- (1.) STATE of Uttar Pradesh has initiated process for holding of elections of Panchayats assigned constitutional recognition under Part -IX introduced by Constitutional 73rd Amendment Act, 1992. Article 243 -B, falling in Part -IX of the Constitution provides for constituting in every State Panchayat at the village level intermediate level and district level. State of U.P. had already enacted U.P. Panchayat Raj Act, 1947 (hereinafter referred to as 'Act of 1947') as well as U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as 'Adhiniyam of 1961'), for the purposes of establishing Panchayats and these enactments came to be amended vide U.P. Act No. 9 of 1994 so as to bring them in conformity with the provisions of Part IX of the Constitution. Rules have also been framed by the State under the Act of 1947 and Adhiniyam of 1961 for the purposes of holding of elections. Delimitation/creation of constituencies, reservation of seats, principle of rotation to be applied etc. have all been provided under the Acts and Rules. Government order from time to time have also been issued for the purposes. For the elections to be held in 2015, a Government order dated 11.8.2015 has been issued modifying the previous Government order dated 9.7.2010 in the matter of reservation of seats. It is at this stage that these bunch of writ petitions came to be filed by different petitioners, challenging the manner and methodology followed by the State in holding of Panchayat elections on the ground that the same are in violation of the constitutional provisions, as well as the provisions of the Acts and Rules so that the very holding of elections is rendered farce. This Court proceeded to entertain these writ petition and the grievances of the petitioners were being examined within the limits of self -imposed restriction to be exercised in matter of elections by a writ Court. Following orders came to be passed by us in leading writ petition No. 53941 of 2015 on 22.9.2015: "Petitioners in this bunch of petitions complain about gross infraction of the applicable provisions of the U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961 and Rules framed thereunder in holding of elections for Zila Panchayat. Violation of constitutional provisions contained in Part -IX are also alleged. Reservation in respect of the seats of Zila Panchayat is provided for under Section 18 -A of the U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961. Reservation under the said section is to be provided for Scheduled Castes, Scheduled Tribes and Backward Classes. The section provides for the mechanics for determination of number of seats to be reserved in each category. After such determination takes place and the number of seats to be reserved for each category is determined under the said section, the issue of allotment of seats and offices for the reserved category comes into picture, and it is at this stage that the Uttar Pradesh Kshetra Panchayat and Zila Panchayat (Reservation and Allotment of Seats and Offices) Rules, 1994, applies. Therefore, it is first to be ascertained as to whether there has been determination of reservation of total seats of Zila Panchayat in accordance with Section 18 -A, and if such reservation has been done, the details thereof must be furnished to the Court. After the said issue is examined, the Court would be required to examine as to whether the allocation of seats for the reserved category has been done in accordance with the Rules of 1994 or not. Since the elections for the Kshetra Panchayats and Zila Panchayats have already been notified, we direct that this bunch of petitions shall continue on day -to -day basis. Standing Counsel is directed to summon all relevant records from the State Government, which may disclose the compliance of Section 18 -A of the Adhiniyam of 1961 in the matter of determination of the number of post to be reserved and also to summon the original records from the office of District Magistrate in the matter of application of Rules 1994, for applying reservation in respect of particular seats in each Districts. Put up tomorrow i.e. on 23.9.2015." Thereafter, following orders were passed on 23.9.2015: "Advocate General, State of Uttar Pradesh Sri V.B. Singh as well as Sri Kamal Singh Yadav, Additional Advocate General, State of Uttar Pradesh and Sri H.S. Mishra, District Panchayat Raj Officer, Azamgarh are present in the Court alongwith original records with regard to the determination of the seats of Zila Panchayat to be reserved with reference to the writ petition filed challenging the said reservation. Praroop -1 has been produced before us, which records the block -wise population of various categories of residents as per the census of 2011 and the percentage of population of various categories with reference to the said census block -wise of district Azamgarh. Praroop -2 has also been produced before us, which reflects the total population, population caste -wise and the percentage block -wise of various categories alongwith notification dated 31.7.2015 issued in exercise of powers under Section 12(5) of the U.P. Determination of Other Backward Classes Rules, 1994, as amended, read with Rule 10(2) published by the District Magistrate, Azamgarh, which reflects the population of Other Backward Classes ward -wise in respect of various Kshetra Panchayat of Zila Panchayat of District -Azamgarh. A chart has also been produced today, signed by the District Panchayat Raj Officer, Azamgarh dated 23.9.2015, which according to him is the determination of number of seats to be reserved for Scheduled Caste, Scheduled Tribes and Other Backward Classes categories for the Zila Panchayat elections of District Azamgarh. These records are taken on record. It has been stated before us that this determination of population of Other Backward Classes category has been done on the basis of survey conducted in terms of the Government Order dated 19th May, 2015, copy whereof has been supplied to the Court today, with specific reference to Clause 5(Gha) of Part -3. We may record that it is stated that there are no other records in the matter of determination of population of Scheduled Caste, Scheduled Tribes and Other Backward Classes and reservation to be applied. Arguments are in progress. Put up tomorrow i.e. 24.9.2015 alongwith connected matters." Certain records were produced before us on 24.9.2015 which got noticed in our order of the day. "The Praroop -I, as produced by the District Panchayat Raj Officer bearing the signatures of the District Magistrate, Azamgarh, records the name of the Gram Panchayats, number of persons belonging to Scheduled Caste, Scheduled Tribe, Other Backward Class categories and General Category in each Gram Panchayat with reference to the Census of 2011. In the last column is mentioned the total population. It has been stated before this Court by Shri Kamal Singh Yadav, Additional Advocate General on the instruction from District Panchayat Raj Officer, D.P. Yadav that in the census of 2011, which was published in the official gazette, there was no identification of Other Backward Class category persons. This Court, therefore, enquired as to how the number of persons belonging to Other Backward Class category with reference to Census of 2011 have been depicted in Praroop -I, he stated that the figure of Other Backward Class category persons depicted therein is not with reference to Census of 2011 but based on rapid survey done. This Court again enquired from the Additional Advocate General, as to which part of Praroop -I, such a fact flows, no answer could be given. It may be noticed that Praroop -I contains the signatures of the Chief Development Officer and the District Panchayat Raj Officer on the last page and bears the date 30.7.2015 and dated 31.7.2015 respectively. After the matter was heard at some length, following issues arise for consideration: "how can the elections for Zila Panchayat be held without the first level of three tier panchayat elections, namely, village panchayat elections being first held and then the intermediatory level elections of kshetra panchayat." The State has decided to postpone the village panchayat elections because it has not been able to determine the reservation to be applied against the panchayat seats. We may record that Zila panchayat is to comprise of pramukh, up -pramukh and members of kshetra panchayat as well as other members who are to be elected from the territories to be carved out from Panchayat Area. Similarly, Kshetra Panchayat is to comprise of Gram Pradhans and other persons, who are to be elected directly from the constituency carved out from the Panchayat Area. Panchayat Area has been provided under Section 11 -F of the Uttar Pradesh Panchayat Raj Act, 1947 and under the proviso to Section 11 -F it provides that revenue village or any hamlet shall not be divided, while determining the Panchayat Area. Census of 2011 necessarily contains the details of population, revenue village wise population of Scheduled Caste and Scheduled Tribes as well as other category of persons, which will include the General Category and Other Backward Class category. Therefore, we are of the prima facie opinion that it does have the figures of Scheduled Castes, Scheduled Tribes population residing in the constituencies, which have been constituted for Zila Panchayat, as it is to comprise of various village panchayats. We direct the State to explain to the Court as to how figures of Other Backward Class Category persons have been collected. All material in that regard shall be produced before this Court. If it has been done on door to door survey then the relevant details which may reflect such door to door survey shall be produced before this Court. The District Panchayat Raj Officer shall file his personal affidavit in that regard and disclose the names of persons, who have conducted the door to door survey and during which period. If only sample survey had taken place on random basis then the material collected during such random survey shall be produced before this Court. The aforesaid issues have only been recorded so that the State is aware of what is to be examined by the Court. The learned Standing Counsel is permitted obtain original records produced before this Court for making of photo copies of such records. The records of other relevant districts may also be summoned. The District Panchayat Raj Officer shall also explain the figures which have been depicted in the documents, which have been produced before us on the next date by means of an affidavit including the figures of the total population, population of Other Backward Class Category, Scheduled Caste Category, Scheduled Tribes Category and General Category alongwith the basis for the figures being so recorded. The arguments are in progress. Put up this matter on Monday i.e. 28th September, 2015."
(2.) IT was during the continuation of hearing of the writ petitions that an objection was raised by the State that identical writ petitions filed before this Court have been dismissed. Reliance have been placed upon the judgments of a Coordinate Bench in the case of Rishipal Singh v. State of U.P. and others: Public Interest Litigation No. 54008 of 2015, as well as in Rajesh Kumar Singh v. State of U.P. and others: Public Interest Litigation No. 51785 of 2015. Order dated 24.9.2015 passed in the case of Rishipal Singh (supra) is reproduced: "The relief which has been sought in these proceedings which have been instituted as a public interest litigation is as follows: "A. Issue a writ order or direction in the nature of mandamus directing the Respondent Authorities to cancel the reservation of the seat of Ward No. 18 of Zila Panchayat, Meerut to the other backward class (OBC) category and instead of it the said seat may be declared as Unreserved (UR) in the coming Zila Panchayat Elections." On 21 September 2015, the State Election Commission has issued a notification for elections to the Zila Panchayats. In view of the constitutional bar contained in 'the Constitution, it would not be appropriate or proper for the Court to entertain the petition once the electoral process has been initiated. Hence, we decline to exercise our writ jurisdiction under Article 226 of the Constitution on that ground. The petition is, accordingly, dismissed. There shall be no order as to costs." Having noticed orders passed by the coordinate bench, following orders were passed by us yesterday i.e. on 28.9.2015; "In view of order dated 24.9.2015 passed by the Division Bench of this Court in the case in Public Interest Litigation No. 54008 of 2015, Rishipal Singh and another v. State of U.P. and another, Sri Kamal Singh, learned Additional Advocate General submits that the writ petitions, which are being heard by this Court, are liable to be dismissed in view of the constitutional bar contained in Article 243 -O of the Constitution. Sri Shashi Nandan, learned counsel for the petitioner has submitted that constitutional remedies as are provided under Article 226 of the Constitution of India is a basic feature of the Constitution which cannot be taken away. It is contended that the High Court under Article 226 of the Constitution of India can examine the legality of statutory provisions in case they are in violation of the constitutional provisions, including the provision contained under Article 14 of the Constitution of India. It is submitted that the Hon'ble Supreme Court has already held that even laws put under the 9th Schedule are amenable to exercise of writ jurisdiction. The provisions of the Uttar Pradesh Zila Panchayat Kshetra Panchayat Adhiniyam, 1961 therein cannot be elevated to any higher position than an Act put in the 9th Schedule. In our opinion, the matter does need examination. Therefore, the matter may come up tomorrow i.e. 29.9.2015 for determination of the question raised above. The personal appearance of the District Panchayati Raj Officer, Azamgarh is exempted. The relevant records may be produced before this Court as and when direction is so issued." In light of the objection raised by Sri Kamal Singh Yadav, learned Additional Advocate General appearing for the State, with reference to the order of the Division Bench dated 24.9.2015, we have heard counsel for the parties and in view of the discussions noticed hereinafter, we are not entirely in agreement with the view taken by the Coordinate Bench.
(3.) THE Division Bench in its order dated 24.9.2015 has taken note of the fact that the notification for holding of elections of Zila Panchayat have been issued by the State on 21.9.2015, and therefore, the constitutional bar under Article 243 -O of the Constitution of India in entertaining of writ petitions got attracted.;