Ratanlal Nath vs The State of Tripura and Others

D.N. Baruah, J.—In this application under Article 226 of the Constitution of India the Petitioner has challenged the vires of Rule 3 of the Tripura Pahchayats (Constitution of State Panchayat Election Commission) Rules, 1993, for short, "the Panchayat Election Rules, 1993" and Rules 3, 6 and 8 of the Tripura Panchayats (Delimitation of Constituencies) Rules 1993 and Rule 8A of the Tripura Panchayats (Preparation of Electoral Rolls (Amendment) Rules, 1993, for short Amendment Rules and prayed for a declaration that those Rules are unconstitutional and void. He has also prayed for appropriate writ in the nature of Certiorari relating to notification issued in Annexures-A and B series and other notifications namely, Annexure-G, J and I and has also prayed for a writ in the nature of Mandamus or prohibition, prohibiting the Respondents to continue the further process in connection with the finalisation of Electoral Roll of Gram panchayats, panchayat samities and Zilla Parishads on the basis of Annexures-A and B series and also other notifications namely Annexures-G, I and J series and has for other appropriate writs.

The facts for the Purpose of this Civil Rule as stated briefly are as follows:

The Petitioner is voter and Member of Tripura Legislative Assembly from No. 2. Mohanpur Constituency West Tripura District. He is also General Secretary of Tripura pradesh Congress (I) Committee. The subject-matter of this writ petition, inter alia is against the process of preparation of electoral rolls and delimitation of constituencies for the purpose of ensuing Panchayat Elections in. Tripura. The Tripura legislative Assembly enacted Tripura Panchayat Act, 1993, for short "the said Act", making provisions for holding Panchayat elections. The Governor of Tripura in exercise of power conferred under the said Act made various Rules.

On 29.12.93 the 1st Respondent in exercise power u/s 3 of the said Act issued Annexure-A series notifications notifying the grams, delimitations and geographical extent of the grams. According to the Petitioner, said notifications have been issued in colourable exercise of powers vested in Section 3 of the said Act. Besides, the notifications have been issued in violation of the provisions of Section 3 of the said Act re-organising the existing 872 numbers of revenue villages. Because of such re-organisation common people residing at the village level may not be able to understand as to in which gram each of them resides. Similarly, in the same year the Government of Tripura framed a set of Rules known as Tripura Panchayat (Delimitation of Constituencies) Rules, 1993, for short, "the Delimitation Rules, 1993. The said set of rules were published in the Tripura Gazette on 15thof December, 1993.

On 12th January 1994, the District Magistrate West Tripura, Agartala issued Annexure-b series notifications determining the total number of members to be elected according to the percentage of population fixed at 3 for the Scheduled Tribes and 8 for Scheduled Castes, Besides the district Magistrate directed that one-third of the total seats including these belonging to the scheduled Tribes and Scheduled Castes were to be kept reserved for women and those total number of seats reserved for women voters were 12. The said figure was arrived at on the basis of statement of population as maintained in the offices of the Block Development Officers with a break up of Scheduled Tribes and Scheduled Castes which were said to be received by the District Magistrate from the respective Block Development Officers. By yet another notification dated 12.1.94 he issued a notice seeking to determine the area of Zilla Parishad mentioned therein dividing the number of constituencies number of seats to be allotted, the seat or seats to be reserved for Scheduled Tribes Scheduled Castes and women. The aforesaid draft notification was published for general information. On the said date the District Magistrate, West Tripura, issued also another notification (Annexure-C) in exercise of powers conferred under Sections 123 and 124 of the said Act read with Rule 8(3)(4) of. The Delimitation Rules 1993 by the said notification the District magistrate deter that the area of zilla parishad mentioned in Column No. 1 of the said notification should be divided into number of constituencies as show in Column No. 2 of the notification and each of such constituencies the area to be included, the number of seats to be allotted, the seat or seats to be reserved for Scheduled. Tribes Scheduled Sastes or women have also been mentioned in Column 3. These notifications are copies of notifications issued by District Magistrate, west Tripura and similar notification had been issued by other District Magistrates of Tripura. The Sub-Divisional Magistrate Sadar West Tripura also issued a draft Annexure-D notification dated 12.1.94 for general/information u/s 71 of the said Act read with Rule 6(1) of the Delimitation Rules, 1993, By the said notification the Sub-Divisional Magistrate sought to determine for each of the Panchayat Samities specified therein the total number of members to be elected to the panchayat Samiti showing the number of seats reserved for Scheduled Castes. Scheduled Tribes and women, On the same day the Sub-Divisional Magistrate issued similar two draft notifications (1) u/s 71 and 72 of the said Act, 1993 read with Rule 6(2) of the Delimitation Rules, 1993 and (2) u/s 12 and 13 of the said Act read with Rule 3 of the said Rules. Annexure-D series are copies of the notifications issued by the Sub-Divisional Magistrate, West Tripura. Similar notifications had been issued by other Sub Divisional Magistrates In other Sub Divisions.

Rules 3, 6 and 8 of the Delimitation Rules, 1993 contain provisions for determination of the number of members for a Gram Panchayat, Panchayat Samiti and zilla parishad and number of members of the Scheduled Tribes Scheduled castes and women to be elected to Gram Panchayat, Panchayat Samiti and Zilla Parishad. The said determination in terms of the said Rules is to be done on the basis of total population in a Gram panchayat or zilla. In terms of the said Rules, the total population in a Gram or Panchayat or zilla should be determined primarily on the basis of preceding census of which relevant figures are published and when censes figures are not available, for any area of Gram Panchayat or Zilla the prescribed authority shall subject such order of the State Government, as may be made in this behalf, determine the number of the Scheduled Caste or Scheduled Tribe of the total population on the basis of any other authenticated record maintained by any office or organisation of any department of the state Government and when no such record is available, on the basis of local enquiry which may include house to house enumeration Reles 3, 6 and 8 of the said Delimitation Rules, 1993, according to the Petitioner are contrary to and inconsistent with Article 243(e) of the constitution of India. The said Article provides exhaustive definition of the expression ''population'' for the purpose of part IX of the Constitution relating to the Panchayats and as per the said Article the last published censes figures can from the basis of population for the purpose of all matters relating to panchayats. The Rules shall have to be in conformity with Part IX of the Constitution. But the said Rule permits reliance on materials other than censes figures for the purpose of determination of population which is contrary to Article 243(e) of the Constitution. The said Rules also permit the use of other materials for the purpose of determination of population when censes figures are not available, Census figures in respect of Gram, Panchayat Samiti and zilla Parishad of Tripura had been published long before the said Act was enacted, According to the Petitioner, the State Government acted on the basis of statements of population received from the Block Development Officers claimed to be maintained by them. Taking into consideration all the factors, acceptance of the said sources of short one word information regarding population is not permissible under the said Rules in view of availability of the latest census figures. The said Rules 1993 further provide alternative source for determining population in a Gram Panchayat Samiti or Zilla Parishad on the basis of local enquiry which may include house to house enumeration conducted by the prescribed authority. As no such enumeration was conducted or undertaken in the present case, Annexure-D series notifications are bad in law and nonest. As per said Annexure-D series notifications Respondents have not included all the grams that are in existence deliberately with oblique motive to deny the constitutional rights of the citizens who are residents of said grams to exercise their right of franchise, The said Annexure-D series notifications are also violative of Rules 5, 7 and 9 of the said Delimitation Rules, 1993, inasmuch as, the manner of publication of the notification as specified in the Rules has not been followed.

The Petitioner has further stated that the State Government did not act In conformity with Rule 4 of the, Tripura Panchayats (Preparation of Electoral Rolls) Rules 1993, which prescribes that State panchayat Commission shall have the superintendence, direction, and control for preparation pr revision and correction of electoral roll. In Annexure-A, series notifications grams have not been described. The particulars of grams with reference to the boundaries along, with maps have not been furnished. Similar particulars are also not shown in respect of grams constituting new constituencies as per Annexure-B series. Presence of full particulars of each gram is necessary for voter pr voters either to raise objection or to make any suggestion to the concerned authority as required, if there is any vagueness the, voters right will be denied.

The Petitioner has further stated that

(a) the Government and its Officers are now seeking to hold election to the Gram Panchayat, Panchayat Samities and Zilla Parishads on the basis of electoral rolls published and followed in the last General Election to the Tripura State Assembly. After the Assembly election there had been a revision of voters'' list and the draft list was published in the State of Tripura on 20.12.93. Several complaints were received by the Election Commission of India regarding the said voters'' list and the Chief Election Commissioner of India passed an order dated 28.12.93 holding that instructions of the Commission to follow the special enumeration procedure in the areas having substantial presence of foreign national had not been properly implemented in the State of Tripura. Accordingly, the Commission directed that the draft electoral rolls published in the State of Tripura on the 28th December, 1993 should be treated as cancelled. The Chief Election Commissioner by Annexure-N order dated 28.12.93 directed the State Government of Tripura to take up the matter de novo for intensive revision of the electoral rolls in all 60 Assembly Constituencies. The draft electoral rolls published on 28.12.93 are verbatim reproduction of the electoral rolls of the last election of Tripura State Assembly which were already cancelled by the Chief Election Commissioner as stated above. No election can be held on the basis of the said rolls;

(b) the Government of Tripura framed a set of Rules known as Tripura Panchayats (Preparation of Electoral Rolls) Rules; 1993, for short "Preparation of Electoral Rolls Rules, 1993". The said Rules provide the various steps for preparation of electoral rolls. The State Government, however, amended the said Rules by notification dated 20.12.93. In the said amended Rules, Rule 8A was added after Rule 8 in Part II of the main Rules. This Rule 8A inter alla, provides for adoption of electoral rolls for Assembly Constituencies Rule 8A so far it provides for adoption of electoral rolls for Assembly Constituencies is contrary to the provisions of the said Act, 1993 and in particular Sections 176, 177 and 183 which prescribe detailed procedure for preparation of electoral rolls and not mere adoption. Preparation and adoption are two widely different concepts;

(c) the electoral rolls for the Assembly Election held in 1993 were published on 4th of January, 1993 and the said rolls were prepared with the 1st of January, 1993 as the qualifying date. After holding of election there was revision of voters list and the draft revised voter''s list was published on 20.12.93 which was later on cancelled by the Election Commission as stated above, According to the Petitioner, Panchayat election cannot be held on the basis of electoral rolls for Assembly constituencies inasmuch as the same would amount to acting on inaccurate voters'' list. Besides, the electoral roll for Assembly constituencies of Tripura cannot be said to be electoral roll in force as contemplated under Rule 8A introduced by the amendment Rules, 1993, because the voters'' list was inaccurate and the said voters'' list cannot be said to be in force on the qualifying date on the basis of which last electoral roll was prepared and election was conducted. Inspite of that the Respondents are proceeding to finanlise the voters'' list. According to the Petitioner, this action of the Respondent Nos. 1 to 3 are mala side These illegal and mala fide actions have jeopardized the interest of the Petitioner and he members of his party;

(d) in 1992 the Parliament made 73rd amendment of the Constitution regarding the local authorities, The Tripura Panchayat Act, 1993 was enacted in pursuance of the said amendment. The object and reasons of the said Act, 1993 were to replace the earlier statute relating to Panchayats to bring it in conformity with the purpose, substance and direction of the 73rd amendment of the Constitution.

By Annexure-J notification, the Commissioner to the Government of Tripura, Panchayat Department, by order of the Governor appointed Shri J.P. Gupta I.A.S. State Election Commissioner of the State Panchayat Election Commission, Tripura. Shri Gupta so appointed as per the said notification would hold office for a period not exceeding 6 months from the date of his assumption of charge. The other terms and conditions of the office of the State Election Commissioner would be governed by the provisions of Tripura Panchayats (Constitution of State Panchayat Election Commission) Rules, 1993. By another notification of the same date. the Governor of Tripura was pleased to constitute a State Panchayat Election Commission for superintendence, direction, control and preparation of electoral rolls and for conduct of election to the Panchayat bodies in the State, This notification is also in Annexrue-J.

Shri J.P. Gupta immediately prior to his appointment as State Election Commissioner of the State of Tripura was Additional Secretary of S.A. Department, Government of Tripura. He is due to retire from his service as a member of Indian Administrative Service in July, 1994. On the expiry of the term of Shri Gupta as State Election Commissioner, he would revert to his parent cadre post under the State Government. The contention of the Petitioner is that the appointment of Shri Gupta is subversive to the concept of independence of the State Election Commissioner envisaged under Article 243-K and Section 176 of the Act and the Rules do not contain any provision or guideline for qualification of the person for appointment as State Election Commission. This gives unbriddled, unguided power to the Governor to appoint any person from executive cadre of his choice. The State Election Commissioner being a high Constitutional and public office, the independence of the incumbent of the said office is sine qua non for compliance to the spirit of Article 243-K of the Constitution. There being no qualification prescribed for such appointment, unguided and unbriddled power of appointment is vested with the Governor. The Petitioner apprehends that the State Government and its officials as well as State Election Commissioner are taking all steps to publish the final electoral rolls and hold the Panchayat election on the basis of such rolls. Process had already started. Hence, the present petition.

This petition was moved before a Single Bench of this Court on 10.2.94. The learned Single Judge considering the importance of the case and involvement of substantial questions of law as to the interpretation of the Constitution felt it expedient that it should be heard and decided by a Division Bench. As per the said order the matter was placed before as Division Bench of this Court and this Court issued Rule. As the matter required early disposal, rule was made returnable within 3 weeks. The Petitioner prayed for leave to file the instant petition in a representative capacity. His prayer was allowed and he was directed to take necessary steps by publishing in a local newspaper "Dainik Sambad". On the prayer of the counsel for the Petitioner this Court directed the Respondent No. 17 not to issue any notification under the said Act for holding any election thereunder until further order. Final electoral rool if published, would subject to the decision of this Court. This Court also fixed 7.3.94 for hearing.

In pursuance of the notification issued in Dainik Sambad, 16 persons have entered appearance by filing petitions praying to allow them to be impleaded as party in the Civil Rule. This Court allowed the prayer and they have been impleaded as Respondent''s.

1st to 3rd Respondent filed affidavit-in-opposition similarly 4th to 16th Respondents also filed separate affidavits to the writ petition. The State Election Commissioner Respondent No. 17 also has filed a separate counter affidavit.

1st to 3rd Respondent in their affidavit have stated that there has been suppression of material facts. They also have stated that the Petitioner put up a distorted picture and has made baseless allegation. Besides, the affidavit to the petition has not been verified in accordance with the provisions of rule. According to these residents, Panchayat election has not been held for 6 years. The last election was held in 1988. They have denied the allegation or averments made in the petition. They have further stated that it was not possible to determine the population only on the basis of the last published census. According to them, it is impossible to determine the population of a Gram as contemplated under the said Act, strictly in accordance with the last preceding census. The census population his been determined revenue village-wise. Therefore, the State Government decided to take the assistance of the register of ordinary residents as reliable record for determining the population of grams. They have further stated that there might be some omissions or error in the draft notification regarding delimitation of constituencies. The omissions and errors have been duly rectified. But this fact has been deliberately and willfully omitted by the Petitioner. They have also stated that the notification for delimitation of constituencies of gram, Panchayat samities and Zilla parishads had been duly published in accordance with law and the Delimitation Rules, 1993 and wide publicity was given through the public media like A.I.R and news media. They have stated that such publicity was enough to bring it to the notice of the people living in grams. There is no provision under Delimitation Rules, 1993 for distribution of draft or final notification to any individual or organisatiaon. Proviso to Rule 5(4) requires only substantial compliance. Quite a good number of objections had been received in respect of grams and Panchayat Samities. They have also stated that as per Rule 9(4) final notification for delimitation of constituencies of gram, panchayat samiti and zilla parishads are required to be published not later than three weeks before the date of poll. However, there is no bar if the delimitation of constituencies is made earlier than three weeks of the date of poll. Fixing of the date of poll is not pre-requisite for delimitation, they, have stated that notification regarding delimitation under law does not require population to be indicated and as such there cannot be any question of discrepancy between grams. The notification of delimitation of constitutions grams, panchayat samities and zilla parishads had been published in a prescribed manner on 22nd January, 1994 in compliance with the rules. The notification of Preparation of Electrical Rolls Rules, 1993 and the Amendment Rules, 1993 have been made in accordance with the Rules and were published and notified in accordance with law. They have also stated that the draft electrol roll was published in accordance with Rule 8A of Amendment Rules and they have particularly denied that the entire process of publication of draft roll was illegal as alleged. They have justified the actions regarding preparation of rolls, etc.

Respondent No. 17 supported the action of the Government. Respondent Nos. 4 to 16 also similarly supported the Respondents 1 to 3.

We have heard learned Counsel for the Petitioner, learned Counsel for the Respondents 1 to 3, learned Advocate General and also learned Counsel appearing on behalf of Respondent No. 17. The newly added Respondents have not filed any counter affidavit.

Mr. Bhaskar Gupta learned Counsel appearing for the Petitioner challenged the actions of the Respondents. He challenged the validity of the delimitation rules as the same is ultra vires the Constitution and the Act. Besides, there was no publication in accordance with the provisions of law. He also challenged the preparation of the electoral rolls as the same was ultra vires the Act. He also challenged the appointment of Shri J.P. Gupta as the Election Commissioner inasmuch as the appointment was not in accordance with the Constitution and contrary to the provisions of relevant rules.

Mr. Ganguli, learned Counsel appearing on behalf of the Respondent Nos. 1 to 3, on the other hand supported the validity of the rules. According to him, these were made in strict compliance with the provisions of the Constitution and the Act. Besides, there was substantial compliance in publication etc. He also justified the preparation of electoral rolls. According to him these were in strict compliance with the principal Act and the Rules. There was nothing wrong in appointing shri J.P. Gupta. The said appointment was in strict compliance with the rules. Besides, Mr. Ganguli submitted that the writ petition itself was not maintainable in law and the affidavit appended to the petition was not properly verified. On the basis of such affidavit, petition could not be considered.

Learned Advocate General appearing on behalf of the Respondent Nos. 4 to 16 and Mr. Shankar Deb, learned Counsel appearing on behalf of the Election Commissioner - Respondent No. 17 adopted the arguments of Mr. Ganguli. Counsel appearing on behalf of the newly added parties, on the other hand, adopted the arguments advanced by the learned Counsel for the Petitioner.

On the rival contention of me parties the following points fall for determination:-

(1) Whether the Rules 3, 6 and 8 of the Delimitation Rules, 1993 are ultra vires the Constitution and the Act and whether it can be challenged in the present writ petition under Article, 226 of the Constitution and whether the present petition is otherwise maintainable.

(2) Whether there has been proper publication in accordance with the, provisions of law.

(3) Whether Tripura Panchayat Preparation of Electoral Rolls Amendment Rules is ultra vires the principal Act.

(4) Whether the appointment of State Election Commission was in accordance with the Constitution and the relevant Rules.

POINT NO. 1

Mr. Gupta, learned Counsel for the Petitioner submitted that Delimitation Rules, 1993 making provisions for determination of population to decide the number of members of Scheduled Castes, Scheduled Tribes and women on the basis of various sources over and above census report is ultra vires the Constitution and the Act.

As per Rule 3(3)(i) of the Delimitation Rules, 1993, the number of Scheduled Castes, Scheduled Tribes or the total population in a gram shall be determined primarily on the basis of last preceding census of which the relevant figures are published. Sub-rule 3(ii) provides that 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 authentic 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 the prescribed authority for the purposes as aforesaid after consulting where necessary, any portion of census, report, electoral roll of the Tripura legislative Assembly or any other authenticated record that may be of assistance. Mr. Gupta''s attack is that this Rule is contrary to the provisions of the Constitution and the Act.

Chapter IX of the Constitution has been included which relates to the local authorities, namely, Panchayat, etc. The very object and reason for introduction of this Chapter are that though local authorities namely, Panchayati Raj institution and other local bodies have been in existence in the country for a long time, it was observed that these institutions failed to acquire the status and dignity of a viable and responsive peoples'' bodies due to variety of reasons including the absence of regular elections, prolonged supersessions inadequate representation of weaker section like Scheduled Castes and Scheduled Tribes and women, insufficient devolution of power and lack of financial resources. The Directive Principles of the State Policy of the Constitution lay down that the State shall take steps to organise village Panchayats and endow them with such powers and authorities as may be necessary to enable them to function as units of local self-government. However, the Directive Principles apply to the village panchayats only. In the light of experience of several decades and in view of the short comings which had been noticed, it was recognised that there was a need to enshrine in the Constitution certain basic and essential features of the local authorities to impart certainty, continuity and to strengthen them and, accordingly, this new Chapter IX relating to local authorities in the Constitution was introduced.

Article 243 gives various definitions including the definition of "Population". As per Article 243(e), "Population" means the population as ascertained at the last preceding census of which the relevant figures have been published. In the said Act, 1993, "Population" has been defined u/s 2(32) as follows:

Population'' means the population as ascertained at the last preceding census of which the relevant figures have been published.

However, Rule 3(3)(i) and (ii) of the said Delimitation Rules, 1993, has given a wider meaning. Rule 3(3)(i) indicates that the total population in a Gram shall be determined primarily on the basis of the last preceding census of which relevant figures are published. However, Sub-rule 3(3)(ii) provides that if census figures are not available in any Gram, the prescribed authority shall, subject to such order of the State Government as may be made in this behalf, determine the population on the basis of other authentic records maintained by any office or organisation of any department of the State Government and where no such record is available, on the basis of local enquiry which may include house to house enumeration caused by him for the purpose as aforesaid, after consulting whore necessary, any portion of the census report, electoral roll of the Tripura Assembly or any other authenticated record that may be of assistance.

Mr. Gupta''s main contention in this regard was that ''population'' having been specifically defined in Article 243(e) of the Constitution and also in Section 2(32) of the Act, the rule making authority had no jurisdiction and power to enlarge the meaning of ''population'' by adding Clause (ii) to Rule 3(3) in the Delimitation Rules, 1993, and, therefore, the said provision is ultra vires the Constitution and the Act. In the instant case, the State Government took into consideration the records available before the B.D.O, and issued notifications Annexure-D series.

Mr. Ganguli, learned Counsel for Respondent Nos. 1 to 3 submitted that the provisions of Delimitation Rules could not be challenged in view of the specific bar in the Constitution under article 243-O. Mr. Ganguli further submitted that the definition of "population" is not exhaustive. As per the definitions, population should not only mean as determined in the last preceding census, but should also include the figures available from other sources. According to Mr. Ganguli, if the definition of population is taken literally, it will lead to absurdity. Article 243-O puts an embargo for interference in electoral matters. We quote Article 243-O:

243-O. 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 243-K, shall not be called in question in any court.

(b) no election to any Panchayat 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 Legislature of a State.

As per the said Article Court is debarred from Interfering with electoral matters, namely, (i) validity of the law relating to the delimitation of the constituencies or the allotment of scats to such constituencies made under Article 243-K and (ii) to call in question election to any Panchayat except by way of election petition. Similar bar is also put in Article 329. The language of both the Articles is more or less similar. Article 329 relates to election natters in respect of Parliament or State Legislature.

In the present case Article 243-O(a) is applicable inasmuch as the Petitioner has challenged the validity of the Delimitation Rules. Therefore, it is necessary to find out the meaning of the word "Law". Whether the expression "Law" includes the rule made under the provisions of the Act? Mr. Gupta, learned Counsel for the Petitioner submitted that Rules framed under the said Act are not laws and, therefore, the bar of Article 243-O(a) is not applicable inasmuch as Rule making authority, namely, Government of Tripura, after making the Rules placed them before the State Legislature and the State Legislature did not do anything in that regard. Therefore, by no stretch of imagination the expression "Law" can embrace the Rule also.

In Meghraj Kothari Vs. Delimitation Commission and Others, the Supreme Court had the occasion to deal with the provision of Article 329(a) which is similar to the present Article 243-O(a). In the said case, it was argued that the Delimitation Commission Act was not passed by the Parliament under ''Article 327, but under Article 82, as such, Courts of law were not precluded from entertaining the question as to the validity of the notifications in the Delimitation Commission because of the opening words of Article 329, Article 82 merely refers that upon completion of each census, the allocation of seats in the House of the People to the States and the division of each state into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine. Article 327 enjoins upon the Parliament to make provisions by law from time to time With respect to all matters relating to or in connection with, elections to either House of parliament or to the House or either House of the Legislature of a State, The Supreme Court in the said case, further, observed that it was the intention of the legislature that every plunder Sections 8 and 9 after publication is to have the force of law and not to be made the subject matter of controversy in any Court. In other words, Parliament by enacting Section 10(2) wanted to make it clear that orders passed under Sections 8 and 9 were to be treated as having the binding force of law and not mere administrative directions. The Supreme Court observed that was further reinforced by Sub-section (4) of Section 10 according to which re-adjustment of representation of the several territorial constituencies in the House of the People and the delimitation of those constituencies provided for in any such order was to apply in relation to every election to the House held after the publication of the order. The Supreme Court ultimately held in the said case that once the Delimitation Commission had made orders under Sections 8 and 9 and those were published u/s 10(1), the orders would have the same effect as if they were law made by the Parliament. From the decision in Meghraj (supra) it is clear that if the Parliament makes any law as empowered under Article 327 that itself would be the law. The Delimitation Act, 1961 was made by the Parliament and that Act specifically provides that after the publications as contemplated u/s 10(2), it shall be deemed to be law. Therefore, law as contemplated under Article 329 must be made by the Parliament in accordance with the power conferred under Article 327. These Article 327 and 329 deal with the election to the Parliament or to the Legislative Assemblies of the States, So far Panchayat elections are concerned, we do not find any such provisions like that of Article 327. Therefore, the Rules made in exercises of the power conferred u/s 228 of the Act Cannot be said to be law. The absence of any such provisions like that of Article 327 gives a clear indication that neither the Parliament nor the State Legislature is empowered to make law. Therefore, it will not be proper to say that the Delimitation Rules are law plating to Delimitation of Constituencies or the allotment of seats to such constituencies. Therefore, we are of the opinion that the bar of Article 243-O(a) is not applicable. As the bar under Article 243-O is not applicable in the instant case it is to be seen whether the provisions of Delimitation Rules are ultra vires the Constitution or the Act. For the purpose it is to seen whether the expression "population" mean only depopulation referred to in Article 243(e) of the Constitution and Section 2(32) of the Act or also includes the number of population determined on the basis of information from other sources.

In the The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, the Supreme Court observed that it must be borne in mind that (sic) is merely a Rule of construction and it cannot prevail In cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. it is only where the intention of the Legislature (sic) wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful. but where the object of the Legislature in using wider words is clear a and free of ambiguity, the rule of construction in question cannot be pressed into service.

Again in The Vanguard Fire and General Insurance Co. Ltd., Madras Vs. Fraser and Ross and Another, the Supreme Court had the occasion to deal with the definition of "insurer". The definition began with the words "insurer means." It was, therefore, held to be exhaustive. The Supreme Court in the said case observed thus.

It is well settled that all statutory definitions or abbreviations must be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive Inasmuch as the word defined is said to mean a certain tiling, it is possible for the word, to have a some what different meaning in different sections of the Act depending upon the subject or the context. That is why all definitions in statutes generally begin with the qualifying words similar to the words used in the present case, namely, unless there is any thing repugnant in the subject or context, Therefore in finding out the meaning of the word ''Insurer'' in various sections of the Act, the meaning to be ordinarily given to it is that given in the definition clause. But this is not inflexible and there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word has been used and that will be giving effect to the opening sentence the definition section, namely, unless there is anything repugnant in the subject or context. In view qualification, the court has not only to look at the words but also to look at the context, the collocation and the object of such words relating such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances. Therefore, though ordinarily the word insurer'' as used in the Act would mean a person or body corporate actually carrying on the business of insurance it may be that in pertain sections the word may have a some what different meaning.

In the The South Gujarat Roofing Tiles Manufacturers Association and Another Vs. The State of Gujarat and Another, the Supreme Court turned down the contention that the word "includes" includes should read always as a word of extension without reference to context.

In The Forest Range Officer and others Vs. P. Mohammed Ali and others, while giving the meaning of "wood oil" the Supreme Court observed thus.

The word include in the definition u/s 2(f) would show that it did not intend to exclude what would ordinarily and in common parlance be spoken of as wood oil. The expression being technical and being part of an inclusive definition has to be construed in its technical sense but in an exhaustive manner, it cannot be restricted in such a manner so as to defeat the principal object and purpose of the Act. The process by which the oil is extracted is not decisive as oil may be extracted by natural process of exudation or it may be extracted by subjecting to chemical or mechanical process and sandalwood (Santalum album) is cut into pieces. Its heart wood and roots of sandalwood trees removed from the forest are used as a raw material at a factory level that too by mechanised process to extract sandalwood oil. The purpose for which the oil is used is not decisive. Therefore, the word wood oil used in the Act will require purposive interpretation drawing upon the context in which the words are used and its meaning will have to be discovered having regard to the intention and object which legislature seeks to subserve.

The Supreme Court in another decision in Krishi Utpadan Mandi Samiti and Mother v. Shankar industries and Ors. reported in 1993 Supp (3) 361 (II), while interpreting the words "means" and "Includes" observed thus-

...It is a well settled rule of Interpretation that where the legislature uses the words ''means'' and includes such definition is to be given a wider meaning and is not exhaustive or restricted to the Items contained or included in such definition Thus the meaning of agricultural produce in the above definition is not restricted to any products of agriculture as specified in the Schedule but also includes such items which come into being in processed form and further includes such items which are called as (sic) shakkar, khandsari and jaggery.

Thus from the ratio of the decisions cited above, the expressions "means" and "includes" or includes give a wider meaning and are not exhaustive or restricted to the item contained or included in such a definition. But then, when the Legislature uses the expression "means" it is intended to be exhaustive and for restricted purpose.

In Province of Bengal v. Sm. Hingul Kumari Law reported in AIR (33) 1946 Cal 217, a Division Bench of Calcutta High Court observed thus-

It is well known that the Legislature uses the word ''means'' where it wants to exhaust the significance of the term defined and the word ''includes'' where it intends that while the term defined should retain its ordinary meaning its scope should be, widened by specific enumeration of certain matters which its ordinary meaning may or may not comprise, so as to make the definition enumerative but not exhaustive.

Again Andhra Pradesh High Court also in Taj Mahal Hotel, Secunderabad Vs. Commissioner of Income Tax, Hyderabad, following the province Bengal (supra) held the same view.

We have looked to the definition of population as given in Article 243(e) and also the definition given in Section 2(32) of the act and we find that the enlargement of the definition of population under the Delimitation Rules, 1993 is contrary to the provisions of the Constitution as well as the Act, The number of the Scheduled Castes or the Scheduled Tribes or the total population in a Gram shall be determined primarily on the basis of the last preceding census of which the relevant figures are published Mr. Ganguli submitted that the census figures do not refer to age. We do not think that age will be a relevant consideration for determining population. When the maker of the Constitution as well as the legislature of Tripura Legislative Assembly have defined the word population in a very unambiguous term no meaning other the one used in the definition can be inferred from the context. The definition of the word must be held to be definite and exhaustive. Therefore, we hold that the expression. population means only as It is defined in Article 243(e) of the Constitution and in Section 2(32) of the Act, If the census report is there, definitely the Government should not look for any other materials and the Rule authorising the Government to look for other documents is definitely contrary to the provisions of the Constitution and the Act. We, therefore, find sufficient force in the submission of Mr. Gupta. Besides, even assuming that the enlargement of the scope of definition of population, to be valid, in that case also Annexure-D series notifications are also contrary to the provisions of rule. If no record is available with the Government then effort has to be made to determine population after making house to house enumeration. The Government without doing so have determined the population on the basis of records available with the B.D.O. Therefore, Annexure-D series notifications are also not in accordance with Rule. We find sufficient force, in the contention of Mr. Gupta.

The contention of Mr. Ganguli that the petition suffers from serious infirmity, namely, that the affidavit appended to the petition has not been verified in the manner envisaged under the Gauhati High Court Rules and also under other provisions of law.

Chapter IV of the Gauhati High Court Rules deals with affidavit. As per the said Rules every person making an affidavit shall describe in such a manner as will serve to identify him clearly, that is to say by the statement of his full name, name of the father, profession, place of residence. When the declarant in any affidavit speaks to any fact within his own. knowledge he shall do so directly and positively. When the fact is not within the declarant''s own knowledge, but is stated from informations obtained from others, and he must disclose the source from which he receives information. When the statement rests on facts disclosed in documents or copies of documents procured from any Court of Justice or other source the deponent shall state what is the source from which they were produced and his information or belief as to the truth of the facts disclosed in such documents. The contention of Mr. Ganguli was that the affidavit was not properly verified inasmuch as the deponent stated that certain paragraphs were derived from information�s and records which he believed to be true and some other paragraphs were respectful submissions, On perusal of the verification portion of we affidavit appended to the writ petition we do not find such infirmity for throwing the petition out as not maintainable.

POINT NO. 2

The Government of Tripura in exercise of the power conferred under Sub-section (1) of Section 228 of the Act made rules to regulate preparation and publication of electoral rolls under the said Act and all other matters relating thereto. Rule 8 of the said Preparation of Electoral Rolls Rules, 1993 provides the manner of preparation of electoral rolls under the superintendence, direction and control of the State Panchayat Election Commission. The State Election Commission shall, in consultation with the State Government, draw up the programme for publication of electoral roll in draft, before its final publication and other matters relating to the preparation of electoral roll. The State Election Commissioner shall also issue notification published in the official gazette, regarding the programme for intensive revision, on the completion of enumeration and preparation of manuscript electoral roll i.e. house to house enumeration of electors and issue of electoral card for each household and calling for objection within 7 days of the date of publication of the electoral rolls in draft giving details in respect of disposal of objection and final publication of electoral rolls. The Government of Tripura, Panchayat Department issued a notification amending the rule by incorporating Rule 8A to the Preparation of Electoral Rolls Rules. Rule 8A of the Amendment Rules provides that for the purpose of First General Election to the Panchayats, the State Panchayat Election Commission shall, In consultation with the State Government, draw up the programme for publication of electoral rolls in draft and for final publication and other matters relating to the preparation of electoral rolls. The State Election Commissioner shall, in relation to preparation of the electoral rolls for the Firs. General Election by notification published in the Gazette specify the date of publication of electoral rolls in draft, the last date for filing claims and objections, period of disposal of the claims and the date of final publication. So much of the electoral rolls of any Assembly constituency as relates to the area comprised within the Panchayats, shall be the electoral rolls for the election of members of Gram Panchayat, Panchayat Samiti and Zilla Parishad. The electoral rolls for any Assembly constituency as it relates to the areas comprised within a constituency or constituencies of Gram Panchayat, Panchayat Samiti and Zilla Parishad, shall be the electoral rolls for the First General Election of the members of Gram Panchayat, Panchayat Samit or Zilla Parisad from that constituency. The electoral rolls for the First General Election for each constituency of the Panchayat shall be prepared by the Electoral Registration officer. For the purpose of preparing the electoral roll of each constituency for the first General Election to Gram Panchayat, Panchayat Samiti or Zilla Parishad the electoral rolls of any Assembly constituency or constituencies shall be split up in such manner as the Electoral Registration Officer may consider fit and necessary. The Electoral Registration Office shall publish the electoral rolls for a constituency or constituencies of the Gram Panchayat, Panchayat Samiti or Zilla parishad in draft in the manner prescribed in the said Suction.

Mr. Gupta submitted that the State Government adopted the electoral rolls prepared for Assembly election. Besides as per Annexure-H, the said electoral roll was cancelled by the Chief Election Commissioner. Nobody challenged that order. According to him adoption of electoral roll does not mean the preparation and, therefore, this cannot be said to be prepared within the meaning of the Delimitation Rules. Mr. Gupta further submitted that Rule 8A provides for adoption of electoral rolls for the Assembly Constituencies as electoral roll for the purpose of holding first General Election. Rule 8A so far it purports to provide such adoption of electoral rolls for Assembly constituencies is contrary to the provisions of the said Act and more so under Sections 176, 177 and 183.

Section 176 provides for constitution of a State Panchayat Election Commission for superintendence, direction and control of the preparation of electoral rolls, appointment of Election Commissioner, his condition of service, appointment of other officers and preparation or revision of electoral rolls for each constituency by the Electoral Registration Officer.

Section 177 of the said Act provides for preparation of electoral roll of each constituency showing the names of the persons qualified to vote in accordance with the provisions of the Act.

Under Section 183, electoral rolls shall be prepared by the Electoral Registration Officer in the mariner prescribed with reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the Act and the said electoral rolls,- if necessary, may be divided in various parts. Under Sub-section (3) of Section 183, electoral rolls can, be revised in prescribed manner with reference to the qualifying date before each General Election of the members of a Gram Panchayat, Panchayat Samiti or Zilla Parishad and in any year in the prescribed manner with reference to a qualifying date, if such revision has been directed by the prescribed authority. Sub-section (4) of the said Section provides for special revision of electoral rolls for Gram Panchayat, Panchayat Samiti or Zilla parishad or a part thereof.

In view of the provisions contained in Sections 176, 177 and 183, according to the learned counsel, the amendment of Rule 8A is ultra vires inasmuch as it is contrary to the said sections. As per the provisions of the said sections preparation of electoral rolls cannot be synonymous with the adoption of any electoral roll In view of the fact that the two concepts are widely different and opposed to each other.

We have perused the provisions of section 176, 177 and 183 and the amended Rule 8A. On perusal of the Rule we find that the amended Rule 8A(3) to (7) is contrary to the provisions the said sections of the Act, It is well established that a rule making authority has no power to make rules contrary to the provisions of the Act. Therefore, in our view amendment of Rule 8 by the Amendment Rules, 1993 is contrary to the provisions of the Act and, therefore, it is ultra vires.

POINT NO. 3:

Rule 17 of the Preparation of Electoral Rolls Rules, 1993 prescribes the procedure for publication of the electoral rolls in draft by the Electoral Registration Officer in the manner prescribed under the said Rule. Under the said Rule, draft rolls ought to be given wide publicity by fixing for public inspection a complete copy of the electoral roll in various offices mentioned in the said rule, As soon as the electoral roll has been published in draft, the Electoral Registration Officer shall give publicity within the Gram Panchayat, Panchayat Samiti or Zilla Parishad in Form No. 4 as widely as possible that the electoral roll has been published in draft and may be inspected at the office of the gram Panchayat, Panchayat Samiti, Zilla Parishad or the various offices mentioned in Sub-rule (2) of Rule 17. This publication is aimed to invite claims and objection within the time prescribed and after the objection and claims are heard and considered in the manner prescribed, the Electoral Registration Officer shall prepare a list of amendment to be carried out his decision under Rules 25, 26, 27 and 28 and to correct any clerical or printing errors or other inaccuracies in the roll and publish the roll together with the list of amendments, by making complete copy thereof available for inspection.

In this case, according to Mr. Gupta, electoral rolls were not published in the manner prescribed. On the other hand, from the affidavit-in-opposition it appears that after the publication of the draft roll it was given publicity with the help of radio and other media. Mr. Gupta''s submission in this regard was that the manner in which the publicity was given was not in accordance with the provisions of law. In this regard, Mr. Gupta submitted that if the law prescribes a particular thing to be done in a particular manner it should be done only in that manner or not at all. Mr. Gupta relied on two decisions in AIR 1936 253 (Privy Council) and Narbada Prasad Vs. Chhaganlal and Others,

In Nazir Ahmed (supra) the Privy Council held that if a statute prescribes an act to be done in a particular way it should be done in that way only or not at all. Again in Narbada Prasad (supra) the Supreme Court held that it is well established rule of law that if a thing is to be done in a particular manner it must be done in that manner or not at all, Other modes of compliance are excluded, Relying on these two decisions learned Counsel Mr. Gupta submitted that the rules prescribed a particular mode of publication and as this has not been done the publication cannot election is vitiated with, the error of procedure.

In Narbada Prasad (supra), the Supreme Court in dealing with an election case held thus-

...It is well-understood rule of law that if a thing is to be done in a particular manner it must be done in that manner or not all. Other modes of compliance are excluded.

Mr. Gupta submitted that the publication of electoral roll was not made in accordance with Section 5 of the Delimitation Rules, 1993. Therefore, there was no proper publication of electoral rolls, However, Mr. Ganguli submitted that the preparation of roll was duly published and with that publication it was enough for the public to know about the preparation of the roll. In fact objections had been received about the preparation of the roll and those objections were dealt with in accordance with the law. The receipt of such objection itself indicates that there had been proper publication of the roll. The learned Counsel further submitted that purpose of publication of the electoral roll was to give publicity so that the people living in the State may know about the preparation of the, roll and can file objection if any. The substantial compliance of the rule would be sufficient for the purpose of Section 5 of the Delimitation Rules, 1993 and this was done. Therefore, there was nothing in it.

In order to consider whether there had been proper publication of electoral roll, first it is to be seen whether the provisions of Rule 5 of the Delimitation Rules, 1993 are mandatory or directory. If the provisions of the Rule, are mandatory those have to be strictly complied with and if they are only directory, substantial compliance is sufficient.

In State of U.P. Vs. Manbodhan Lal Srivastava, the Supreme Court while dealing with the matter regarding the nature of an enactment observed thus:

...Hence the use of the word ''shall'' in statute, though generally taken in a mandatory sense does not necessarily, mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the, proceeding or the outcome of the proceeding, would be invalid.

On the other hand it is not always always correct that where the word may has been used the statute is only permissive or directory in the sense that non-compliance with those provision will not render the proceeding invalid. In that connection the following quotation from Crawford on Construction - Article 261 at P. 516 is pertinent.

The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and nor upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other....

In Ramchandra Keshav Adke (Dead) by Lrs. and Others Vs. Govind Joti Chavare and Others, it was held thus-

A century ago, in Taylor v. Taylor (1875) 1 Ch D 426 Jessel M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in AIR 1936 253 (Privy Council) (2) and later by this Court in several cases. Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, ; Deep Chand Vs. The State of Rajasthan, to a Magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies ''where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a, prohibition to do it in any other. Maxwell''s Interpretation of Statutes, 11th Edn pp, 362-363.

It is true that normally when a statute provides to do a particular thing in a manner prescribed it should be done in the same way. However, this is applicable when the command of the statute is mandatory one and not directory. No hard and fast rule can be laid down for determining whether a particular piece of legislation is mandatory or directory.

In Seth Banarsi Das Vs. The Cane Commissioner and Another, the Supreme Court while following the decision in State of U.P. v. Manbodhan Lal (supra) held the object of the statute must be looked at and even if the porvision be worded in a mandatory form, if its neglect would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the Legislature, it is to be treated only as directory and the neglect of it though punishable would not affect the validity of the acts done. It was further observed that where a statute requires a thing shall be done in a particular manner or form but does not itself set out the consequence of non-compliance, the question whether the prescription of law shall be treated as mandatory or directory could only be solved by regarding the object, purpose and scope of the law. If the statute is found to be directory a penalty may be incurred for non-compliance but the act or thing done is regarded as good.

Calcutta High Court also in Ajit Kumar Sen and Another Vs. State of West Bengal and Others, held in the similar way.

Considering the ratio of the decisions we fed that publication of electoral roll in the manner stated in the affidavit-in-opposition of Respondent Nos. 1 to 3 is sufficient compliance of the Rule 5 of the Delimitation Rules, 1993. Therefore, we do not find any force in the submission of Mr. Gupta in this regard.

POINT NO. 4;

In exercise of powers u/s 228 read with Section 176 of the Act, State Government made rules to constitute a State Panchayat Election Commission for superintendence, direction and control of the preparation of the electoral roll and for the conduct of election to the Panchayat bodies in the State.

Section 176 of the Act provides the procedure for constitution of State Election Commission and also for appointment of State Election Commissioner by the Governor.

Rule 3 of the Tripura Panchayats (Constitution of State Panchayat Election Commission) Rules, 1993 prescribes the procedure for constitution of Election Commission and appointment of State Election Commissioner. We quote the said Rule:

CONSTITUTION OF ELECTION COMMISSION:

(1) The Governor shall constitute a State Panchayat Election Commissioner for superintendence, direction and control of the preparation, revision and correction of electoral rolls and for conduct of all elections to the Panchayats in this State.

(2) The Governor shall on the recommendation of the State Government appoint a State Election Commissioner by publication in the official Gazette.

(3) The State Election Commissioner shall hold office for a period not exceeding six months at a time from the date on which he enters upon his office.

Provided that the Governor may reappoint the same Officer for another term with the recommendation of the State Government if he is otherwise not disqualified for reappointment.

(4) The State Election Commissioner may by writing under his signature by address to the Governor resign his office.

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

(6) A person who holds office of State Election Commissioner shall be in-eligible for reappointment to that office if he has been removed from that office before the expiry of tenure.

The contention of the learned Counsel for the Petitioner that the Governor had been given unguided and unbriddled power for appointment of State Election Commissioner inasmuch as no qualification and guideline have been prescribed for such appointment. The State Election Commissioner is a constitutional functionary having regard to the provisions of Article 243-K of the Constitution. The person appointed as State Election Commissioner must be given adequate independence so that he can discharge his duties independently free from any interference and exercise of independent power by the State Election Commissioner must also appear from the procedure prescribed for his appointment. Mr. Gupta submitted that the present Election Commission Shri J.P. Gupta belongs to Indian Administrative service of Tripura cadre. He is to retire in the middle of the year. Therefore on completion of his term of state Election Commissioner he would revert back to his parent position. By saying so, learned Counsel for the Petitioner tried to impress upon this Court that the Election Commissioner would not be free from influence of the State Government and he might not have that amount of independence which the State Election Commissioner is expected to have. Therefore, the very purpose of giving independence to the Election Commissioner is frustrated because of his being a member of the Indian Administrative Service of Tripura cadre and that the Governor might have appointed him on the recommendation of the State Government so that the State Election Commissioner might be under the control of the State Government. He further submitted that the State Election Commissioner in Tripura was also a constitutional functionary as per provisions of Article 243-K of the Constitution so that he could get full independence in discharging his duties. The object of giving protection to the State Election Commissioner is to give adequate independence. The present Election Commissioner Sri. J.P. Gupta being a member of Indian Administrative Service of Tripura Cadre was bound to be under the control of the. State Government, Therefore, he would not be free and independent in taking decisions in conducting the election, more so, when he would go back to his parent position after completion of the term.

Mr. Ganguli, on the other hand, supported the appointment of Sri. J.P. Gupta. According to him, as per the Tripura Panchayats (Constitution of State Panchayat Election Commission) Rules, 1993, the State Election Commissioner is to be appointed by the Governor on the recommendation of the Government. The Governor being a constitutional functionary misuse of power cannot be presumed.

It is true that there is need for guidelines in exercise of discretion conferred by the statute on the authority concerned. There is need for such principles or guidelines when the discretionary power is purely administrative in character to be exercised on the subjective opinion of the authority, The same is, however, not true when the power is required to be exercised on objective considerations. But then, when such power is given to a high functionary of the Constitution, normally it is to be presumed that the said authority will exercise the power reasonably and fairly, unless it is pointed out that the power exercised by the said authority is unreasonable, arbitrary and unfair. In the absence of any material to indicate that the authority has exercised the power in a manner not contemplated by the Act or the Rules, it cannot be said to be unreasonable, arbitrary and unfair.

The provision of an Act or Rule cannot be challenged under Article 14 of the Constitution merely because some amount of discretion is conferred on the executive.

The abuse of power by the executive is not to be easily assumed. There is also a presumption that public officials will discharge their duties honestly in accordance with the rules of law.

In re The Kerala Education Bill, 1957, reported in AIR 1958 SC 956, a Constitutional Bench of the Supreme Court observed thus:

...In this connection we must bear in mind what has been laid down by this Court in more decisions than one, namely, that discretionary power is not necessarily a discretionary power and the abuse of power by the Government will not be lightly assumed. For reasons stated above it appears to us that the charge of unconstitutionality of the several clauses which come within the two questions now under consideration founded on Article 14 cannot be sustained. The position is made even clearer when we consider the question of the validity of Clause 15(1) for, apart from the policy and principle deducible from the long title and the preamble of the Bill and from that sub-clause itself, the proviso thereto clearly indicates that the legislature hits not abdicated its function and that while it has conferred on the Government a very wide power for the acquisition of categories of schools it has not only provided that such power can only be exercised for the specific purposes mentioned in the clause itself but has also kept a further and more effective control over the exercise of the power by requiring that it is to be exercised only if a resolution is passed by the Legislative Assembly authorising the Government to do so....

This Court also in Gaur Nitay Tea Co. v. State of Assam and Anr. reported in AIR 1966 Gau 58 had the occasion to decide regarding conferment of discretionary power of the authority. In the said case it was contended that Legislature had laid down no guidelines for application of the provisions of the impugned Act and not the Land Acquisition Act. A Full Bench of this Court observed thus:

...In my opinion there is no substance in this contention. Section 3 of the Act provides that if in the opinion of the State Government or any person authorised in this behalf by the State Government it is necessary so to do, for maintaining supplies and services essential to the life of the community or for providing proper facilities for accommodation, transport, communication, irrigation, flood control and anti-erosion, measures including embankment and drainage or for providing land individually or in groups to landless, flood affected or displaced persons, or to a society registered under the Assam Co-operative Societies Act, 1949, or a company incorporated under the Companies Act, 1956, formed for the benefit and rehabilitation of landless, flood affected or displaced persons the State Government of the person so authorised, as the case may be, may, by order in writing, requisition any land and thereafter acquire u/s 6 the same land which has been the subject matter of requisition. Thus there is a clear guidance for the Government for taking action under this Act. It cannot be said that the Government can arbitrarily pick and choose persons against whom it should take action under the impugned Act and against whom it should take action under the Land Acquisition Act. A land which is requited for the purposes enumerated in Section 3 naturally forms a distinct and definite class by itself. The whole subject of the Act as set out in the preamble is to provide for speedy acquisition of the premises and land. The public purposes enumerated in Section 3 do require a speedy action on the part of the executive. Thus the classification has a reasonable nexus with the subject of the Act and the purpose sought to be achieved by the Act.

Rule 3 of the Tripura Panchayats (Constitution of State Panchayat Election Commission) Rules, 1993 empowers the Governor to constitute a State Panchayat Election Commission for superintendence, direction and control of the preparation, revision and correction of electoral rolls and for conduct of all elections to the Panchayats in the State. This Rule also empowers the Governor to appoint a State Election Commissioner on the recommendation of the State Government and the Commissioner so appointed shall hold office for a period not more than six months from the date on which he enters upon his office. However, the Governor may reappoint the same Officer for another term with the recommendation of the State Government if he is otherwise not disqualified. Besides, the State Election Commissioner so appointed, shall not be removed from his office except in like manner and on the like ground as a Judge of the High Court and his conditions of service, shall not be varied to his disadvantage after his appointment. This Rule clearly indicates that the Commissioner is entrusted with the important functions, such as, superintendence, direction and control of the preparation, revision and correction of electoral rolls and also for conduct of all elections to the Panchayats.

Article 243-K of the Constitution also empowers the State Legislature to make provisions with respect to elections to Panchayats and with respect to all matters relating to, or in connection with, elections to the Panchayats under the superintendence, direction and control of the Chief Electoral Officer of the State.

From the reading of the said Article as well as Rule 3 of the Tripura Panchayats (Constitution of State Panchayat Election Commission) Rules. 1993, it is abundantly clear that Rule 3 has given ample indication regarding responsibility of the State Election Commissioner and his status. In our opinion, these are the guidelines for a high constitutional functionary like Governor for appointment of the State Election Commissioner. Therefore, we do not find that the power to appoint the State Election Commissioner, as mentioned in Rule 3, by the Governor is not without any guideline.

The next contention of Mr. Gupta was that the appointment of Sri J.P. Gupta was contrary to the Constitutional provisions and that he would not be able to exercise his own discretion independently, As stated above, Sri J.P. Gupta is a member of the Indian Administrative Service of Tripura Cadre, However, his appointment and removal arc not exclusively under the control of the State Government. Besides, a member of the Indian Administrative Service, is supposed to be a competent person and Mr. Gupta being a senior member of the Indian Administrative Service, surely he has the experience to discharge his duty and function as State Election Commissioner. We are unable to accept the submission that after the expiry of the term of his appointment as State Election Commissioner, he would be reverted back to his parent position, so control of the Government would continue when he would function as State Election Commissioner. In view of the above, we do not find any force in the submission of Mr. Gupta. Accordingly, we hold that the provisions of Rule 3 of the Tripura Panchayats (Constitution of State Panchayat Election Commission) Rules, 1993 are not ultra vires. We also hold that the appointment of Shri J.P. Gupta as State Election Commissioner is valid and in consistence with the Constitutional provisions and the Rules made thereunder.

CONCLUSION:

Thus, on an everall consideration of various aspects of the matter discussed above, we hold that the petition under Article 226 of the Constitution of India is maintainable in law, there has been proper publication of electoral rolls in accordance with the provisions of law and the appointment of State Election Commissioner was also in accordance with the Constitutional provisions and the rules made thereunder. Rule 3(2) of the Tripura Panchaynts (Constitution of State Panchayat Election Commission) Rules, 1993 is intra vires. However, we declare that provisos to Rule 3(3)(ii), 6(4)(ii) and 8(4)(c)(ii) of the Delimitation Rules, 1993 are ultra vires the Constitution and the principal Act and Rule 8A(3) to (7) of the Amended Rule is also ultra vires the Act.

With the above observations, we dispose of this writ petition. However, in the facts and circumstances of the case, we make no order as to costs.