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PETITIONER: ANUGRAH NARAIN SINGH & ANR.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH & ORS.

DATE OF JUDGMENT:       10/09/1996

BENCH: SEN, S.C. (J) BENCH: SEN, S.C. (J) JEEVAN REDDY, B.P. (J)

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SEN,J.      Leave granted.      This is  an appeal  against  an  order  passed  by  the Division Bench  of the  Allahabad High  court on  13.11.1995 whereby municipal  elections  in the State of Uttar Pradesh, which were  scheduled to  take place  from 17th  November to 20th November, 1995 were cancelled and/or postponed. Anugrah Narain Singh,  who is  a former  member of  the  Legislative Assembly of  the State  of Uttar  Pradesh, and  Mrs.  Rashid Khan, a  candidate for the post of Mayor, Allahabad, are the appellants herein.      No municipal  election had  taken place in the State of Uttar Pradesh  for the  last ten  years. The appellant No. 1 moved a  writ petition  in the  Allahabad High Court praying for a  direction upon the State Government to hold elections of  the  Municipal  Corporations  by  31st  May,  1994.  The petition succeeded.  The Allahabad  High Court  directed the State  of  Uttar  Pradesh  to  hold  the  elections  of  the Municipal Corporations  by 31st July, 1995. On the prayer of the Government,  the time  was extended  till 31st November, 1995 with  specific direction  to conclude  the election  by that time.  On 11th  October, 1995 a notification was issued for holding  election  for  all  town  areas  and  Municipal Corporations in  the State  of Uttar  Pradesh. 16th  to 20th October of  1995 were  the  dates  within  which  filing  of nominations had  to be  completed and 24th October, 1995 was fixed as  the last  date of  withdrawal. Voting  was to take place in  different stages  in different  areas of the State beginning on 17th and concluding on 20th of November, 1995.      The notification  dated 11th  October, 1995 was amended by a  further notification dated 13th October, 1995 by which only the date of withdrawal of the nominations was extended.      Ten persons  by a  Writ Petition  (Civil  Miscellaneous Writ Petition No. 29614 of 1995) filed in the Allahabad High Court,  challenged   the  notifications   for  holding   the municipal elections  in the State. Fifteen similar petitions

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were also filed before the Lucknow Bench. The prayers in all these writ petitions mainly were that in view of the defects in the  electoral rolls  and delimitation  of constituencies (wards) and  also on  the ground of arbitrary reservation of constituencies for women, Scheduled Castes, Scheduled Tribes and Backward  Classes, the  process of  election  should  be postponed.  These  petitions  were  filed  as  soon  as  the notification for holding elections  dated 11th/13th October, 1995 was  issued. The  Lucknow Bench  of the  Allahabad High Court dismissed  the petitions on the ground that in view of the bar  imposed by  Article 243-ZG of the Constitution, the writ jurisdiction of the Court could not be invoked to stall the election process.      This judgment  of the  Lucknow Bench  of the High Court (S.H.A. Raza and A.S. Gill, JJ) in writ petition No. 2997 of 1995 and  the other  connected cases  was placed  before the Allahabad High  Court in course of hearing of this case, but U.P. Singh  and I.M.  Qudussi, JJ. passed the impugned order stopping the election process regardless of the judgment and order passed  by the  Lucknow Bench  of the High Court. This was improper,  if the  Division  Bench  of  the  sitting  at Allahabad was  of the  view that  Lucknow Bench had erred in dismissing the  writ petition challenging the holding of the municipal   elections, the  matter should have been referred to a  larger Bench.  A peculiar  situation has  come  about. According to  the Lucknow  Bench of the High Court, the writ petitions  challenging  the  municipal  elections  were  not maintainable and  elections should  take place  as scheduled whereas another  Division Bench  of the Allahabad High Court has  taken  a  contrary  view  and  has  directed  that  the elections should not be held according to the schedule.      Another important  feature  of  this  case,  which  was ignored  by   the  High  Court,  was  that  the  process  of reservations  for   various  wards   and  delimitations   of constituencies had  been completed  before June, 1995. There was ample  opportunity under  the Act  to  raise  objections before finalisation  of the delimitation process. Section 32 of the  Uttar Pradesh Municipal Corporations Adhiniyam, 1959 (hereinafter referred  to as  ’the U.P.  Act’) has empowered the State  Government divide  the municipal areas into wards on the  basis of  the population and determine the number of wards into  which the  municipal area should be divided. The State Government  may also  determine the number of seats to be reserved  for the  Scheduled  Castes,  Scheduled  Tribes, Backward Classes  and the  women. The  State  Government  is required to  issue an order for this purpose which has to be published in  the official  Gazette  for  objections  for  a period of  not less  than seven  days. After considering the objections that  may be  filled,  the  draft  order  may  be amended, altered  or modified. Whatever the State Government does, after  considering the  objections, will  be the final order. That process has been gone through. If it is the case of the  writ petitioners  that they  filed objections to the draft   orders   and   their   objections   were   overruled arbitrarily, they  should have  challenged it  forthwith. In fact the  notifications of  reservation of various wards and delimitation of  constituencies had  been  completed  before June, 1995.  After all  these things  became final, the writ petitioners waited  till 26th   October,  1995 to  file this writ  petition   when  the   last  date  for  withdrawal  of nomination papers  was over.  This writ petition should have been dismissed  on the ground of laches only. At a time when the election  process was  in full  swing, huge expenditures had been  incurred by  the candidates, the political parties and also  the Government  for  this  purpose,  some  of  the

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candidates had  already been declared elected unopposed, the Court decided to intervene and stop the elections.      On  15th   November,  1995,   an  application   seeking permission to  file the  Special Leave Petition was moved to this Court  by the  appellants who  were not  parties to the writ petitions  in the  Court below.  On 16th November, 1995 the permission was given and the following  order was passed :-      "At the outset,  we may record that      the learned  ASG appearing  for the      State of  Uttar Pradesh  has stated      that  the   Government   of   Uttar      Pradesh has cancelled the elections      only because of and pursuant to the      impugned judgment  and not  for any      other reason.  The learned  ASG has      further stated  that the  Govt.  of      Uttar Pradesh  will  abide  by  any      orders that  this Court may make in      this matter.           After hearing  the counsel for      the     parties      and      after      considerations   the    facts   and      circumstances of  the case, we are,      prima facie,  of the  opinion  that      there are no sufficient grounds for      canceling      the       elections.      Accordingly,     the      following      directions  are made :      1.   The  elections   scheduled  on           20th &  26th of November, 1995           for the offices of Mayor shall           go on as scheduled.      2.   The elections  scheduled to be           held on 20th November 1995 for           the wards  in the  9 municipal           corporations shall  go  on  as           scheduled.      3.   The   elections    for   wards           scheduled on  22nd Nov.,  1995           for  Nagar   Palikas  (446  in           number) shall  also go  on  as           scheduled.      4.   The elections for the wards to           the 2  municipal  corporations           scheduled       on        26th           November,1995 shall also go on           as scheduled.      5.   So far  as  the polling, which           was to  be held  on 17th Nov.,           1995, i.e.  tomorrow  for  the           224    Nagar    Palikas,    is           concerned,    it     is    not           practicable  or   possible  to           hold the  elections  tomorrow,           i.e.  17th   Nov.,  1995.   In           consultation with  the learned           counsel for the State Election           Commission,  we   direct  that           these  elections  shall  stand           postponed to  and be  held  on           24th November, 1995.      6.   It is  equally clear  that the           results  of   these  elections           shall be subject to the orders

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         that may  be  passed  in  this           matter.      7.   It is made clear that  when we           have   said   in   the   above           directions   that    elections           shall    be    conducted    as           scheduled, it  means that  the           elections shall  be  held  and           concluded  as   notified   and           results declared.           The judgment of the High Court      impugned herein  is stayed  subject      to the above directions.      On 17th  November, 1995,  on a prayer made on behalf of the State  of U.P.,  a  further  order  was  passed  to  the following effect :-      "Learned counsel  for the  State of      U.P.  states  that  in  so  far  as      polling which  was  to  take  place      today and which is now postponed to      24.11.1995 is  concerned, the  date      of     counting      should      be      correspondingly postponed.  This is      implicit  in   the  order  we  have      passed yesterday. In any event with      a view  to  obviate  any  room  for      controversy we direct that it shall      be  open   to  the  State  Election      Commission to  notify fresh date of      counting in so far as the aforesaid      postponed polling is concerned."      We have been informed that election has taken place and counting has also been completed.      The question  that came  up  for  decision  before  the Allahabad High  Court has  been state in the judgment in the following words :-      "....... the common question raised      in all  these petitions  is  as  to      whether in  terms of Article 243-ZG      of  the   Constitution   there   is      complete  and   absolute   bar   in      considering any  matter relating to      Municipal Election  on  any  ground      whatsoever after the publication of      the   notification    for   holding      Municipal Election."      The answer must be emphatically in the affirmative. The bar imposed  by Article 243-ZG is two-fold. Validity of laws relating to  delimitation and  allotment of seats made under Article  243-ZA  cannot  be  questioned  in  any  Court.  No election to  a Municipality  can be  questioned except by an election petition.  Moreover,it is  well settled by now that if the  election is  immanent or  well underway,  the  Court should not  intervene to  stop the election process. If this is allowed  to be  done, no  election will  ever take  place because someone or the other will always find some excuse to move the  Court and  stall the  elections.  There  were  ten petitioners in  the main writ petition and several others in connected writ petitions, who had questioned the fairness of the action  of the  authorities concerned  in publication of the notifications dated 11th October, 1995 and 13th October, 1995 pursuant  to  which  the  elections  to  the  Municipal Corporations throughout  the State  of U.P. were to be held. The State  Government and  also the Election Commission took the stand  before the  High Court that after the publication

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of the  notification for  holding Municipal  Elections,  the High Court  under Article  226 of the Constitution could not interfere with  the election process. On the other hand, the writ-petitioners’ contention was that the election was being held in  a farcical  manner and the confidence of the people has  been   shaken  in   the  electoral   process  and   the constitutional guarantee  municipalities had  been thrown to the winds.  In this  situation, Article  243-ZG could not be treated as  an absolute  bar to  doing justice under Article 226 of  the Constitution.  The case  of the writ petitioners was that  they were  residents of  different  Nagar  Nigams. Their names had been duly entered as voters in the electoral rolls of  their wards.  They were  very keen  to contest the elections  for   various  posts   including  the   post   of Chairperson  of   the  Nagar  Nigam.  However,  they  became ineligible on account of allocation and reservation of wards and the  municipal areas  from which they wanted to contest. The case  of the  writ petitioners  was that  the  erstwhile Nagar Mahapalikas  were established  under the Uttar Pradesh Municipal Corporations  Adhiniyam,  1959.  The  Constitution (74th Amendment)  Act, 1992 came into force on June 1, 1993. By this  Amendment Act and Part IX-A, Articles 243-P to 243- ZG were  inserted in  the Constitution.  Consequent upon the 74th Amendment  of the Constitution, various amendments were made in  the Uttar  Pradesh Municipal Corporations Adhiniyam to bring the Act in line with the constitutional amendments. Article  243-Q   envisaged   the   constitution   of   Nagar Panchayats, Municipal  Councils and  Municipal Corporations, etc, depending  upon the  density  of  the  population,  the revenue generated  for local  administration, the percentage of employment  in non-agricultural  activities, the economic importance or  such other  factors as may be deemed fit. The validity  of   the  process   of  the  delimitation  of  the constituencies that  took place  after the  amendment of the U.P. Act  and also  the  reservations  made  in  furtherance thereof  and   allocation  of   reserved  seats  in  the  11 municipal areas  in the  State of  U.P.,  namely  Allahabad, Agra,  Aligarh,   Bareilly,  Gorakhpur,  Ghaziabad,  Kanpur, Lucknow, Moradabad,  Meerut and  Varanasi, was challenged by the writ  petitioners. Basically,  the challenges appears to be about  reservation of seats in favour of Scheduled Castes and Scheduled  Tribes and  Backward Classes in the Municipal areas. It  was argued  before the High Court and also before this Court  that important  safeguards of  the  Constitution were overlooked when  the dates  of holding of the elections were announced.      There are  several reasons  why these  arguments of the writ petitioners should not have been upheld. The High Court overlooked the  fact that  no municipal   election  had been held in  the State for nearly ten years and the dates of the elections were  fixed under  the direction given by the High Court in  another case. Importance  of holding elections  at regular  intervals   for  Panchayats,  Municipal  bodies  or Legislatures  cannot   be  over-emphasised.  If  holding  of elections is  allowed to  be stalled  on the complaint of  a few individuals, then grave injustice will be done to crores of  other   voters   who   have   right   to   elect   their representatives to  the local  bodies. As  a result  of  the order of  the High  Court, elections  that were  going to be held to  the local  bodies after  a long lapse of nearly ten years were  postponed   indefinitely. It  was pointed out by this Court in the case of Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman, (1985) 4 SCC 689 at 703, that "the fact that certain claims  and objections  are not finally disposed of, even assuming  that they  are filed  in accordance with law,

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cannot arrest  the process  of election  to the Legislature. The election  has to  be held  on the basis of the electoral roll  which  is  in  force  on  the  last  date  for  making nominations,"      The Court  also quoted  from its  order dated March 30, 1982 that "no High Court in the exercise of its powers under Article  226   of   the   Constitution   should   pass   any orders,interim or  otherwise,  which  has  the  tendency  or effect  of  postponing  an  election,  which  is  reasonably imminent and  in relation  to which its writ jurisdiction is invoked. The  imminence of the electoral process is a factor which   must guide  and govern  the passing of orders in the exercise of  the High  Court’s writ  jurisdiction. The  more imminent  such   process,  the   greater  ought  to  be  the reluctance of  the High  Court to  do  anything,  or  direct anything to  be  done,  which  will  postpone  that  process indefinitely  by   creating  a   situation  in   which,  the Government of  a State  cannot be  carried on  in accordance with     the     provisions     of     the     Constitution. ....................The High  Courts  must  observe  a  self imposed limitations on their power to act under Article 226, by refusing  to pass  orders or  give directions  which will inevitably result in an indefinite postponement of elections to legislative  bodies, which  are the  very essence  of the democratic foundation and functioning of our Constitution.      In this  case, the High Court has ignored the fact that the electoral process was well underway and was scheduled to be completed  in less  than ten  days’ time.  The High Court also  failed  to  observe  the  self-imposed  limitation  as enjoined by  this Court  in the  case of  Laxmi  Charan  Sen (supra).      In Laxmi Charan Sen’s case, this Court was dealing with Part XV  of the Constitution which deals with preparation of electoral rolls  for, and  the conduct  of, all elections to Parliament, and  to the Legislatures of different States and all elections  to the offices of the President and the Vice- President. We are in this case, concerned with the elections to municipal  bodies. But  the principles laid down in Laxmi Charan Sen’s  case will  apply in  full force  to  municipal elections because  various Articles  dealing with holding of municipal elections  in Part  IX-A of  the Constitution  are similarly worded.  In  fact,  highest  importance  has  been attached to  holding of  panchayat as  well    as  municipal elections by  the Constitution.  Part IX  and  IX-A  of  the Constitution  were  introduced  by  the  Constitution  (73rd Amendment) Act,  1992 and  (74th Amendment)  Act,  1992.  By these two  Parts, it  was intended  to take democracy to the grassroot  level.  Part  IX  deals  with    constitution  of panchayats,  composition    of  panchayats  and  holding  of regular elections  to the panchayats. Article 243-O contains a bar  to interference  by Court  in electoral matters. This bar is  similar to  the bar  contained in Article 329 of the Constitution in  Part  XV,  the  implication  of  which  was explained by  this Court  in the  case of  Laxmi Charan  Sen (supra).      Part   IX-A   of   Constitution      deals   with   the Municipalities and  lays down  that   in every  State  there shall be  constituted (a)   Nagar Panchayat; (b) a Municipal Council and  (c) a Municipal Corporation, in accordance with the  provisions   of  Part   IX-A   of   the   Constitution. ’Municipality’ has  been defined  to mean ’an institution of self-government  constituted   under  Article   243-Q’   and ’Municipal  area’   means  "the   territorial  areas   of  a Municipality as  is notified  by  the Governor’, Composition of Municipalities  has been  dealt with  in  Article  243-R,

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which provides that all the seats in a Municipality shall be filled  by  persons  chosen  by  direct  election  from  the territorial constituencies  in the  Municipal area  and  for this purpose  each Municipal  area  shall  be  divided  into territorial constituencies  to be  known as  wards.  Article 243-S deals  with the  constitution and composition of Wards Committees and  provides that the Legislature of a State may pass suitable  legislation in  respect of matters enumerated therein.      Article 243-T  deals  with  reservation  of  seats  and Provides as under:-      "Reservation of  seats, - (1) Seats      shall be reserved for the Scheduled      Castes and  the Scheduled Tribes in      every Municipality  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  Municipality  as      the  population  of  the  Scheduled      Castes in the Municipal areas or of      the   Schedule    Tribes   in   the      Municipal  Areas   bears   to   the      population of  that area  and  such      sheets may  be allotted by rotation      to   different constituencies  in a      Municipality.           (2) 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,           (3) 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   Municipality      shall be  reserved  for  women  and      such  seats   may  be  allotted  by      rotation        to        different      constituencies in a Municipality.           (4)     The     offices     of      Chairpersons in  the Municipalities      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,           (5) The  reservation of  seats      under clauses  (1) and  (2) and the      reservation    of     offices    of      Chairpersons   (other    than   the      reservation for women) under clause      (4) shall  cease to  have effect on      the  expiration   of   the   period      specified in Article 334.           (6) Nothing in this Part shall      prevent the Legislature  of a State      from  making   any  provision   for      reservation   of   seats   in   any      Municipality    or    offices    of

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    Chairpersons in  the Municipalities      in  favour  of  backward  class  of      citizens."      Article  243-ZA   provides  that  the  superintendence, direction and  control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in Article  243-K. The  Legislature  of  a  State  has  been empowered to  make laws  providing for  all matters relating to, or  in connection with, elections to the Municipalities. Under Article  243-K,  the  superintendence,  direction  and control of  the preparation  of electoral rolls for, and the conduct of, all elections to the Panchayats have been vested in  a  State  Election  Commission  consisting  of  a  State Election Commissioner  to be  appointed by    the  Governor. Article 243-ZF imposes a time limit of one year within which provisions of  State Laws  relating to Municipalities, which were inconsistent  with the  provisions of Part-IX had to be amended and  brought in  line with  the amended  provisions. Article 243-ZG  is the subject-matter of debate in this case and lays down :-      "243-ZG,  Bar  to  interference  by      courts   in    electoral   matters,      Notwithstanding  anything  in  this      Constitution, :-      (a)  the  validity   of   any   law           relating to  the  delimitation           of   constituencies   or   the           allotment  of  seats  to  such           constituencies,      made   or           purporting to  be  made  under           Article 243-ZA  shall  not  be           called  in   question  in  any           court;      (b)  no     election     to     any           Municipality shall  be  called           in  question   except  by   an           election petition presented to           such  authority  and  in  such           manner as  is provided  for by           or under  any law  made by the           Legislature of a State."      Because of  the mandate  contained in Article 243-ZF of the Constitution,  U.P. Act  12 of  1994 was passed to bring the Uttar  Pradesh Municipal Corporations Adhiniyam, 1959 in line with  the newly added provisions of the Constitution in respect of  Panchayats and  Municipalities, Section 4 of the U.P. Act  provides that  a Municipal Corporation constituted under Article  243-Q(1) (c)  of the  Constitution shall be a body corporate.  It has  been provided by Section 6 that the Corporation shall  consist of  a Nagar Pramukh and Sabhasads whose number  shall be  such as the State Government may, by notification in  the   official Gazette, fix but which shall not be  less than  sixty and  not more  than one hundred and ten, in  addition to  certain nominated members of the State Government.  Section   6-A  deals   with  constitution   and composition of wards committees. The provisions relevant for the purpose of this case are as under :-      "6-A Constitution  and  composition      of  wards  committees  -  (1)  Each      Wards Committee,  constituted under      clause (1)  of Article 243-S of the      Constitution within the territorial      area  of  a  Corporation  having  a      population of  three lakh  or more,

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    shall consist of ten wards.           (2)  The territorial  area  of      Wards Committee  shall consists  of      the territorial  areas of the wards      comprised in such committee.           (3)  Each   Wards    Committee      shall consist of           (a)  all     the     Sabhasads                representing  the   wards                within  the   territorial                area   of    the    Wards                Committee;           (b)  Such other  members,  not                exceeding five, as may be                nominated  by  the  State                Government  from  amongst                persons   registered   as                electors    within    the                territorial area  of  the                concerned Wards Committee                who     have      special                knowledge  or  experience                in              municipal                administrations."      Section 7 deals with reservation of seats is as under:-      "7. Reservation  of seats :- (1) In      every Corporation,  seats  will  be      reserved for  the Scheduled Castes,      the  Scheduled   Tribes   and   the      backward classes and  the number of      seats so  reserved shall  as nearly      as may be, bear the same proportion      to the  total number of seats to be      filled by  direct election  in  the      Corporation, as  the population  of      the   Scheduled   Castes   in   the      municipal area  or of the Scheduled      Tribes in  the Municipal area or of      the   backward   classes   in   the      municipal area,  bears to the total      population of  such area  and  such      seats may  be allotted  by rotation      to different wards in a Corporation      in such  order as may be prescribed      by   rules.   Provided   that   the      reservation   for    the   backward      classes  shall  not  exceed  twenty      seven per  cent of the total number      of seats in a Corporation;           Provided further  that if  the      figures  of   population   of   the      backward classes are not available,      their population  may be determined      by carrying  out a  survey  in  the      manner prescribed by rules.           (2)  x     x     x     x     x           (3) Not less than one-third of      the  seats   reserved  under   sub-      section (1)  shall be  reserved for      the   woman    belonging   to   the      Scheduled  castes,   the  Scheduled      Tribes or  the backward classes, as      the case may be.           (4) Not less than one-third of      the total  number of  seats  to  be

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    filled  by  direct  election  in  a      Corporation, including  the  number      of seats reserved under sub-section      (3) ,  shall be  reserved for women      and such  seats may  be allotted by      rotation to  different wards in the      Corporation in such order as may be      prescribed by rules.           (5) The  offices of  the Nagar      Pramukhs and the Upa Nagar Pramukhs      of the  Corporations in  the  state      shall be reserved for the Scheduled      Castes, the  Scheduled  Tribes  and      the backward  classes and  women in      such manner as may be prescribed by      rules.           Provided that if the office of      the Nagar  Pramukh of a Corporation      is   reserved, the  office  of  Upa      Nagar   Pramukh    shall   not   be      reserved.           (6)  The  reservation  of  the      seats and  the offices  under  this      section for  the  Scheduled  Castes      and  the   Scheduled  Tribes  shall      cease to  have effect on the expiry      of the  period specified in Article      334 of the Constitution.           Explanation -  It is clarified      that nothing  in this section shall      prevent the  persons  belonging  to      the Scheduled Castes, the Scheduled      Tribes, the  backward  classes  and      the women from contesting elections      to unreserved seats and offices."      The   U.P.   Act   also   specifically   provides   for delimitation of wards:-      "31. Provisions  of Wards - (1) For      the  purpose  of  the  election  of      Sabhasads,  each   municipal   area      shall be  divided into  territorial      constituencies to be known as wards      in the  manner provided  in Section      32 and  there shall  be a  separate      electoral roll for each ward.      (2) Each  ward shall be represented      by    each    Sabhasad    in    the      Corporation.      32 Delimitation  Order  -  (1)  The      State Government shall be order -           (a)  divide a  municipal  area                into wards in such manner                that  the  population  in                each ward  shall, so  far                as  practicable   be  the                same    throughout    the                municipal area;           (b)  determine the  number  of                wards   into    which   a                municipal area  shall  be                divided ;           (c)  determine the  extent  of                each ward;           (d)  determine the  number  of                seats to  be reserved for

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              the Scheduled Castes, the                Scheduled   Tribes,   the                backward classes  or  the                women.           (2)  The draft  of  the  Order      sub-section (1)  shall be published      in   the   official   Gazette   for      objections for a period of not less      than seven days.           (3) The State Government shall      consider any  objection filed under      sub-section(2) and  the draft Order      shall, if  necessary,  be  amended,      altered or modified accordingly and      thereupon it shall become final.      33.  Alteration   or  amendment  of      Delimitation Order and its effect -      (1) The  State Government may, be a      subsequent Order,  alter  or  amend      any final  Order under  sub-section      (3) of Section 32.           (1-A) -  For the alteration or      amendment of  any order  under sub-      section (1), the provisions of sub-      sections (2)  and (3) of Section 32      shall mutatis mutandis apply.           (2)  Upon  the  alteration  or      amendment of  any final Order under      this Section,  the State Government      shall   apportion    the   existing      Sabhasads to the altered or amended      wards so  as to  provide so  far is      reasonably  practicable  for  their      continuing to  represent as large a      number as  possible of their former      constituents.           (3) x   x   x    x   x   x   x      The validity of Sections 6-A, 31, 32 and 33 of the U.P. Act dealing with delimitation  of wards cannot be questioned in a  court of  law because  of the  express bar  imposed by Article 243-ZG of the Constitution. Section 7 contains rules for  allotment   of  seats  to  the  Scheduled  Castes,  the Scheduled Tribes and the Backward Class people. The validity of that  Section cannot  also be  challenged. That apart, in the instant  case, when  the delimitation  of the  wards was made, such  delimitation was not challenged on the ground of colourable exercise  of power  or on  any  other  ground  of arbitrariness. Any  such challenge  should have been made as soon as  the final  order was published in the Gazette after objections to  the draft order were considered and not after the notification  for holding  of the elections was  issued. As pointed  out in  Lakshmi Charan Sen’s Case, that the fact that certain  claims and objections had not been disposed of before the final order was passed, cannot arrest the process of election.      In this  connection, it  may be  necessary to   mention that there  is one  feature to  be found in the Delimitation Commission Act, 1962 which is absent in the U.P. Act Section 10 of  the Act  of 1962  provided that  the Commission shall cause each  of its  order made  under Sections 8 and 9 to be published in  the Gazette  of  India  and  in  the  official Gazettes of  the State  concerned. 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. Because of  these specific  provisions of  the  Delimitation

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Commission Act,  1962 in  the case  of  Meghraj  Kothari  v. Delimitation Commission  and others, (AIR 1967 SC 669), this Court held that notification of orders passed under Sections 8 and  9 of  that Act  had the  force of  law and therefore, could not be assailed in any court of law because of the bar imposed by  Article 329.  The U.P.  Act  of  1959,  however, merely provides  that the  draft order  of  delimitation  of municipal areas  shall be  published in the official Gazette for objections for a period of not less than seven days. The draft order  may be  altered or  modified after  hearing the objections filed, if any . Thereupon, it shall become final. It does  not lay  down that  such  an  order  upon  reaching finality will  have the  force  of  law  and  shall  not  be questioned in  any court of law. For this reason, it may not be possible  to say that such an order made under Section 32 of the U.P. Act has the force of law and is beyond challenge by virtue  of Article  243-ZG. But any such challenge should be made  soon  after  the  final  order  is  published.  The Election Court  constituted under Section 61 of the U.P. Act will not  be competent  to entertain  such an  objection. In other words,  this ground  cannot be said to be comprised in sub-sections (iv)  of clause (d) Section 71 of the U.P. Act. In the  vary nature  of things,  the Election  Court  cannot entertain or  give any relief on this score. The validity of a final  order published under Section 33 of the U.P. Act is beyond the  ken of  Election Court constituted under Section 61 of the said Act.      Similarly, the  electoral rolls have to be prepared and published under  Section 39 of the U.P. Act. If there is any mistake, objections can be filed within the specified period and corrected  on the basis of the objections filed, if any. A remedy  by way  of appeal  has been  provided to  a person aggrieved by  the inclusion,  deletion or  correction of the name in  the electoral  roll. There  is no  provision in the U.P. Act giving force of law to the electoral roll after its finalisation. However, Section 49 of the U.P. Act contains a bar on  the jurisdiction  of a  civil court  to entertain or adjudicate upon  a question  whether a  person is  or is not entitled to be registered in an electoral roll for a ward or to question the legality of any action taken by or under the authority of  the State  Election Commission  in respect  of preparation and publication of electoral roll or to question the legality of any action taken or of any decision taken by the Returning Officer or by any other person appointed under this Act in connection with an election.      So far  as  the  preparation  of  electoral  rolls  are concerned, elaborate measures have been provided by Sections 39 and  40 ensure proper preparation of the electoral rolls. Electoral   rolls   have   to   be   prepared   subject   to superintendence, direction and control of the State Election Commission. There  is a provision for making application for correction of  the electoral  roll by  an aggrieved  person. There is  also a  provision for  appeal against any order in regard to  inclusion, deletion  or correction of name in the electoral roll.  Therefore, so  far as  preparation  of  the electoral roll is concerned, there are sufficient safeguards in the  Act against any abuse of misuse of power. In view of these provisions  and particularly,  in view  of sub-section (6) of  Section 39  which provides  for appeals in regard to inclusion, deletion  or correction of names, there is hardly any scope for a Court to intervene and correct the electoral rolls under  Article 226  of the  Constitution. In  fact, if this is allowed to be done, every election will indefinitely delayed and  it will  not be  possible to  comply  with  the mandate of  the Constitution  that every  Municipality shall

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have a  life-span of  five  years,  or  less,  if  dissolved earlier, and thereafter fresh elections will have to be held within the  time specified  in clause  (3) of Article 243-U. Having regard  to the  provisions for  filing objections and also the  right of  appeal against  inclusion, deletion  and correction of names and also to the constitutional authority of the Election Commission to give directions in all matters pertaining  to   elections,  the   Court  should   not  have intervened  at  all  on  the  basis  of  allegations  as  to preparation of electoral rolls.      Dealing  with   the  provisions   of  the  Constitution relating to  panchayats contained in Articles 243-A to 243-O (which are  similar to  Articles 243-Q to 243-ZG relating to Municipalities), this  Court in the case of State of U.P. v. Pradhan Sangh  Kshettra Samiti,  AIR 1995  SC 1512  at 1528, held :-      "It is for the Government to decide      in what  manner the panchayat areas      and  the   constituencies  in  each      panchayat area  will be  delimited.      It is not for the Court to indicate      the manner  in which the same would      be done.  So long  as the panchayat      areas  and   conformity  with   the      constitutional    provisions     or      without   committing    a    breach      thereof,    the    Courts    cannot      interfere with the same.           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   questions  of  the      validity of any law relating to the      delimitation of  the constituencies      or the  allotment or  seats to such      constituencies made or purported to      be made under Article 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."      It was also held by the Court that any challenge to the validity  of  the  delimitation  of  constituencies  or  the allotment of  seats to  such constituencies and the election to any  Panchayat should  not be entertained by Court except on the ground that before the delimitation, no objection was invited and  no  hearing  was  given.  It  was,  thereafter, observed as under :      "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  31st      August, 1994."      On behalf  of the  respondents, it  has been  contended that the  Court is  not  entirely  without  jurisdiction  to

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intervene when  it finds that provisions of the Constitution are being  flouted  in  holding  the  election.  In  such  a situation, the Court has jurisdiction and, indeed, a duty to intervene and  set right the election process. Our attention was invited  to the  definition of  ’population’ as given by Article 243-P(g),  according to which ’population’ means the population as  ascertained at  the last  preceding census of which   the    relevant   figures   have   been   published. Constitutional  mandate   is  that   there  shall  be  Wards Committees consisting  of one  or  more  wards,  within  the territorial area  of a  Municipality "having a population of three lakhs  or more"  Therefore the  last published  census figures must be the basis for delimitation of wards. Section 32 of  the U.P. Act provides that the State Government shall by order  divide municipal  areas into  wards in such manner that  the  population  in  each  ward  shall,    so  far  as practicable, be  the same  throughout the municipal area. It must also  determine the  number of  wards  into  which  the municipal areas  are to  be divided, determine the extent of each ward  and also  determine the  number of  seats  to  be reserved for  the Scheduled Classes or the women. There will have to  be an  electoral roll  each  ward  which  shall  be prepared in accordance with the provisions of this Act under the superintendence,  direction and  control  of  the  State Election  Commission   (Section  35).  Section  40  provides revision of  electoral roll  which can  be done  only if the State  Election  Commission  is  of  the  view  that  it  is necessary. In  this case, it is further contended, the State Government has  deviated from  the published  figures of the last  census   for  the   purpose  of  delimitation  of  the constituencies and  the preparation  of electoral  rolls. It made survey  of the  population on its own and the electoral rolls were  drawn up  for various  wards and delimitation of the constituencies (wards) and the allotment of the seats to such constituencies were done not on the basis of the census figures of  1991 but  on the basis of population survey made by the  State which  is not  permissible under  the specific provisions of  the Constitution. In such a situation, it was appropriate  for   the  petitioner   to  invoke   the   writ jurisdiction and  compel the  State authorities  to  act  in accordance with  the mandate  of the  Constitution. In doing this, the  Court was not declaring any law to be invalid but was compelling  the State  to act in accordance with the law and the Constitution.      The case  of the State Government in the court below as well as here is that the election has to be conducted on the basis of  the last  census which was held in the year, 1991. The next  census is  due to  be held  in 2001.  But  in  the meantime, election   to the municipal bodies will have to be held. The  basis for  holding such  elections  is  the  last available census  figures. But  where no  census figures are available, then a survey has to be made by the Government to find out  the correct  figures. For  example, Article  243-T specifically reserves the right of the State Legislature for making provision  for reservation  of  seats  in  favour  of backward classes of citizens. This reservation has been made by the  State Legislature  of U.P.  for  ensuring  that  the backward class  people are  adequately  represented  in  the local  bodies.  Section  7  of  the  U.P.  Act  specifically provides for  reservation of  seats for backward classes and empowers  the  State  Government  that  if  the  figures  of backward classes were not available, their population may be determined by carrying out a survey in the manner prescribed by the rules.      In our  view, the  argument advanced  on behalf  of the

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State must  be upheld.  It is true that Article 243-P(g) has defined population  to mean  "population as relevant figures have been published." The delimitation of constituencies and also preparation  of electoral rolls will have to be done on the basis  of the  figures available  from the  last  census which was  taken in 1991. Reservation of seats for scheduled castes and scheduled tribes is mandatory under Article 243-T of the Constitution. This must also be done on the  basis of the available figures from the census. Clause (6) of Article 243-T of  the Constitution  has made  it permissible for the State  Government   to  reserve  seats  for  other  backward classes. The census of 1991 has not enumerated the number of persons belonging  to backward  classes. Therefore, in order to reserve seats for citizens belonging to backward classes, their number  will have  to be  found  out.  Clause  (6)  of Article 243-T  has impliedly  empowered the State Government to ascertain  the backward  classes and the number of people belonging to  such classes.  Otherwise,  the  provisions  of clause  (6)   of  Article   243-T  will  become  otiose  and meaningless. Merely  because, such  an enumeration of people belonging to  backward classes  was made, does not mean that the figures  enumerated by  the last  census were discarded. The latest  available census figures had to be the basis for delimitation of the constituencies, preparation of electoral rolls and  also  for  reservation  of  seats  for  scheduled castes, scheduled  tribes and  women. But census figures are not available for persons belonging to backward classes. The next census  will be  in the  year 2001.  There is no way to reserve seats for backward classes in the meantime except by making a  survey of  the number of persons belonging to such classes  for   the  purpose   of  giving      them   assured representation in  the municipal bodies. To do this exercise is not to do away with the last available census figures but to find out what was not to be found by the last census. Had such counting  been done  in the  census, then  it would not have been  open to  the State  Government to  embark upon  a survey of  its own.  The State  Government here had only two choices. It  could say that there will be no reservation for people belonging  to backward  classes because,  the  census figures of  such people are not available or it could make a survey and  count the  number of  people  belonging  to  the backward classes and reserve seats for them in the municipal bodies. The   State  Government has taken the latter course. This is  in consonance  with the provisions of clause (6) of Article 243-T.  Therefore, the  survey  made  by  the  State Government for  finding out  the number of persons belonging to backward  classes was  not in  any way  contrary to or in conflict with any of the provisions of the Constitution.      Moreover, the  U.P. Act  of 1959 was amended to make it consistent  with   the  provisions   of  Part  IX-A  of  the Constitution. Population  was defined in Section 2 (53-A) to mean "population as ascertained in the last preceding census of which  the relevant  figures have been published. This is identical to  the  definition  given  in  Article  243-P(g). Section 32  which deals  with the  delimitation, inter alia, provides that  the State Government shall by order determine the number  of seats  to be  reserved for  scheduled castes, scheduled tribes,  backward classes and for women. Section 7 lays down that in every Corporation, seats shall be reserved for scheduled castes, scheduled tribes and backward classes. There is  a second  provision to  Section 7  which lays down that if  the figures  of backward classes are not available, their population  may be determined by carrying out a survey in the  manner prescribed  by the  rules. These   provisions come within the ambit of the phrase "any law relating to the

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delimitation of  the constituencies or allotment of seats to such constituencies."  The validity  of this  law cannot  be challenged because of the protection given by Article 243-ZG of the  Constitution. Therefore,  the question  whether  the survey made by the State Government to ascertain the figures of persons  belonging to  backward classes was lawful or not cannot be raised in any Court.      Lastly, the  Court on  no account  should have directed postponement of  the elections  by the impugned judgment and order dated  13th November, 1995. On 11th October, 1995, the notification for holding the municipal elections was issued. 16th to  20th October,  1995 was the period during which the nomination papers could be filed. 24th October, 1995 was the last date for withdrawal of nomination papers. Voting was to take place between 17th November to 20th November, 1995. The writ petition  was filed  as late  26th October, 1995 on the allegation that  there were  defects in the electoral rolls, delimitation of   constituencies and reservation of seats. A similar writ  petition moved before the Lucknow Bench of the Allahabad High  Court (W.P.  No.  2997  of  1995)  had  been dismissed by  the Court  on 18th  October, 1995.  Barely one week before  the voting was scheduled to commence, the Court decided  to  intervene  in  the  matter  regardless  of  the repeated warnings given by this Court in a number of earlier decisions.  The Court decided to intervene in the matter and stop the  election process while it  was nearing completion. In Lakshmi  Charan’s Case, it was held that the Court should not intervene  even when  the elections were imminent. Here, the election was well underway.      For the  reasons given  hereinabove, we are of the view that the  impugned judgment  was erroneous  and improper. We allow this  appeal. The  judgment under appeal is set aside. As the  elections have  already been  held under the interim order passed  by   this Court,  no further direction in this regard is necessary. There will be no order as to costs.                CIVIL APPEAL NO. 11932 OF 1996        (Arising out of .S.L.P (C) NO. 269290 OF 1995)      Leave granted      In view  of judgment  in Civil Appeal No. 11830 of 1996 (arising out of S.L.P. (C) No.25864 of 1985 the above appeal is dismissed.