MUKUL MUDGAL, J. -
(1.) This writ petition challenges the constitutional validity of the notification dated 20th September, 2006 issued by the Respondent No.2, the Delimitation Commission of India, in respect of the exercise of delimitation carried out by it, as being ultra vires, unconstitutional, illegal, null and void for being carried without the jurisdiction and contrary to the provisions of the Government of National Capital Territory Act, 1991 (hereinafter referred to as the "NCT Act").
(2.) The brief facts of this case as per the case set up by the petitioner are as follows:
a) The NCT Act was passed in the year 1991 which empowered the Election Commission to carry out the exercise of delimitation and to pass Delimitation orders under Section 38 and Section 39 of the NCT Act. Sections 38 and 39 of the NCT Act read as follows:
"38. Election Commission to delimit constituencies- (1) The Election Commission shall, in the manner herein provided, distribute the seats assigned to the Legislative Assembly under Section 3 to single member territorial constituencies and delimit them having regard to the following provisions, namely:-
(a) All constituencies shall, as far as practicable, be limited in such a manner that the ratio between the population of each of such constituencies and the total population of the Capital is the same; and
(b) Constituencies in which seats are received for the Scheduled Castes shall, as far as practicable, be located in areas where the proportion of their population to the total population is comparatively large.
(2) The Election Commission shall- (a) Publish its proposals for the delimitation of constituencies in the Official Gazette and also in such other manner as the Commission may consider fit, together with a notice inviting objections and suggestions in relation to the proposals and specifying a date on or after which the proposals will be further considered by it;
(b) Consider all objections and suggestions which may have been received by it before the date specified;
(c) After considering all objections and suggestions which may have been received by it before the date so specified, determine by one or more orders the delimitation of constituencies and cause such order or orders to be published in the Official Gazette; and upon such publication, the order shall have the full force of law and shall not be called in question in any court.
39. Power of Election Commission to maintain delimitation orders up-to-date.- The Election Commission may, from time to time, by notification in the Official Gazette,-
(a) correct any printing mistakes in any order made under Section 38 or any error arising therein from inadvertent slip or omission; and
(b) where the boundaries or name of any territorial division mentioned in any such order are or is altered, make such amendments as appear to it to be necessary or expedient for bringing such order up-to-date."
b) On 4th June 2002, the Delimitation Act was passed for the purposes of carrying out the delimitation of Parliament and Assembly Constituencies in respect of all the States and Union Territories of India.
c) On 13th July 2002, the Delimitation Commission issued a letter by which the entire NCT was treated as one district for the purposes of delimitation.
d) On 23rd July 2004, the Divisional Commissioner of Delhi informed the Delimitation Commission that the NCT of Delhi is not one district as was stated by the Delimitation Commission by its letter dated 13th July 2002 and it was informed that the Ministry of Home Affairs by a letter dated 13th September 1996 had conveyed the approval of nine districts in Delhi, co- terminus with the nine police districts.
e) On 27th February, 2006 a notification was published in the Nav Bharat Times (Hindi), the Times of India and the Delhi Gazette extraordinary by which a proposal was made for inviting objections/suggestions by the respondent with respect to the Delimitation process. In addition to Hindi and English, the said proposal was not published in Urdu and Punjabi, which are the second official languages of Delhi as per the Delhi Official Language Act, 2000 and it fixed an unreasonably short time period of two weeks to file the objections. In addition, the Matia Mahal Constituency which has a 65% Muslim population required that the proposal ought to have been published in Urdu.
f) On 9th February 2006, a representation was made to the respondent stating that the ward no. 110 be retained in the Matia Mahal Constituency. On 10th February 2006 the petitioner wrote a letter to the respondent in which it was specifically pointed out that the ward no. 110 should not be transferred from The Matia Mahal Constituency to Chandni Chowk and a request was also made to retain EB 1 to 83 in The Matia Mahal constituency.
g) On 21st February 2006, the petitioner participated in a public meeting held by the Delimitation Commission and agreed to its proposal to not to shift the Ward No. 110 to the Chandni Chowk Constituency. But, the minutes of the meeting showed that the ward no. 110 was shifted to Chandni Chowk.
(3.) The learned senior counsel for the petitioner, Shri R.K. Anand submitted as follows:
a) Section 11 of the Delimitation Act 2002 (hereinafter referred to as the Delimitation Act) empowers the Election Commission to keep the delimitation orders up to date. Section 11 of the Delimitation Act reads as follows: "Section 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 Commission under section 9 or any error arising therein from an inadvertent slip or omission; and
(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.
(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." Thus, it was the intention of the legislature that at the time of enactment of the Delimitation Act that the delimitation exercise was to be done only by the delimitation commission after each census after which it had no role to play and it was the Election Commission which was empowered by the Parliament to keep the delimitation orders upto date.
b) Article 239 AA of the Constitution, which was inserted in the Constitution by the 69th Amendment Act 1991 with effect from 1st February 1992, which provides for a special provision with respect to Delhi. Article 239-AA (2)
(b) reads as follows: "239AA. Special provisions with respect to Delhi (2)(b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament." The NCT Act was passed by the Parliament to give effect to Article 239-AA of the Constitution and came into force on 1st February 1992, which provides for a special provision with respect to Delhi. Article 239-AA (2) (b) reads as follows:
"239 AA. Special provisions with respect to Delhi (2) (b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament." The NCT Act was passed by the Parliament to give effect to Article 239-AA of the Constitution and came into force on 1st Feburary. Article 239-AA (2) (b) states that the total number of seats in the Legislative assembly shall be regulated by the law made by the Parliament. Accordingly, the Parliament under Section 3 (1) of the NCT Act fixed the total number of seats in the NCT of Delhi at 70. Sections 38 and 39 of the NCT Act provides for the continuous power of the election Commission to keep its delimitation orders up-to-date. In the year 2002, the Delimitation Act, 2002 came into force which provided for the delimitation by the Delimitation Commission on the basis of the census of the year 1999. It is pertinent to note that the Delimitation Act, 2002 did not supersede or repeal the provisions of the NCT Act. Thus, the Parliament could not have created two parallel authorities, i.e. the Election Commission and the Delimitation Commission for carrying the exercise of delimitation in the NCT of Delhi on the basis of the same census figures of the year 1999. Thus, Articles 170 (3), 239-AA (2) (b) and 327 of the Constitution of India, Section 3, 38 and 39 of the NCT Act and Section 11 of the Delimitation Act make it clear that the Parliament by conscious decision has specifically granted the continuous power to carry delimitation and to keep delimiation orders up-to-date in the NCT of Delhi to the election Commission. Further, by an amendment in the year 2005 in the NCT Act, the Parliament has continued to grant the power to carry out delimitation exercise in the NCT of Delhi on the basis of 2001 census to the Election Commission.
(c) The NCT Act and the Delimitation Act, 2002 are not repugnant to each other because of the following reasons: (i) Section 8 of the Delimitation Act, 2002 provides only for readjustment of the number of seats which has been specifically dealt with under Section 3 (1) of the NCT Act which had fixed the number of seat for the Legislative Assembly as 70 as per the mandate of Article 239-AA (2) (b) of the Constitution of India. Therefore, Section 9 of the Delimitation Act, 2002 has no application to the NCT of Delhi.
(ii) A comparison of the objects and reasons of the Delimitation Act 1972 and the Delimitation Act 2002 proves that whereas the former was made specifically applicable to Delhi, the latter was not made applicable to the NCT of Delhi.
(iii) The NCT Act was enacted by the Parliament under Article 239-AA of the Constitution of India whereas the Delimitation Act, 2002 was enacted under Articles 82, 170 and 327 of the Constitution of India.
(d) The power of the Election Commission under the NCT Act is continuous and not for the first constitution of the Assembly as per para 3 of the Statement of objects and reasons of the NCT Act. Para 3 of the Statement of objects and reasons of the NCT Act reads as follows:
"Under the Bill the delimitation of constituencies will be made by the Election Commission in accordance with the procedure set out therein. Having regard to the special conditions prevailing in Delhi, it has been provided that in respect of the first constitution of the Assembly, such delimitation will be on the basis of provisional figures of population in relation to 1991 census, if final figures have not been published by then." The word 'first constitution of the Assembly' is used with respect to the provisional figures of the census of the year 1991 as the basis for the delimitation exercise to be carried out in the Government of NCT of Delhi. The 1991 Census figures were not available at the time when the NCT Act came into force, i.e., 1st February, 1992. It is pertinent to note that prior to coming into force of the NCT Act, the Delimitation Act, 1972 which was in force continued to provide for the delimitation on the basis of 1971 Census. It was in this background that the word 'first constitution of the Assembly' was mentioned in para 3 of the Statement of objects and reasons.
(e) Further, Sections 38 and 39 of the NCT Act empower the Election Commission to carry out the exercise of the delimitation regularly in future. The Parliament by Act 2005 amended and the added first proviso in Section 3 of the NCT Act, whereby it was stated that the reference ....to the last preceding census of which the relevant figures have been published shall ... be construed as a reference to the 2001 Census. Had the intention of the Legislature been to grant the power to the Election Commission only for the first constitution of the Legislative Assembly for the NCT of Delhi, there would have been no need to amend the NCT Act in 2005.
(f) The amendment to the NCT Act in the year 2005 also shows that the Parliament while amending the NCT Act was aware of the Delimitation Act, 2002. No provision of the NCT Act giving power to the Election Commission to carry out the delimitation exercise has been repealed either by the Delimitation Act or its subsequent amendment in the year 2005.
(g) The submission of the learned counsel for the respondents that the proviso to Section 3 of the NCT Act been inserted by Act 5 of 2006, thus, giving powers to the Delimitation Commission under the NCT Act, cannot be countenanced as the second proviso states that role of the Delimitation Commission is only with respect to 'readjustment' and not 'delimitation'.
(h) Article 329 of the Constitution of India provides for bar in respect of election matters. Article 329 of the Constitution of India reads as follows:
"329. 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 327 or article 328, shall not be called in question in any court;
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature." Article 329 is not applicable in the facts and circumstances of the present case since the Delimitation Commission was never authorized by any law to carry the delimitation exercise in the NCT of Delhi. Further, the bar under Article 329 presupposes that the exercise of power has been carried by an authority under proper authorization and in a legal manner, whereas the said delimitation exercise has been carried out by the Delimitation Commission not under any authority of law but under a mistaken authorization. The power of the High Court under Article 226 of the Constitution of India are wide enough and the bar under Article 329 would not prevent the Court from exercising its jurisdiction under Article 226 of the Constitution of India to correct/quash the illegalities committed by the authorities. In Venkatachalam vs. A. Swamickan, (1999) 4 SCC 526 the Hon'ble Supreme Court approved the exercise of power by the High Court under Article 226 in a matter challenging an election in spite of the constitutional bar Article 329 (b).
(i) The NCT Act enacted under Article 239-AA of the Constitution of India is a special law since the heading of Article of 239-AA clearly mentions 'Special Provisions with respect to Delhi' as stated earlier no repugnancy between the NCT Act and the Delimitation Act, 2002. Assuming that there is a repugnancy between the two Acts, the provisions of the NCT Act being special law would prevail over the Delimitation Act. Further, the fact that the Parliament amended both the Acts without repealing or superceding the provisions of NCT Act where the power to carry out the delimitation exercise in the NCT of Delhi was given to the Election Commission. The Parliament while amending both the Acts was aware that there exists no repugnancy and both the Acts operate in different fields.;