- (1.) Leave granted in both the Special Leave Petitions. Civil Appeal No. 1641 of 1997 (arising from Special Leave Petition (C) No. 22702 of 1994) is preferred by the State of Tripura, while the other civil appeal (arising from Special Leave Petition (C) No. 10413 of 1994) is preferred by a voter who was the writ petitioner before the High Court. The main challenge in the writ petition was to the validity of certain rules framed by the State of Tripura under and in pursuance of the Tripura Panchayats Act. 1993. The High Court has struck down sub-rules (3) to (7) of Rule 8-A of the Tripura Panchayats (Preparation of Electrol Rolls) Rules, 1993 (thereinafter referred to as "Panchayat Rules") and proviso (ii) to sub-rule (3) of Rule 3, proviso (ii) to sub-rule (4) of Rule 6 and proviso (ii) to Clause (c) of sub-rule (4) of Rule 8 of the Tripura Panchayats (Delimitation of Constituencies) Rules, 1993 (hereinafter referred to as "Delimitation Rules"). The High Court, however, substained the validity of Rule 3 of the Tripura Panchayats (Constitution of State Panchayat Election Commission) Rules, 1993.
(2.) The Tripura Legislative Assembly enacted the Tripura Panchayats Act, 1993 in the light of and to bring the law relating to panchayats in conformity with the purpose, substance and direction of the Constitution (73rd Amendment) Act, 1993. The Act has created a three-tier system. Gram Panchayats are constituted for Grams (villages), Panchayat Samities at the block level and Zilla Parishads at the district level. The Act provides for the constitution and composition of these bodies besides providing for their powers, duties and functions et al. We may briefly notice the relevant provisions of the Act. Clause (16) of Section 2 defines the expression "First General Election." It means "the First General Election of members held for constitution of Gram Panchayats, Panchayat Samities and Zilla Parishads after commencement of this Act. "The subject matter of the present proceedings is the "First General Election." Clause (32) in Section 2 defines the expression "population" to mean "the population as ascertained at the last preceding census of which the relevant figures have been published." Section 3 provides for the constitution of the Gram. Section 11 provides that for every Gram there shall be constituted a Gram Panchayat. Section 12 provides inter alia that the strength of a Gram Panchayat shall not be less than nine and shall not exceed fifteen. Section 13 provides that each Gram shall be divided into not less than five but not more than fifteen constituencies. Section 14 provides for reservation of seats in every Gram Panchayat in favour of scheduled Castes and Scheduled Tribes. Similar provision is made in respect of Panchayat Samities and Zilla Parishads as well. Section 176 provides for the constitution of the State Panchayat Election Commission. The Commission is vested with the power of superintendence, direction and control of the preparation of the electoral rolls and the conduct of all elections to Panchayat Bodies under the Act and the Rules made thereunder. Section 177 says that "for each constituency, there shall be an electoral roll showing the names of the persons qualified to vote. The electoral roll shall be prepared in accordance with the provisions of this Act and the Rules made there under. "Section 183 provides for preparation, revision and correction of electoral rolls. Section 189 bars the jurisdiction of the Civil Court in respect of matters provided by the Act. Section 213 bars the Court from granting an injunction interfering with the process of election. Section 228 empowers the State Government to make rules for carrying out the purposes of the Act.
(3.) In exercise of the rule-making power conferred by Section 228, the State Government has framed the aforesaid three sets of rules among others. We may first notice the relevant provisions of the Delimitation Rules. Rule 3 provides for determination of number of members for a Gram Panchayat and the number of members of Scheduled Tribes, Scheduled Castes and women in each Panchayat. The number of members of each Panchayat is related to the population of each Gram. For a Gram, the population of which does not exceed three thousand, the number of members is nine (which is the minimum number prescribed by the Act) the for a Gram and population of which exceeds six thousand, the number of members is fifteen (the maximum prescribed by the Act). Sub-rule (3) provides for the reservation of seats in favour of Scheduled tribes and Scheduled Castes whereas sub-rule (4) provides for reservation in favour of women. Having regard to the nature of the controversy involved herein, it would be appropriate to set out sub-rule (3) of Rule 3 in its entirety : "(3) The number of the Scheduled Castes members and the Scheduled Tribes members to be elected from among the members determined under sub-clause (1), which shall bear, as nearly as may be, the same proportion with the number of the members of the Gram panchayat as the Scheduled Castes population or the Scheduled Tribes population, as the case be, bears with the total population in Gram : Provided that - (i) the number of the Scheduled Castes or the Scheduled Tribes or the total population in the Gram shall be determined primarily on the basis of the preceding census of which the relevant figures are published. (ii) when census figures are not available for any area of a Gram, the prescribed authority shall, subject to such order of the State Government as may be made in this behalf, determine the number of the Scheduled Castes or the Scheduled Tribes or the total population on the basis of any other authenticated record maintained by any office or organisation of any department of the State Government or, where no such record is available, on the basis of a local enquiry, which may include house to house enumeration, caused by him for the purposes as aforesaid after consulting where necessary, any portion of the census report, electoral roll of the Tripura Legislative Assembly or any other authenticated record that may be of assistance; (iii) when it is ascertained from the available records that one or more portions of the area of a Gram have, in all such portions taken together, the Scheduled Castes or the Scheduled Tribes population constituting less than one percent of the total population of the Gram, such Scheduled Castes or Scheduled Tribes population figures in respect of such portions shall not be taken into account for the purpose of sub-clause (3); (iv) the Sub-Divisional Magistrate by an order in writing, shall record, before publication of the draft of the order in Form A, the procedure adopted, the records and documents relied upon and the findings made for the purpose of determination of the Scheduled Castes and the Scheduled Tribes members." (Emphasis added);