Jitendra Raj vs State of Chhattisgarh and Others

Dhirendra Mishra, J.—Challenge in these writ petitions is to the constitutional validity of the provision i.e. "provided that the term of consecutive two general elections of Gram Panchayat shall constitute one rotation", contained in Sections 13(4)(ii), 13(6), 17(4), 23 (3) (ii), 23 (5), 25 (2) (b), 30 (3) (ii), 30 (5) and Section 32 (2) (i) (b) of Chhattisgarh Panchayat Raj Adhiniyam, 1993 (in short "the Act of 1993"), inserted vide the Chhattisgarh Panchayat Raj (Amendment) Act, 2008 (No. 13 of 2008), which came into force w.e.f. 23rd May, 2008. The Act of 1993 was enacted to consolidate and amend the law relating to establishment of Panchayats with a view to ensure effective involvement of the Panchayati Raj Institutions in the local administration and development activities. Section 13 deals with constitution of Gram Panchayat, whereas Section 17 deals with election of Sarpanch and Up-Sarpanch and Section 23 provides for division of block into constituencies, and Section 25 deals with election of President and Vice-President of Janpad Panchayat. Section 30 deals with division of District into constituencies and Section 32 deals with election of President and Vice-President of Zila Panchayat. Under the aforesaid sections, the provisions have also been made for reservation for Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) in the Panchayat by rotation to different constituencies by the Collector in the prescribed manner. By the impugned amendment it has been provided that the term of consecutive two general elections of Panchayat shall constitute one rotation.

The petitioners have challenged the above provision on the ground that the Legislature is empowered to make provision for reservation of seats in Panchayats or offices of the Chairpersons in the Panchayats at any level, however, the Constitution does not authorize the Legislature of the State to extend the term of rotation or reservation from five years (one term) to ten years (two terms). Thus, the provision is ultra vires the provisions of Article 243D of the Constitution of India, which empowers the State Legislature to provide for reservation for SC, ST and OBC. However, the reserved seats are to be allotted by rotation to different constituencies in the Panchayat. Article 243K (4) only empowers the State Legislature to make provisions with respect to all matters relating to, or in connection with, election to the Panchayats. However, the Legislature cannot increase or reduce the reservation in Panchayats or the term of rotation of reservation in Panchayats, and therefore, increasing the rotation of term for reservation of two consecutive general elections is ultra vires and unconstitutional.

Shri Sumesh Bajaj, learned Govt. Advocate appearing on behalf of the State, would argue that the Parliament vide 73rd Amendment in the Constitution conferred constitutional status to the local government, including Gram Panchayat, Janpad Panchayat and Zila Panchayat with the sole purpose that the State Legislature cannot do away with these democratic bodies in their respective States and they function for their normal tenure, and Panchayats are constituted regularly by conducting elections without any delay. The State, in exercise of its powers conferred by Chapter-IX of the Constitution as also by Entry 5 of List II of Schedule VII, has enacted the Panchayat Raj Adhiniyam, and as such, was competent to enact the impugned law and effect suitable amendments in its wisdom.

Second proviso to sub-clause (4) of Clause (1) of Article 243D only provides that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level; Article 243E of the Constitution provides for five years duration of Panchayat at all levels, whereas the Parliament has consciously omitted to provide for frequency/duration of rotation.

It is settled law that the constitutional validity of any Act can be challenged only on two grounds: (i) lack of legislative competence, and (ii) violation of any of the fundamental rights guaranteed in Para-III of the Constitution or any other constitutional provisions.

Reliance is placed on the decisions of the Hon''ble Apex Court in the matters of Public Services Tribunal Bar Association Vs. State of U.P. and Another, , Government of Andhra Pradesh and Others Vs. Smt. P. Laxmi Devi, and Hinsa Virodhak Sangh Vs. Mirzapur Moti Kuresh Jamat and Others,

Further relying upon the decision of the Supreme Court in the case of Union of India (UOI) etc. Vs. Rakesh Kumar and Others etc., it was argued that Article 243D is a distinct and independent constitutional basis for reservation in Panchayat Raj Institutions and this cannot be compared to the affirmative action measures enabled by Articles 15(4) and 16(4) of the Constitution. Article 243D(4) specifically provides that offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the SCs, STs and women in such manner as the Legislature of a State may, by law, provide. Therefore, in the absence of any specific provision with respect to frequency of rotation in the Constitution, the State Legislature is competent to decide the term of rotation.

We have heard learned counsel for the parties.

Indisputably, Entry 5 of List II of Schedule VII of the Constitution empowers the State to enact any law relating to constitution of local governments, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self government or village administration. Part IX of the Constitution deals with the Panchayats. Article 243D provides for reservation of seats. Article 243D(1) provides for reservation for SCs and STs in the Panchayats. It further provides for guidelines for determining the number of seats to be reserved in a particular Panchayat and further direct that such seats may be allotted by rotation to different constituencies in a Panchayat. Clauses (4) and (6) of Article 243D are reproduced hereunder:-

(4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide.

(6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens.

Article 243E provides that every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. Article 243K provides for election of Panchayat, which reads as under:

243K. Elections to the Panchayats.-(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.

(2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine:

Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.

(3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1).

(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats.

From bare reading of the aforesaid provisions, it is manifestly clear that the second proviso to Clause (4) of Article 243D only provides that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level. It does not provide for frequency/duration of rotation and it does not restrict that after each term of five years of the Panchayat, the offices reserved under Article 243D are to be rotated, on the contrary, sub-clause (4) provides that the offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved in such manner as Legislature of a State may, by law provide. In addition to that, sub-clause (6) further empowers the State Legislature to make any provision for reservation of seats in any Panchayat at any level in favour of backward class of citizens.

Similarly, sub-clause (4) of Clause 243K empowers the State Legislature to make provision with respect to matters relating to, or in connection with, elections to Panchayats. The duration of Panchayats has been fixed as five years under Article 243E(1) of the Constitution. However, while providing for rotation of reserved seats under Article 243D, the Parliament has consciously refrained from fixing term/duration of rotation. Therefore, in our consideration view the term "rotation" occurring in Article 243D of the Constitution cannot be restricted to one term of the Panchayat, as argued by learned counsel for the petitioners, and the impugned amendment in Sections 13(4)(ii), 13(6), 17(4), 23(3)(ii), 23(5), 25(2)(b), 30(3)(ii), 30(5) and Section 32(2)(i)(b) of Chapter III of the Act of 1993, whereby it has been provided that the term of consecutive two general elections of Gram Panchayat shall constitute one rotation, cannot be held ultra vires Article 243D or any other provisions of the Constitution. The petitions are without any merits, the same deserve to be and are, accordingly, dismissed.

No order as to costs.