Gazette of India and in the Official      Gazette of the State concerned, -      (b)  where the boundaries or name of any      district or any territorial division      mentioned in the Order are or is      altered, make  such amendments as appear      to it to be necessary or expedient for      bringing the Order up-to-date." This provision is attracted "where the boundaries or name of any district  or any  territorial division  mentioned in the order are or is altered", to "make such amendments as appear to it  to be  necessary or  expedient for bringing the order up-to-date." It  means that where there is any alteration in the boundaries  or in  the  name  of  any  district  or  any territorial division mentioned in the order, such amendments which have  become  necessary  to  update  the  Delimitation Order, should  be made.  According to  the respondents (writ petitioners) and as held by the High Court, this duty can be performed in  the present  case only  by  inclusion  of  the aforesaid   16   villages   in   the   Malda   Parliamentary constituency  and   their  exclusion   from   the   Jangipur

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Parliamentary Constituency  of which  they form  a  part  as shown in  the Delimitation  Order, 1976.  The  question  is: Whether the  Delimitation Order  can be made up-to-date only by change  of the boundaries of these two constituencies, as suggested or  by change of the description of these villages in the Delimitation Order, 1976, describing them now as part of District  Malda instead  of District  Murshidabad without disturbing  their   continuance  as  part  of  the  Jangipur Constituency ?  The relevant  provision in  the Delimitation Act, 1972 must also be seen now.      The Delimitation Act, 1972 is an Act to provide for the readjustment of  the allocation of seats in the House of the people to  the States  and the  division of  each State into territorial constituencies for elections to the House of the people etc.,  and for matters connected therewith. Section 9 prescribes  the   manner  in   which  the  Commission  shall distribute the seats in the House of the people allocated to each State  and delimit  them on  the basis  of  the  latest census figures  having  regard  to  the  provisions  of  the Constitution and  the provisions  of the  Acts specified  in Section 8  and the  provisions specified therein. Section 10 prescribes  the   mode  of  publication  of  orders  of  the Commission and their date of operation; and adds that " upon publication in  the Gazette of India, every such order shall have the force of law and shall not be called in question in any court."  Section 11  (1)(b) then  confers power  on  the Election Commission  to maintain  Delimitation Orders  up to date which is as under :-      "(1) The Election Commission may, from      time to time, by notification in the      Gazette of India and in the Official      (b)  Where the boundaries or name of any      district or any territorial division      mentioned in  any of the said orders are      or is altered, make such amendments as      appear to it to be necessary or      expedient for bringing the orders up-to-      date, so, however, that the boundaries      or areas or extent of any constituency      shall not be changed by any such      notification"                          (emphasis supplied ) A comparison  of Section  11(1)(b) of  the Delimitation  Act 1972 with  Section 9(1)(b)  of the R.P. Act, 1950 shows that except for  the last part of Section 11(1)(b) it is the same as Section 9(1)(b) of the R.P. Act, 1950; and the additional words in  Section 11(1)(b)  are -  "so,  however,  that  the boundaries or  areas or extent of any constituency shall not be changed by any such notification." These additional words leave no  doubt that  the  power  to  maintain  Delimitation Orders up-to-date  conferred on  the Election  Commission is subject to the restriction that in updating the Delimitation Orders occasioned by an alteration of the boundaries or name of any district or any territorial division it does not make any change  in the  boundaries or  areas or extent or of any constituency as  shown in the Delimitation Order. Obviously, the exercise  required  to  be  performed  by  the  Election Commission as  a result  of any alteration in the boundaries or  name   of  any  district  or  any  territorial  division mentioned in  the Delimitation  Order has to be made only by changing the description of that area which has undergoing a geographical change  to correctly  describe that part of the constituency,  the   boundaries,  area  and  extent  of  the constituencies remaining the same, i.e., unaltered. In other words,  there   is  a   specific  restriction   against  any

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alteration or  change in the boundaries or area or extent of any constituency  as shown in the Delimitation Order and the exercise of  updating the  Delimitation Order has to be made merely for the purpose of correcting the description of that part of  the constituency  which has  undergone a  change in description  because   of  the   subsequent  change  in  the boundaries or  name  of  any  district  or  any  territorial division mentioned in the Delimitation Order.      There can  be no  doubt that  Section 11(1)(b)  of  the Delimitation  Act,   1972  is   incapable   of   any   other construction since  it does  not permit  the making  of  any change in  the boundary  or area  or in  the extent  of  the constituency as  described in the Delimitation Order because of the  express prohibition  therein. Section 9(1)(b) of the R.P. Act, 1950, must be construed similarly for a harmonious construction of  both these  provisions. If  the same  words which are  used in  Section 9(1)(b) are used also in Section 11(1)(b) with  this further  addition containing the express restriction,  there  is  no  occasion  to  construe  Section 9(1)(b) of  the R.P.  Act, 1950  differently  to  permit  an exercise expressly  forbidden by  Section  11(1)(b)  of  the Delimitation Act, 1972.      In our  opinion, the  entire scheme of these enactments and the nature of power conferred on the Election Commission to merely  update  the  Delimitation  Order  by  making  the necessary changes on account of Subsequent events to correct the description  in the  Delimitation Order which has become inappropriate, lead  to the conclusion that the power of the Election Commission  under these  provisions is only of this kind.  This   power  cannot  extend  to  alteration  of  the boundaries or area or extent of any constituency as shown in the Delimitation Order. The prayer made in the writ petition filed in  the High  Court which has been granted by the High Court is  contrary to  the express  prohibition contained in Section 11(1)(b)  of the  Delimitation Act, 1972. This being so,  a   mandamus  could  not  be  issued  to  the  Election Commission to  perform an  exercise expressly  forbidden  by law. This appeal has, therefore, be allowed.      Consequently, the  appeal is  allowed. The  judgment of the High Court is set aside.