AMITAVA LALA,J. - (1.) PETITIONER is a sitting M.L.A. of State Assembly constituency Rath, district Hamirpur, Uttar Pradesh. He has filed this writ petition on 7th March, 2007 praying inter alia; "I. A writ, order or direction in the nature of certiorari quashing the relevant part of the order dated 18.12.2006 (annexure no. 10) to the extent it reserves the 229 Rath assembly constituency situated in district Hamirpur for Scheduled Castes, passed by respondent no. 2 under section 9 (2) (d) and published in the Gazette of India and Gazette of Uttar Pradesh under section 10 (I) of the Delimitation Act, 2002. II.A writ, order or direction in the nature of mandamus commanding the respondents not to reserve the 229 Rath assembly constituency situated in district Hamirpur (U.P.) for Scheduled Castes and let it be a general constituency. III. Any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. IV.Award cost of the petition to the petitioner." Pursuant to earlier directions of the Court, parties exchanged their affidavits and matter was placed for hearing before this Bench. Mr. Ravi Kiran Jain, learned senior counsel appearing for the petitioner made submissions before this Court as against the preliminary point of maintainability of writ petition raised by the respondents and also on merits.
(2.) ACCORDING to the petitioner, by recent delimitation of constituencies, the State Assembly constituency of Rath has been declared as reserved constituency for Scheduled Caste candidates which will affect petitioner's right to contest elections from such constituency being general candidate in the forthcoming general elections of the Assembly, therefore, writ lies as against such action on the part of Union of Indian and/or State, responsible for the cause. According to Mr. Jain, there is an apparent error in the order of delimitation. The population of Scheduled Castes in State Assembly constituency Rath (district Hamirpur) is 24.40 % whereas in State Assembly constituency Charkhari (district Mahoba) is 27.17 % and in State Sssembly constituency Manikpur (district Chitrakoot) is 35.16 %, but for unknown reasons, neither the State Assembly constituency Charkahari nor Manikpur has been declared as reserved constituency, when State Assembly constituency Rath has been declared as reserved constituency for the Scheduled Caste candidates, therefore, the petitioner is entitled to raise his voice by means of writ petition under Article 226 of the Constitution of India. Mr. Jain has further contended before this Court that under Article 329 (a) of the Constitution of India there is a bar about interference of the Courts in the electoral matters. It speaks that the validity of any law relating to the delimitation of constituencies or the allotments 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. According to Mr. Jain, this embargo cannot be applicable in the case of reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States under Article 332 of the Constitution of India. Therefore, Article 226 of the Constitution of India being extra ordinary power of the High Courts in connection with issuance of high prerogative writs, cannot be curtailed. The petitioner has made representation on 27th December, 2006 which deserves at least consideration by the appropriate authority in this respect, particularly when there is apparent error on the part of the Election Commission in reserving such seat for the Scheduled Caste candidates. He has drawn our attention to Section 9 (1) ( c) of Delimitation Act, 2002 (for short the Act) which is a law enacted by Parliament and promulgated on 3rd June, 2002. Such part of the provision says that the constituencies in which seats are reserved for the Scheduled Castes shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total is comparatively large.
(3.) MR . Bhupendra Nath Singh, learned counsel appeared on behalf of the Election Commission and the Delimitation Commission, the respondents no. 1 and 2 and Mr. Awdhesh Narain Shukla, learned Standing Counsel appeared on behalf of the respondents No. 3 to 6. Mr. Singh has referred paragraphs 15 to 17 of the counter affidavit which are quoted hereunder: "15. That the entitlement of seats for Scheduled Tribes/Scheduled Castes is on the basis of arithmetic calculation and neither the Constitution nor the Delimitation Act 2002 permits the Commission to make any deviation from the principle of entitlement of seats on the basis of the published population figures of census 2001. Further, Articles 82 and 170 of the Constitution make it mandatory on the part of the Delimitation Commission to complete its exercise only on the basis of the published census figures. 16. That under Section 9(1)( c) of the said act, the constituencies for SCs are to be distributed in different parts of the state and seats are to be reserved for SCs in those constituencies where the percentage of their population to the total population is comparatively large. Therefore, while working out the allocation of total number of seats for each district, the number of seats to be reserved for SCs in those Districts is also worked out separately. Subsequently, SC seats are reserved in those constituencies in the district in which, so far as practicable, the percentage of their population to the total population is the largest, in descending order equal to the number of SC seats in the District concerned. 17. That as stated above the constituencies in which seats are to be reserved for the Scheduled Castes are required, under Section 9(1)( c) of the Delimitation Act, 2002, to be distributed in different parts of the state and located, as far as practicable, in those areas where the proportion of their population to the total is comparatively larege. In order to comply with this mandate of the Parliament, the total number of constituencies to be reserved for the SCs on the basis of their determined seats are allocated to different districts in the state as the delimitation is normally done by taking District as the administrative unit having regard to the provisions of section 9(1)(a) of the said Act." He placed reliance upon a Constitution Bench judgment reported in AIR 1967 SC 669, Meghraj Kothari vs. Delimitation Commission and others to establish before this Court that when the delimitation has already taken effect, the orders have attained the force of law and could not be called in question in any Court. He further submitted that the guidelines and the methodology issued by the Delimitation Commission is already annexed to the writ petition and heading no. III (Population), sub-heading (iv) is applicable, which is as follows: "(iv) The Delimitation Commission has, however, taken an internal decision that a constituencies cannot be delimited having exactly equal population in all cases, a deviation to the extent of 10 percent plus or minus from the State/district average would be acceptable to the Commission, if the geographical features, means of communication, public convenience, contiguity of the areas and necessity to avoid breaking of administrative units so demand." ;