Gujarat High CourtBakarola Jayeshkumar Parmabhai vs State Election Commission on 10 February, 2021Bench: J.B.Pardiwala, Ilesh J. VoraC/SCA/1429/2021                                 CAV JUDGMENT\n\n\n\n          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n            R/SPECIAL CIVIL APPLICATION NO. 1429 of 2021\n                                With\n            R/SPECIAL CIVIL APPLICATION NO. 1860 of 2021\n                                With\n            R/SPECIAL CIVIL APPLICATION NO. 1862 of 2021\n                                With\n            R/SPECIAL CIVIL APPLICATION NO. 2092 of 2021\n                                With\n            R/SPECIAL CIVIL APPLICATION NO. 13373 of 2020\n\n\nFOR APPROVAL AND SIGNATURE:\n\nHONOURABLE MR. JUSTICE J.B.PARDIWALA                             Sd/­\nand\nHONOURABLE MR. JUSTICE ILESH J. VORA                             Sd/­\n================================================================1   Whether Reporters of Local Papers may be allowed              YES\n    to see the judgment ?2   To be referred to the Reporter or not ?                       YES\n\n3   Whether their Lordships wish to see the fair copy              NO\n    of the judgment ?\n\n4   Whether this case involves a substantial question              NOof law as to the interpretation of the Constitution\n    of India or any order made thereunder ?================================================================\n                   DINESHBHAI CHHAGANBHAI GAMIT\n                               Versus\n                 GUJARAT STATE ELECTION COMMISSION\n================================================================\nAppearance:MR KP CHAMPANERI for the Petitioner in SCA No.1429 of 2021\nMR ANAND YAGNIK for the Petitioner in SCA Nos.1860 & 1862 of 2021\nMR CP CHAMPANERI for the Petitioner in SCA No.2092 of 2021\nMR DHARMESH GURJAR for the Petitioner in SCA No.13373 of 2020\nMS ROOPAL PATEL for the Respondent No.1.MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with MS\nAISHVARYA GUPTA, AGP for the Respondent(s) No.2 - STATE.\n================================================================Page 1 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                             CAV JUDGMENTCORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA\n        and\n        HONOURABLE MR. JUSTICE ILESH J. VORA\n\n                               Date : 10/02/2021\n\n                        CAV JUDGMENT\n          (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)1.   Since       the      issues      raised      in   all     the        captioned\nwrit-applications are the same, those were taken up for hearing\nanalogously and are being disposed of by this common judgment\nand order.2.   In    all      the   captioned    writ-applications,          the     common\ngrievance that has been voiced is with regard to the rotation of\nthe reserved seats for the forthcoming panchayat elections in the\nState of Gujarat. In other words, the grievance voiced is that the\nState Election Commission has failed to follow the Gujarat\nTaluka and District Panchayats Election (Manner of Allotment of\nReserved Seats by Rotation) Rules, 1994, more particularly, the\n(Amendment) Rules, 2015.3.   For the sake of convenience, the Special Civil Application\nNo.1429 of 2021 is treated as the lead matter.4.   By      this      writ-application     underArticle      226of     the\nConstitution of India, the writ-applicant, a resident of village\nHindala, Taluka Songadh, District Tapi, and a member of\nScheduled Tribe, desirous of contesting in the forthcoming Tapi\nDistrict Panchayat elections, has prayed for the following reliefs :Page 2 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                         CAV JUDGMENT"(A)    This      Hon'ble   Court     may    be   pleased        to     issue\nappropriate writ, order or direction in the nature of\nmandamus or any other appropriate writ, order or directions\nand be pleased to quash and set aside the impugned order,\nAnnexure-G, dated 09.09.2020 passed by the respondent\nno.1 herein and further be pleased to direct the respondent\nno.1 to reserve ST-4, Chimer Constituency of Tapi District\nPanchayat for Scheduled Tribe General.(B)     This      Hon'ble   Court     may    be   pleased        to     issue\nappropriate writ, order or direction in the nature of\nmandamus or any other appropriate writ, order or directions\nand be pleased to direct the respondent no.1 to follow the\nprocedure prescribed under rules, Annexure-A, B and D,\nand      publish     a   fresh   order      reserving    ST-4,        Chimer\nConstituency of Tapi District Panchayat for Scheduled Tribe\nGeneral in the ensuing elections.(C)     Pending admission and hearing, this Hon'ble Court\nmay be pleased to stay the implementation, operation and\nexecution of impugned order Annexure-G, till and pending\nhearing and final disposal of present petition.(D)     Be pleased to pass such other and further reliefs, as\nthe nature and circumstances of the present case may\nrequire;"Page 3 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                  CAV JUDGMENT5.   The case put up by the writ-applicant may be summarised\nas under :5(1) The writ-applicant is a resident and a registered voter of\nthe Hindala village of the Songadh Taluka. The said village is a\npart of the 4-Chimer constitutency. The said seat in the Tapi\nDistrict Panchayat has been reserved for a Scheduled Tribe\nwoman.5(2) It is the case of the writ-applicant that the Chimer\nconstituency is reserved for a woman of Scheduled Tribe past 20\nyears and no male member of Scheduled Tribe is able to contest\nthe election from the said constituency. The writ-applicant is\ndesirous of contesting the election from the said constituency\nbut is unable to do so for the aforesaid reason.5(3) It is the case of the writ-applicant that in exercise of\npowers conferred by sub-section (5) of Section 274 read with\nsub-section (5) of Section 10 and sub-section (5) of Section 11 of\nthe Gujarat Panchayats Act, 1993 (for short, 'the Act 1993'), the\nGovernment of Gujarat has framed the rules, namely, the\nGujarat Taluka and District Panchayats Election (Manner of\nAllotment of Reserved Seats by Rotation) Rules, 1994 (for short,\n'the Rules 1994'). By Notification dated 5 th August 2015, these\nrules came to be amended by way of the Gujarat Taluka and\nDistrict Panchayats Election (Manner of Allotment of Reserved\nSeats by Rotation) (Amendment), Rules, 2015.Page 4 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                               CAV JUDGMENT5(4) It is the case of the writ-applicant that the provisions of the\namended rules have not been followed by the State Election\nCommission while passing the final order of allotment of\nreserved seats of the Tapi District Panchayat. In other words, the\nallotment is contrary to the amended rules. According to the\nwrit-applicant, the State Election Commission is empowered to\nprescribe the manner of allotment and rotation of seats under\nthe provisions ofArticle 243-DandArticle 243-Trespectively of\nthe Constitution of India for the purpose of elections of\npanchayats and municipalities respectively.5(5) It is pointed out that the respondent no.1, i.e. the Gujarat\nState Election Commission, issued an order dated 24 th July 2020\nin the form of guidelines to be followed for the purpose of\nallotment of reserved seats.5(6) The Government of Gujarat, in exercise of powers conferred\nunder sub-section (5) of Section 274 read with Section 16 of the\nAct 1993, framed the rules called, 'the Gujarat Taluka and\nDistrict Panchayats (Delimitation of Electoral Division) Rules,\n2010 (for short, 'the Rules 2010'). It is pointed that Rule 5 of the\nsaid Rules provides for the publication of a proposed order and\ninviting of suggestions from the general public prior to the\npublication of the final order in this regard.5(7) It is the case of the writ-applicant that the Election\nCommission addressed a communication dated 9th September\n2020 to the respondent no.2, i.e. the District Election Officer and\nCollector, Tapi, providing the final order prescribing the mannerPage 5 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                              CAV JUDGMENTof allotment and reservation of seats of the Tapi District\nPanchayat. It is this communication which is the subject matter\nof challenge in the present litigation.SUBMISSIONS ON BEHALF OF THE WRIT-APPLICANT :6.    Mr.Champaneri, the learned counsel appearing for the\nwrit-applicant, vehemently submitted that the impugned order at\nAnnexure-G referred to above has been issued in violation of the\nprovisions of the Rules 2010. It is argued that the proposed\norder was not published and the objections, if any, from the\ngeneral public were not invited. It is argued that the amended\nrules of 2015 have been overlooked while passing the impugned\norder. The manner of allotment and reservations of seats is in\nviolation of the procedure prescribed by the Legislature and,\ntherefore, is violative ofArticle 243-Dof the Constitution of\nIndia.7.    Mr.Champaneri invited the attention of this Court to the\naverments made in paragraphs 15, 16, 17 and 18 respectively to\nthis writ-application to demonstrate in what manner the rules\nwith regard to the rotation of seats as amended in 2015 have not\nbeen followed. The averments are quoted as under :"15. At this stage, it is submitted that while providing for\n      reservation to Schedule Caste Special Serial Number for\n      Schedule Caste is required to be followed in rotation, which\n      is based upon the population of Schedule Caste. During thePage 6 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                               CAV JUDGMENTlast elections held in the year 2015 seat bearing Special\nSerial Number SC-1 was reserved. Hence during this\nelections seat bearing Special Serial Number SC-2 Nizar\n(ST-20) is required to be reserved, which is reserved.Excluding the above reservation, 23 seats are required to be\nreserved for Schedule Tribe following the separate roster of\nSchedule Tribe. During the elections held in the year 2015\nseat\n\n\nbearing Special Serial Number ST-1 to ST-24 were reserved\nfor the said category.16.     Hence during the ensuing elections onwards seat\nbearing Special Serial Number ST-25, 23 seats are required\nto be reserved. Accordingly, seats bearing ST-25, 26, 1, 2, 4,\n5, 7, 8, 9, 14, 15, 16 are reserved for women of Schedule\nTribe, while seats bearing ST-3, 6, 10, 11, 12, 13, 17, 18,\n19, 21, 22 are reserved for General Category of Schedule\nTribe. Thus, the seats are reserved for women of the\nSchedule Tribe without following any pattern while making\nreservation, which is an arbitrary action. As per the\nprovisions of amended rules of 2015, while giving priority to\nwomen, one seat is required to be reserved for women while\nnext seat as per the roster is required to be reserved for\nGeneral Category of Schedule Tribe. Thus, the respondent\nno.1 has not considered the provisions of amended rules of\n2015 while making reservation and hence the impugned\nreservation deserves to be quashed and set aside.Page 7 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                 CAV JUDGMENT17.     As per the amended provisions of the amended rules,\nwomen are required to be prioritized in odd numbers.\nConsidering the roster from ST-25 and prioritizing the\nwomen in odd number ST-4, Chimer Constituency should\nhave been reserved for Schedule Tribe General. However, it\nis reserved for Schedule Tribe woman. Thus, the allotment of\nseats is made without following the due process of law and\nthat the same has resulted into depriving the petitioner from\ncontesting the election, in an arbitrary manner.18.     Even otherwise, it is submitted that rotation means not\nonly implementing successively reservation of one or the\nother nature from amongst Schedule Castes, Schedule\nTribes, Socially and Economically Backward Classes and\nwomen but to prescribe a manner of rotation and to follow\nthe same. It is submitted that a bare perusal of the\nreservation and manner of allotment for women in the\nelection held in the year 2015 and in the ensuing elections\nwould suggest that no procedure has been followed while\nreserving the seats for women much less the procedure\nprescribed under rules of 1994 and/or amended rules of\n2015. Further, it appears that in both the elections no roster\nhas been followed while reserving the seats of women and\nthat such reservation is left to the sweetwill of the political\ndictates. The State Election Commission has no authority to\ngive a go-bye to the procedure prescribed in the manner of\nallotment and reservation of seats and hence the impugned\norder deserves to be quashed and set aside."Page 8 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                               CAV JUDGMENT8.      In such circumstances referred to above, Mr.Champaneri\nprays that the impugned order at Annexure-G dated 9 th\nSeptember 2020 passed by the State Election Commission be\nquashed and set-aside and the State Election Commission be\ndirected to reserve the ST-4-Chimer constituency of the Tapi\nDistrict        Panchayat   for        Scheduled   Tribe        (General).\nMr.Champaneri prays that this Court may issue an appropriate\nwrit or direction to the respondent no.1 to follow the procedure\nprescribed under the Rules and publish a fresh order reserving\nthe ST-4-Chimer constituency of the Tapi District Panchayat for\nScheduled Tribe (General) in the ensuing elections.9.      Mr.Champaneri, in support of his submissions, has placed\nreliance on the following decisions :(i)     Election Commission of India through Secretary vs. Ashok\n        Kumar, (2000) 8 SCC 216;(ii)Mohanbhai Jethabhai Pariya vs. State of Gujarat, (2011) 5\n        GLR 4559;(iii)Dineshbhai Palabhai Patar vs. Gujarat State Election\n        Commission, (Special Civil Application No.19261 of 2016,\n        decided on 23.11.2016)10.     We also heard Mr.Anand Yagnik, the learned counsel\nappearing for the writ-applicant in the Special Civil Application\nNo.1860 of 2021 and the Special Civil Application No.1862 of\n2021 respectively, Mr.C.P.Champaneri, the learned counsel\nappearing for the writ-applicant in the Special Civil ApplicationPage 9 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                  CAV JUDGMENTNo.2092 of 2021 and Mr.Dharmesh Gurjar, the learned counsel\nappearing for the writ-applicant in the Special Civil Application\nNo.13373 of 2020.SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.1 -\n      GUJARAT STATE ELECTION COMMISSION :11.   Ms.Roopal Patel, the learned counsel appearing for the\nElection      Commission,   has        vehemently      opposed            this\nwrit-application. Ms.Patel has raised a preliminary objection as\nregards the maintainability of this writ-application. According to\nMs.Patel, this writ-application is not maintainable in view of the\nbar ofArticle 243-Oof the Constitution of India. According to\nMs.Patel, the dispute relates to the allotment of seats for the\nforthcoming elections of the Tapi District Panchayat, for which\nthe election programme has already been notified on 23 rd\nJanuary 2021. It is pointed out that the voting for the said\nelection is to take place on 28th February 2021. It is argued that\nthe writ-application is hit by the constitutional bar underArticle\n243-Oof the Constitution of India. It is argued that the validity\nof delimitation and allotment of seats made underArticle 243-Kof the Constitution of India cannot be questioned in any court.\nAccording to Ms.Patel, no election to a panchayat can be\nquestioned on any grounds except by way of an election petition.12.   It is argued that the writ-applicant has preferred the\npresent writ-application as he intends to contest the election\nfrom the Chimer constituency but, as the seat of the said\nconstituency is reserved for a Scheduled Tribe woman, he isPage 10 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                               CAV JUDGMENTunable to contest the said election. According to Ms.Patel, the\nright to contest election is not a fundamental right, and in such\ncircumstances,            the      writ-applicant        cannot         maintain           a\nwrit-application underArticle 226of the Constitution of India. It\nis argued that the right to contest the election is a right which\nflows from a statute, and as none of the fundamental rights or\nany other legal rights of the writ-applicant could be said to have\nbeen infringed, the present writ-application is not maintainable.13.   Ms.Patel would submit that assuming for the moment\nwithout     admitting            that    the      present    writ-application              is\nmaintainable,           the   writ-applicant has            no   case      on     merits.\nAccording to Ms.Patel, there is no merit in the contention\ncanvassed on behalf of the writ-applicant that the impugned\norder dated 9th September 2020 came to be published without\ninviting the objections from the general public. According to\nMs.Patel, the mandate of Rule 5 of the Delimitation Rules 2010\napplies only when there is a fresh delimitation or allotment of\nreserved seats. As there was no fresh delimitation or allotment\nundertaken for the ensuing elections, it was not necessary to\ncomply with the requirement under Rule 5 of the Rules 2010.14.   Ms.Patel would argue that as per Rule 3 of the rules 1994,\nthe   general           serial    numbers          are   allotted       to      all     the\nconstituencies/wards constituted for the conduct of elections to\nthe District Panchayats. As per Rules 4 and 5 thereof, the\nelectoral division are allotted the special serial numbers based\nupon the population of the Scheduled Castes and Scheduled\nTribes in the order of the electoral division consisting of thePage 11 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                 CAV JUDGMENThighest percentage of the population of the Scheduled Castes\nand Scheduled Tribes, as the case may be.15.   It is argued that the allotment of seats is required to be\ndone in accordance with the special serial numbers of the entire\nroster consisting of the various constituencies arranged in\naccordance with their respective special serial numbers and need\nto be exhausted. Once the same is exhausted, the roster is\nrequired to be restarted from the electoral division having the\nhighest percentage of the respective reserved category of the\npopulation. As regards the allotment/rotation of seats for the\nyear 2015, a small note has been provided to us for the purpose\nof explaining how the seats have been allotted/rotated. The note\nreads thus :"I.     Allotment/Rotation of seats for the year 2015(a)     In the year, 2015, election was to be held for 26 seats\n      in the Tapi District Panchayat. In consonance with the\n      population as per the Census of 2011, one seat was\n      reserved for a candidate belonging to Scheduled Caste, 24\n      seats were reserved for candidates belonging to Scheduled\n      Tribes [12 seats: Scheduled Caste (Women) and 12 seats:\n      Scheduled Caste] and 1 seat was reserved for candidates\n      belonging to SEBC category.(b)     All constituencies were first allotted General Serial\n      Numbers from S. no. 1 to 26. (NOTE: Tapi is predominantly a\n      tribal district) The same is evident from at pg. no. 56 of the\n      petition.Page 12 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                   CAV JUDGMENT(c)     Subsequently, as per Rule 5 of the 1994 Rules, Borda\nconstituency in Songadh Taluka was allotted special serial\nnumber: ST-1 and Chimer constituency in Songadh Taluka\nwas allotted special serial number: ST-4 and such Special\nserial numbers were allotted in the order of the electoral\ndivisions having highest percentage of the Scheduled Caste\nTribe population.(d)     It should be noted that considering the chronology as\nspecified in the 1994 Rules, one seat in ward bearing\nSpecial Serial Number, SC:1 (Nizar ward, Nizar Taluka) was\nallotted for Scheduled Caste candidate. Thereafter, the\nallotment of seats for Scheduled Caste candidates was\nstarted from the ward bearing Special Serial Number: ST-1\nup until the ward bearing Special Serial Number: ST-24.(e)     It is also pertinent to note that the proviso to Rule 5 of\nthe 1994 Rules, makes it clear that whilst allotting reserved\nseats by rotation in a Taluka, if more than one seat is to be\nallotted, the seats bearing the odd nos., i.e., 1st, 3rd and so\non, shall be allotted to the woman belonging to the\nScheduled Tribes. Thus, the first seat, third seat, fifth seat\nand so on, in each Taluka is to be allotted to a ST female\ncandidate.(f)     A perusal of the table provided on pg. no. 56 of the\npetition would indicate that the following seats fall within\nthe Songadh Taluka:Page 13 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                 CAV JUDGMENTi.      Borda - SC:1 - 1st Seat in Songadh Taluka (General\n        S.no.5)\n\n\nii.     Aamalgudi - SC:3 - 2nd Seat in Songadh Taluka\n        (General   S.no.1)\n\n\niii.    Chimer - SC:4 - 3rd Seat in Songadh Taluka (General\n        S.no.8)\n\n\niv.     Dhajamba - SC:6 - 4th Seat in Songadh Taluka\n        (General   S.no.9)\n\n\nv.      Dosavda - SC:9 - 5th seat in Songadh Taluka\n        (General   S.no.11)\n\n\nvi.     Bhimpura - SC:11 - 6th Seat in Songadh Taluka\n        (General   S.no.3)\n\n\nvii.    Gunsada - SC:15 - 7th Seat in Songadh Taluka\n        (General   S.no.14)(g)     Therefore, considering the provisions of Rule 5 and the\nproviso thereto, the 1st, 3rd, 5th and 7th seats in the\nSongadh Taluka were allotted for ST (Women) Candidates.II.     Allotment/Rotation of seats for the year 2020-21(a)     For the election process which is underway (February,\n2021), the allotment of reserved seats was notified vide\nnotification dated 09.09.2020. Elections are to be held for\n26 seats, out of which 1 seat is reserved for ScheduledPage 14 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                           CAV JUDGMENTCaste Candidate, 23 seats for scheduled Tribe candidates\n[12    seats:     Scheduled      Tribe       (Women)    and       11      seats:\nScheduled Tribe] and 2 seats for candidates belonging to\nSEBC category [1 seat: SEBC (Woman) and 1 seat: SEBC].(b)     Considering that there has been no change in the\nterritorial limits in the constituencies, the General and\nSpecial Serial numbers allotted for the 2015 election were\ncontinued.(c)     In the last election held in the year 2015, the seat\nbearing Special Serial Number - SC: 1, i.e. Nizar seat in\nNizar Taluka was allotted for Scheduled caste Candidate.\nFor the upcoming elections, the seat bearing SC:2, i.e.\nVeldha in Nizar Taluka has been allotted for a Scheduled\nCaste candidate. Thus, establishing that rotation has taken\nplace for seats reserved to Scheduled Caste Seats.(d)     In    respect   of   the     Scheduled     Tribe        candidates,\nconsidering that for the 2015 election, the allotment of seats\nwas carried out for seats bearing Special Serial Numbers,\nST:1 to ST:24, this time the allotment was started from seat\nbearing Special Serial Number ST: 25, i.e., Valod and ST:\n26, i.e., Nizar. It should be noted that considering that a full\ncycle of the rotation was completed, i.e. till ST: 26, the\nallotment was thereafter, continued from seat bearing\nSpecial Serial Number, ST:1, i.e. Borda in Songadh Taluka.(e)     It is reiterated that the proviso to Rule 5 of the 1994\nRules, makes it clear that in case of allotment of reservedPage 15 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                             CAV JUDGMENTseats by rotation for the district panchayat, while allotting\n       seats in the Taluka, where more than one seat is to be\n       allotted, the seats bearing the odd nos., i.e., 1st, 3rd and so\n       on, shall be allotted to the woman belonging to the\n       Scheduled Tribes.(f)     A perusal of the table provided on pg. no. 51 of the\n       petition would indicate the following:Special Name of Constituency                         Allotment of Seat\nSerial\nNumber\n\n  25         Valod (Tal: Valod)                      ST (Female)\n  26         Nizar (Tal: Nizar)                      ST (Female)\n   1         Borda (Tal: Songadh)                    ST (Female) [1st Seat in\n                                                     Songadh Taluka]\n   2         Vadpadanesu (Tal: Ucchal)               ST (Female)\n   3         Aamalgudi (Tal: Songadh)                ST (Male/Female) [2nd Seat\n                                                     in Songadh Taluka]\n   4         Chimer (Tal: Songadh)                   ST (Female) [3rd Seat in\n                                                     Songadh Taluka]\n   5         Baambaba (Tal: Fukarmunda)              ST (Female)\n   6         Dhaajamba (Tal: Songadh)                ST (Male/Female) [4th Seat\n                                                     in Songadh Taluka]\n   7         Holvan (Tal: Vyara)                     ST (Female)\n   8         Karjvel (Tal: Vyara)                    ST (Female)\n   9         Dosvada (Tal: Songadh)                  ST (Female) [5th Seat in\n                                                     Songadh Taluka]\n  10         Mohini (Tal: Ucchal)                    ST (Male/Female)\n  11         Bhimpura (Tal: Songadh)                 ST (Male/Female) [6th Seat\n                                                     in Songadh Taluka]\n  12         Pati (Tal: Holvan)                      ST (Male/Female)\n  13         Ketrakui (Tal: Vyara)                   ST (Male/Female)\n  14         Ucchal (Tal: Ucchal)                    ST (Female)\n  15         Gunsada (Tal: Songadh)                  ST (Female) [7th Seat in\n                                                     Songadh TalukaPage 16 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                CAV JUDGMENT16.   Ms.Patel, the learned counsel appearing for the State\nElection Commission, in support of her preliminary objection as\nregards the maintainability of the writ-application, has placed\nreliance on the following two decisions :(i)Ismail Noormohmad Mehta and others vs. State of\n              Gujarat and others, (1996)1 GLR 549;(ii)    Prafulbhai Ladhabhai Raiyani vs. State of Gujarat\n              and others (Special Civil Application No.19068 of\n              2015, decided   on 26th November 2015).17.   In such circumstances referred to above, Ms.Patel prays\nthat there being no merit in the present writ-application, the\nsame be rejected.SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.2 -\n      DISTRICT ELECTION OFFICER AND COLLECTOR :18.   Ms.Manisha Lavkumar Shah, the learned Government\nPleader, assisted by Ms.Aishvarya Gupta, learned AGP appearing\nfor the respondent no.2, has vehemently opposed the present\nwrit-application. According to Ms.Shah, all the writ-applications\ndeserve to be rejected only on the ground that those are not\nmaintainable in view of the bar ofArticle 243-Oof the\nConstitution of India.19.   Ms.Shah invited the attention of this Court to the decision\nof the Supreme Court in the case ofState of U.P. and others vs.Page 17 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                  CAV JUDGMENTPradhan Sangh Kshettra Samiti and others, reported in 1995\nSupp (2) SCC 305, more particularly, the observations made by\nthe Supreme Court in paragraphs 45 therein. Paragraph 45\nreads thus :"45. What is more objectionable in the approach of the High\n     Court is that although clause (a) ofArticle 243-0of the\n     Constitution enacts a bar on the interference by the courts in\n     electoral matters including the questioning of the validity of\n     any law relating to the delimitation of the constituencies or\n     the allotment of seats to such constituencies made or\n     purported to be made underArticle 243-Kand the election to\n     any panchayat, the High Court has gone into the question of\n     the validity of the delimitation of the constituencies and also\n     the allotment of seats to them. We may, in this connection,\n     refer to a decision of this Court inMeghraj Kothari v.\n     Delimitation Commission & Ors. [(1967) 1 SCR 400]. In that\n     case, a notification of the Delimitation Commission whereby\n     a city which had been a general constituency was notified\n     as reserved for the Scheduled Castes. This was challenged\n     on the ground that the petitioner had a right to be a\n     candidate for Parliament from the said constituency which\n     had been taken away. This Court held that the impugned\n     notification was a law relating to the delimitation of the\n     constituencies    or   the   allotment   of    seats       to      such\n     constituencies made underArticle 327of the Constitution,\n     and that an examination ofsections 8and9of the\n     Delimitation Commission Act showed that the matters\n     therein dealt with were not subject to the scrutiny of any\n     court of law. There was a very good reason for such aPage 18 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                  CAV JUDGMENTprovision because if the orders made undersections 8and9were not to be treated as final, the result would be that any\n      voter, if he so wished, could hold up an election indefinitely\n      by questioning the delimitation of the constituencies from\n      court to court. Although an order underSection 8or 9 of theDelimitation Commission Actand published underSection\n      10[1] of that Act is not part of an Act of Parliament, its effect\n      is the same.Section 10[4] of that Act puts such an order in\n      the same position as a law made by the Parliament itself\n      which could only be made by it underArticle 327.If we read\n      Articles 243-C, 243-K and 243-0 in place oArticle 327andsections 2[kk], 11-F and 12-BB of the Act in place ofSections 8and9of the Delimitation Act, 1950, it will be\n      obvious that neither the delimitation of the panchayat area\n      nor of the con- stituencies in the said areas and the\n      allotments of seats to the constituencies could have been\n      challenged or the Court could have entertained such\n      challenge except on the ground that before the delimitation,\n      no objections were invited and no hearing was given. Even\n      this challenge could not have been entertained after the\n      notification for holding the elections was issued. The High\n      Court not only entertained the challenge but has also gone\n      into the merits of the alleged grievances although the\n      challenge was made after the notification for the election\n      was issued on 31st August, 1994."20.   According to Ms.Shah, the notification issued by the State\nElection      Commission     as     impugned      in     the       present\nwrit-application could be said to be a 'law' relating to the\ndelimitation of the constituencies or the allotment of seats toPage 19 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                               CAV JUDGMENTsuch constituencies. According to Ms.Shah, it was held by the\nSupreme Court that neither the delimitation of the panchayat\narea or the formation of the constituencies in the said areas and\nthe allotment of seats to the constituencies could be challenged\nnor the court could entertain such challenge except on the\nground that before the delimitation, no objections were invited\nand no hearing was afforded. In short, according to Ms.Shah, the\nquestion with regard to sub-clause (b) or sub-clause (a) ofArticle\n243-Oof the Constitution has already been answered by the\nSupreme Court in the terms mentioned herein above and does\nnot require any further consideration. It is argued that since\nsub-clause (a) ofArticle 243-ZGis in the same terms as ofArticle\n243-O, the question posed with regard to sub-clause (a) ofArticle\n243-ZGis also answered by the above judgment.21.   Ms.Shah placed significant reliance on a decision of this\nHigh Court in the case of Thakore Shanabhai Gedalbhai vs.\nState Election Commission and others, (2005) 3 GLH 686, to\nfortify her submissions as regards the bar as contained inArticle\n243-Oof the Constitution of India. In Thakore Shanabhai\nGedalbhai (supra), the challenge was to the orders of the\nReturning Officer mainly on the ground that the reasons\nassigned by him for rejecting their nomination paper, i.e.\nnon-filing of a mandate of a political party along with the\nnomination paper, were extraneous to the provisions contained\nin the Act 1993 and the Rules 1994. It was argued before the\nDivision Bench on behalf of the petitioners therein that the\nscheme of the rules contained in Part-IV of the Rules neither\nprovided for filing of a mandate of a political party along with the\nnomination paper nor was it one of the grounds specified in RulePage 20 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                CAV JUDGMENT15(2) of the Rules for rejection of the nomination paper and,\ntherefore, the Returning Officer could be said to have committed\na grave illegality by rejecting their nomination paper. This Court\ndeclined to entertain the writ-application considering the bar as\ncontained inArticle 243-Oof the Constitution of India. The final\nconclusion drawn by the Court is as under :"(I)    The bar contained inArticle 243-0of the Constitution\n     against the court's interference in the electoral matters is\n     absolute and a petition filed underArticle 226of the\n     Constitution questioning the election to a Panchayat cannot\n     be entertained except after determination of the dispute in\n     an Election Petition filed in accordance with the provisions of\n     the law enacted by the State Legislature.(II)    A petition filed underArticle 226of the Constitution\n     challenging the illegal or improper rejection or acceptance of\n     nomination paper for an election to the Panchayat cannot be\n     entertained by invoking conclusion No. 3 of paragraph 32 of\n     Supreme Court's Judgement in Ashok Kumar's case (supra)\n     because any direction by the High Court in such matters\n     would impede the election process and delay finalization of\n     the election\n\n\n\n     (III)   A petition filed underArticle 226of the Constitution\n     involving challenge to the orders passed or action taken\n     after the commencement of election process cannot be\n     entertained except where direction is sought for expediting\n     the process of election.Page 21 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                            CAV JUDGMENT(IV)    An illegal or improper rejection of nomination for\n      election to the Panchayat can be challenged by filing an\n      Election Petition under Section 31 of the Panchayats Act."22.   Ms.Shah vehemently submitted that the right to vote and\nthe right to contest an election has consistently been held to be a\nstatutory right and not a fundamental right and this position\nwas reaffirmed in the judgment of the Supreme Court inDr.\nK.Krishna Murthy and others vs. Union of India and another,\nreported in (2010) 7 SCC 202, which upheld the constitutional\nvalidity of the provisions ofArticle 243-Dof the Constitution of\nIndia. It is submitted that once it has been held that the right to\nvote or to get elected is a statutory right, the rotation flows out of\na statutory provision. The Constitution, having made only an\nenabling provision, there is no violation of a fundamental right.23.   Ms.Shah           vehemently       submitted        that     the      election\nprogramme        came      to   be    declared       by   the    State     Election\nCommission by way of a Circular dated 23 rd January 2021. This\nCircular came to be issued by the State Election Commission for\nthe purpose of conducting elections in the six municipal\ncorporations, 81 municipalities, 31 district panchayats and 231\ntaluka panchayats. According to Ms.Shah, it is not correct to say\nthat the said Circular should not be construed as a notification\nissued by the State Election Commission. In any view of the\nmatter, according to Ms.Shah, even if it is not to be treated as a\nnotification, still the election process could be said to have\ncommenced with effect from 23rd January 2021. In suchPage 22 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                                CAV JUDGMENTcircumstances            also,        according        to         Ms.Shah,            these\nwrit-applications may not be entertained as any relief as prayed\nfor, if granted, may create lot of hindrances in the smooth\nconduct of the elections.24.   Ms.Shah would submit that even otherwise on merits, the\nwrit-applicants         have     no    case      worth      the    name        and       the\nwrit-applications deserve to be rejected.ANALYSIS :25.   Having heard the learned counsel appearing for the parties\nand having gone through the materials on record, two questions\nfall for our consideration : First, whether the writ-applications\nare maintainable ? In other words, whether this Court has no\njurisdiction to entertain the present writ-applications underArticle 226of the Constitution of India in view of the bar underArticle 243-Oof the Constitution of India ?                        Secondly, if the\nwrit-applications are held to be maintainable, then whether the\nimpugned notification issued by the State Election Commission\nas regards the allotment of seats could be said to be contrary to\nthe statutory provisions governing the same ?ISSUE OF MAINTAINABILITY :26.   Before we proceed to decide the first question as regards\nthe maintainability of the present writ-applications, we must\nlook into few relevant provisions of law :Page 23 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                              CAV JUDGMENTArticle 243.-In this part, unless the context otherwise\nrequires, -(f) 'population' means the population as ascertained at the\nlast preceding census of which the relevant figures have\nbeen published;Article 243-D:Reservation of Seats.(1) Seats shall be reserved for--(a) the Scheduled Castes; and(b) the Scheduled Tribes,\n\n\nin every Panchayat and the number of seats so reserved\nshall bear, as nearly as may be, the same proportion to the\ntotal number of seats to be filled by direct election in that\nPanchayat as the population of the Scheduled Castes in that\nPanchayat area or of the Scheduled Tribes in that\nPanchayat area bears to the total population of that area\nand such seats may be allotted by rotation to different\nconstituencies in a Panchayat.(2) Not less than one-third of the total number of seats\nreserved under clause (1) shall be reserved for women\nbelonging to the Scheduled Castes or, as the case may be,\nthe Scheduled Tribes.Page 24 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                CAV JUDGMENT(3) Not less than one-third (including the number of seats\nreserved for women belonging to the Scheduled Castes and\nthe Scheduled Tribes) of the total number of seats to be filled\nby direct election in every Panchayat shall be reserved for\nwomen and such seats may be allotted by rotation to\ndifferent constituencies in a Panchayat.Article 243-K.Elections to the Panchayats.-                      The\nsuperintendence, direction and control of the preparation of\nelectoral rolls for, and the conduct of, all elections to the\nPanchayats shall be vested in a State Election Commission\nconsisting of a State Election Commissioner to be appointed\nby the Governor.(2) Subject to the provisions of any law made by the\nLegislature of a State the conditions of service and tenure of\noffice of the State Election Commissioner shall be such as\nthe Governor may by rule determine:Provided that the State Election Commissioner shall not be\nremoved from his office except in like manner and on the like\nground as a Judge of a High Court and the conditions of\nservice of the State Election Commissioner shall not be\nvaried to his disadvantage after his appointment.(3) The Governor of a State shall, when so requested by the\nState Election Commission, make available to the State\nElection Commission such staff as may be necessary for the\ndischarge of the functions conferred on the State ElectionPage 25 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                  CAV JUDGMENTCommission by clause (1).(4) Subject to the provisions of this Constitution, the\n      Legislature of a State may, by law, make provision with\n      respect to all matters relating to, or in connection with,\n      elections to the Panchayats.243-O. Bar to interference by courts in electoral\n      matters. --Notwithstanding anything in this Constitution--(a) the validity of any law relating to the delimitation of\n      constituencies    or   the   allotment   of    seats       to      such\n      constituencies made or purporting to be made underarticle\n      243K, shall not be called in question in any court;(b) no election to any Panchayat shall be called in question\n      except by an election petition presented to such authority\n      and in such manner as is provided for by or under any Law\n      made by the Legislature of a State.27.   In exercise of the powers conferred by sub-section (5) of\nSection 274 read with sub-section (5) of Section 10 and\nsub-section (5) of Section 11 of the Gujarat Panchayats Act,\n1993, the Government of Gujarat framed the Gujarat Taluka and\nDistrict Panchayats Election (Manner of Allotment of Reserved\nSeats by Rotation) Rules, 1994. The relevant excerpt of the Rules\nbeing Rules 3, 4 and 5 and the 2015 Amendment thereto are\nreproduced as under:Page 26 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                 CAV JUDGMENT"3. Assignment of serial number to electoral divisions.- (1)\nEach electoral division in a taluka and each electoral\ndivision in a district shall be assigned by the Election\nCommission a name based on the name of that village the\narea of which is included in such electoral division.(2) Where an electoral division consists of more than one\nvillage, it shall be assigned the name of that village which\nhas higher population.(3) Where more than one electoral division consists of an\narea of the same village the electoral division shall be\nassigned the name of the village suffixed by serial numbers\nin accordance with the number of wards of such village\ncomprised in each of such electoral divisions, beginning with\nthe electoral division having lower serial number of wards of\nsuch village.(4) (a) The names of electoral divisions of a taluka and the\nname of electoral divisions of a district shall be separately\narranged by the Election            commission in an English\nalphabetical order: Provided that where there is more than\none village having the name of the same letter of English\nalphabets the electoral divisions of those villages shall be\ndistinguished by reference to succeeding letter of the\nalphabets of the names of such village.(b) Thereafter the electoral divisions as so arranged in thePage 27 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                               CAV JUDGMENTEnglish alphabetical order shall be assigned serial numbers\nin that alphabetical order.(5) The serial numbers assigned to the electoral divisions of\na taluka and those assigned to electoral divisions of a\ndistrict under this rule shall be known as general serial\nnumbers.4. Allotment of seats reserved for Scheduled Caste:(1) For the purpose of allotment of the number of seats\ndetermined by the State Government as reserved for the\nScheduled Castes under sub-clause (i) clause (a) of\nsub-section (5) of section 10 and sub-clause (i) of clause (a)\nof sub-section (5) of section 11 the Election Commission shall\ndetermine the electoral divisions of a taluka and those of a\ndistrict, which consists of population of the Scheduled\nCastes and such electoral division of a taluka and a district\nshall be serially arranged in accordance with the percentage\nof population of the Scheduled Castes in such electoral\ndivision beginning with the electoral division consisting of\nthe highest percentage of the population of the Scheduled\nCastes and shall be assigned serial number of SC1, SC2,\nand so on.(2) The serial numbers as so assigned shall be known as\nspecial serial numbers for the Scheduled Castes.(3) The Election 'Commission shall first allot the number ofPage 28 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                               CAV JUDGMENTseats reserved for the Scheduled Castes (including one third\nof such seats reserved for women belonging to the\nScheduled Castes) serially to the electoral divisions bearing\nspecial serial numbers for Scheduled Castes by rotation so\nhowever that preference shall be given to allotment of seats\nreserved for the women.5. As per the amendment to the 1994 Rules in 2015, a\nproviso was inserted after Rule 4, which has been\nreproduced as hereunder:Provided that in case of allotment of reserved seats by\nrotation for the district panchayat, the State Election\nCommission while allotting the seats in the taluka where\nmore than one seat is to be allotted, shall allot the odd\nnumber of seats i.e.1st, 3rd and so on to the woman\nbelonging to the Scheduled Castes ensuring that such\nallotment does not exceed the total number of reserved seats\ndetermined as per the provisions of section 11 of the Gujarat\nPanchayats Act, 1993.6. Allotment of seats reserved for Scheduled Tribes:(1) For the purpose of allotment of the number of seats\ndetermined by the State Government as reserved for the\nScheduled Tribes under sub-clause (i) of clause (a) of\nsub-section (5) of section 10 and sub-clause (i) of clause (a)\nof sub-section (5) of section 11 the Election Commission shall\ndetermine the electoral divisions of a taluka and those of aPage 29 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                               CAV JUDGMENTdistrict which consist of population of the Scheduled Tribes\nand such electoral divisions of a taluka and district shall be\nserially arranged in accordance with the percentage of\npopulation of the Scheduled Tribes in each electoral division\nbeginning with the electoral division consisting of the\nhighest percentage of the population of the Scheduled Tribe\nand shall be assigned serial number as ST1, ST2, and so\non.(2) The serial numbers as so assigned shall be known as\nspecial serial numbers for the Scheduled Tribes.(3) The Election Commission shall after having allotted the\nseats reserved for the Scheduled Castes under sub-rule (3)\nof rule 4 allot the number of seats reserved for the\nScheduled Tribes (including one third of such seats reserved\nfor women belonging to the Scheduled Tribes) serially to the\nelectoral divisions bearing special serial numbers for the\nScheduled Tribes by rotation so however that preference\nshall be given to allotment of seats reserved for the women."7. As per the amendment to the 1994 Rules in 2015, a\nproviso was inserted after Rule 5, which has been\nreproduced as hereunder:Provided that in case of allotment of reserved seats by\nrotation for the district panchayat, the State Election\nCommission while allotting the seats in the taluka where\nmore than one seat is to be allotted, shall allot the oddPage 30 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                         CAV JUDGMENTnumber of seats i.e.1st, 3rd and so on to the woman\n      belonging to the Scheduled Tribes ensuring that such\n      allotment does not exceed the total number of reserved seats\n      determined as per the provisions of section 11 of the Gujarat\n      Panchayats Act, 1993.28.   We are of the view that the law purporting to relate to the\ndelimitation of the constituencies or allotment of seats to such\nconstituencies cannot encroach upon the plenary jurisdiction\nreserved     by    the   Constitution     in    favour   of     the     Election\nCommission. In other words, the provisions ofArticle 243-Oof\nthe Constitution does not constitute an absolute bar to the\npowers of judicial review vested in the Constitutional Courts\nunderArticle 226of the Constitution of India. It is altogether\ndifferent to say that the writ court, in its discretion, may decline\nto entertain the writ-application considering that the election\nprogramme had already been declared and any interference after\nthe declaration of the election programme may create lot of\nhindrances or obstructions in the smooth conduct of the\nelection. However, it is difficult for us to take the view that the\nprovisions ofArticle 243-O(a)should be construed to impose an\nabsolute embargo on the exercise of jurisdiction underArticle\n226of the Constitution of India.29.   If the jurisdiction of the Constitutional Courts is also\nbarred, then the power of judicial review, which is the basic\nfeature of the Constitution, is deemed to have been taken away.\nThere is difference between 'power of judicial review' and 'judicial\npower'. The 'power of judicial review' is specially conferred on thePage 31 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                              CAV JUDGMENTConstitutional Courts, i.e. the High Courts and the Supreme\nCourt        under        Articles   226    and        32    of   the    Constitution,\nrespectively. The other Courts and the Tribunals created under\ndifferent enactments are conferred with 'judicial powers'. Such\nCourts and the Tribunals created under different enactments\ncannot exercise the 'power of judicial review'.30.     In    a   catena       of    decisions,        the   Supreme        Court       had\nconsidered the scope and ambit of 'judicial review'. Patanjali\nSastri, C.J. speaking for the Court in theState of Madras vs.\nV.G. Row, reported in AIR 1952 SC 196, observed (at p.199 of\nAIR):"Before proceeding to consider this question, we think it\n        right to point out what is sometimes overlooked, that our\n        Constitution contains express provision for judicial review of\n        legislation as to its conformity with the Constitution, unlike\n        in America where the Supreme Court has assumed\n        extensive powers of reviewing legislative acts under cover of\n        the widely interpreted 'due process' clause in the Fifth and\n        Fourteenth Amendments. If, then, the Courts in this country\n        face upto such important and none too easy task, it is not\n        out of any desire to tilt at legislative authority in a\n        crusader's spirit, but in discharge of a duty plainly laid upon\n        them by the Constitution."31.     While considering the validity of the Constitution (25thAmendment) Act, 1971, the theory of basic structure was\npropounded by the Supreme Court inKesavananda Bharathi vs.Page 32 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                               CAV JUDGMENTState of Kerala, reported in (1973) 4 SCC 225. Majority of the\nJudges held that the separation of powers of the legislature,\nexecutive and judiciary is one of the basic features of the\nConstitution. J.M.Shelat and A.N.Grover, JJ., held:"The function of interpretation of the Constitution being thus\n      assigned to the judicial power of the State, the question\n      whether a subject of law is within the ambit of one or more\n      powers of the legislature, conferred by the Constitution\n      would always be the question of interpretation by the\n      Constitution."32.   They observed that the power of judicial review is one of\nthe important features of the Federal Constitution. They also\nquoted with approval the opinion of Patanjali Sastri, C.J., in V.G.\nRow's case (supra) that judicial review is undertaken by the\nCourts not out of any desire to tilt as legislative authority in a\ncrusader's spirit, but in discharge of a duty plainly laid down\ntherein by the Constitution. P.Jaganmohan Reddy, J. observed\nas under:"A sovereign democratic republic, Parliamentary democracy,\n      the three organs of the State, certainly in my view constitute\n      the basic structure."33.   Hans Raj Khanna J., observed:"Our Constitution postulates Rule of law in the sense of\n      supremacy of the Constitution and the Jaws as opposed toPage 33 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                          CAV JUDGMENTarbitrariness. The vesting of power of exclusion of judicial\n      review        in    a   legislature,     including   State     Legislature,\n      contemplated byArticle 31-C, in. my opinion, strikes at the\n      basic structure of the Constitution."34.   By reading these individual Judgments in Keshavanand\nBharathi's case (supra), the consensus of opinion that has\nemerged is that the judicial review is one of the basic features of\nthe Constitution and that the Parliament has no power to amend\nthe basic structure or feature of the Constitution.35.   The constitutional validity of the Constitution                           (39thAmendment) Act, 1975, fell for the consideration of the Supreme\nCourt inSmt. Indira Nehru Gandhi vs. Raj Narain, reported in\nAIR 1975 SC 2299. Majority of the Judges declared clause (4) ofArticle 329-Aas introduced by the Constitution 39 thAmendment\nActof 1975 as unconstitutional. Khanna, J., dealing with the\ncontention of the learned Solicitor General, that according to the\njudgment       in        Keshavananda        Bharathi's    case      (supra)        no\nfundamental right is part of the basic structure of the\nConstitution, by quoting the obervations in Keshavananda\nBharthi's case (supra), held that the power of amendment underArticle 368does not include power to abrogate the Constitution\nnor does it include the power to alter the basic structure or\nframework of the Constitution. As regards the 'basic feature' of\nthe Constitution, K.K.Mathew, J., observed:"This Constitution has a basic structure comprising the three\n      organs of the Republic: the Executive, the Legislature, and\n      the Judiciary ........... Neither of these three separate organsPage 34 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                 CAV JUDGMENTof the Republic can take over the function assigned to the\n      other. This is the basic structure or scheme of the system of\n      Government of the Republic laid down in this Constitution\n      whose identity cannot, according to the majority view in\n      Keshavananda's case, be changed even by resorting to Art.368."36.   Y.V.Chandrachud, J., held:"Basic structure', by the majority Judgment is not a part of\n      the fundamental rights nor indeed a provision of the\n      Constitution. The theory of basic structure is woven out of\n      the conspectus of the Constitution and the amending power\n      is subject to it because it is a Constituent power."37.   The Constitution (42ndAmendment) Act, 1976, which\nadded Clauses (4) and (5) toArticle 368placing Constitutional\namendments beyond the purview of the judicial review, was\nchallenged inMinerva Mills Ltd. vs. Union of India, reported in\nAIR 1980 SC 1789. The Constitution Bench declared new\nclauses (4) and (5) Articles 368 as unconstitutional holding:"A limited amending power is one of the basic features of\n      the Constitution and therefore the limitations on the power\n      cannot be destroyed. In other words, Parliament cannot;\n      underArt. 368expand its amending power so as to acquire\n      for itself the right to repeal or abrogate the Constitution or to\n      destroy its basic and essential features."Page 35 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                 CAV JUDGMENT38.   When the Constitutionality of sub-clause (d) of clause (2) ofArticle 323-Aof the Constitution fell for the consideration, a Full\nBench of the Andhra Pradesh High Court in S.Harinath v. State\nof H.P., (1993) 2 Andh LT 471, considering the decisions referred\nto above, held:"From a close examination of the views expressed by the\n      majority in Keshavananda (2) (supra) we get a clear picture\n      that the power of Parliament underArt. 368to amend the\n      Constitution does not extend to abrogating the basic\n      features of the Constitution. What are integral to the\n      Constitution cannot be destroyed by Parliament in exercise\n      of its constituent power underArt. 368.Even though the\n      language employed inArt. 368is wide, the nature of the\n      constituent power confined in Parliament is subject to the\n      aforesaid limitations. It is, therefore, followed that not being\n      a sovereign body with unlimited powers, whatever powers\n      are confided in it must be exercised within the specified\n      limitations. What it can do in exercise of its constituent\n      power, it cannot do in exercise of legislative power. The\n      power of judicial review is a basic feature of the Constitution\n      and an integral part of our Constitutional system. The\n      independence of the Constitutional Courts, the Supreme\n      Court and the High Courts, is assured by the Constitution\n      and the power of judicial review is vested in them."39.   In S.Fakruddin (supra) the vires of the rules relating to the\nconduct of Elections of the Members and the Members of the\nZilla Parishads fell for the consideration of a Special Full Bench\nconsisting of Five Judges of the Andhra Pradesh High Court.Page 36 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                 CAV JUDGMENTDealing with the contention thatArticle 243-Ointroduced by\nConstitution (73rdAmendment) Act, 1992, bars interference by\nCourts in electoral matters, it was held:"A constitution amendment which tends to take away the\n      Constitutional Courts' power that is the power of the High\n      Court underArt. 226of the Constitution, shall be invalid.\n      There can be no matter in the hands of the legislature in its\n      function as the law maker which will be kept out of the\n      scrutiny of the Courts however limited that scrutiny be. Even\n      the conservative view that if there is an alternative effective\n      and efficient mechanism for judicial review which is as\n      independent as the High Court, its power underArt. 226of\n      the Constitution will not be available leaves scope for the\n      court to see whether the mechanism is such that the Court\n      should refrain and not exercise its jurisdiction, court is\n      inclined to extend this principle and hold as respects the\n      matters which are sought to be excluded from the judicial\n      review underArt. 243-Oof the Constitution which has been\n      brought in by the 73rd Amendment."40.   As regards the power of judicial review of the High Courts\nand the Supreme Court, it was observed:"The consesus of the opinion is that judicial review is a\n      basic feature except in respect of matters which are\n      specifically excluded by the Constitution as originally\n      enacted and that "Courts act as the real interpreters of the\n      real will of the people ...... they perform an essential judicial\n      function .......Page 37 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                     CAV JUDGMENTThe basic features of the Constitution stand projected, forArt. 32, the power of the Supreme Court, cannot be taken\n        away and its power underArt. 136can be a proper\n        safeguard of judicial review of any adjudication by the\n        alternative authority or forum, provided however it is an\n        effective alternative institutional mechanism or arrangement\n        of judicial review. It is through the power of judicial review\n        conferred on an independent institutional authority such as\n        the High Court that the rule of law is maintained, and every\n        organ of the State is kept within the limits of the law."41.     Thus, the Full Bench, in S.Fakruddin (supra), squarely\nconsidered this issue and held that the provisions ofArticle\n243-O(a)cannot be construed to impose any such absolute\nembargo on the exercise of jurisdiction underArticle 226of the\nConstitution. The Full Bench also held that the Legislature of the\nState     is    quite     competent   to   make   laws     concerning           the\ncomposition of Panchayats or delimitation of constituencies or\nallotment of seats, but such competence is subject to the\nprovisions of the Constitution as stipulated underArticle 243-Kof the Constitution. This means that the State Legislature can\nmake laws in addition to what has been preserved for it underArticle 243-Cof the Constitution and not extending the matters\nwhich are left to the exclusive control of the State Election\nCommission underArticle 243-K(1)of the Constitution. This\nmeans that if the State Legislatures were to make any law,\nusurping to itself the control of preparation of the electoral roll\nor for conduction of elections to Panchayats, such a law, wouldPage 38 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                              CAV JUDGMENTthen, encroach upon the jurisdiction which the Constitution has\nreserved to the State Election Commission. Such a law,\naccording to us, cannot claim immunity from challenge based on\nthe provisions ofArticle 243-Oof the Constitution. This Court,\nexercising its extraordinary jurisdiction underArticle 226of the\nConstitution, would then not only be entitled to but be\nduty-bound to examine the validity of such a contention.42.   In Smt. Bharati Reddy vs. The State of Karnataka and\nothers, (Civil Appeal No.10587 of 2017 arising out of SLP (Civil)\nNo.17059 of 2017, decided on 17.8.2017), the Supreme Court\nhad the occasion to consider clause (b) ofArticle 243-Oof the\nConstitution. In the said case, the appellant before the Supreme\nCourt was elected as a member of the district panchayat, which\nwas reserved for General (Women) category in the election held\non 20th February 2016. The State Government issued a\nnotification reserving the post for Backward Class (B) (Women).\nThe election of the appellant was challenged before the High\nCourt on the ground that she did not belong to Backward Class\n(B) and that she had contested the election on the basis of a false\ncertificate issued by the Tahsildar. A preliminary objection was\nraised by the appellant before the High Court as regards the\nmaintainability of the writ petition having regard to the bar\ncontained in clause (b) ofArticle 243-Oof the Constitution. The\nSingle Judge of the High Court rejected the writ-application on\nthe ground of maintainability in view of the bar contained inArticle 243-Oof the Constitution. The matter went before the\nSupreme Court. The Supreme Court took the view that the\npower    of    judicial    review     underArticle     226/227of    the\nConstitution       of   India   being      an       essential     feature        of    thePage 39 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                  CAV JUDGMENTConstitution, neither be tinkered with nor eroded. We quote the\nrelevant observations as under:"9.     A bare reading of sub-section (b) ofArticle 243-Owould show that election to any panchayat cannot be called\n     in question except by an election petition presented to such\n     authority and in such manner as is provided for by or under\n     any law made by the Legislature of a State.10.     Adhyaksha and Upadhyaksha of the Zilla Panchayat\n     are elected in accordance with Section 177 of the Karnataka\n     Gram Swaraj and Panchayat Raj Act, 1993 and Rule 7 of\n     Karnataka Panchayat Raj (Election of Adhyaksha and\n     Upadhyaksha of Zilla Panchayat) Rules, 1994. The said\n     Rule reads as under:"7. Election dispute petition: (1) any member of Zilla\n             panchayat, in whose jurisdiction the Zilla Panchayat\n             lies, can question the election of Adhyaksha and\n             Upa-Adhyaksha before the said District Judge, within\n             15 days from the date of declaration of election result\n             by depositing Rs 2,000/- alongwith an Election\n             Petition. It is clear from this Rule that a non-member of\n             Zilla Panchayat cannot maintain an election petition."11.     Learned senior counsel for the appellant contended\n     that in spite ofArticle 226of the Constitution, the High Court\n     had no jurisdiction to entertain the writ petition in view of\n     the bar contained in clause (b) ofArticle 243-Oof thePage 40 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                 CAV JUDGMENTConstitution. It was argued that the aggrieved person will\nhave to avail himself the remedy provided in Rule 7 and\ncannot approach the High Court in the first instance underArticle 226of the Constitution of India.12.     We do not find any merit in this contention. We are of\nthe view that a voter in a particular panchayat cannot be\nrendered remediless if he is aggrieved by the election of the\nAdhyaksha of the Panchayat.In His Holiness Kesavananda\nBharati Sripadagalvaru v. State of Kerala and Anr. (1973) 4\nSCC 225, a thirteen Judge Bench of this Court held thatArticle 368of the Constitution does not enable the\nParliament to alter the basic structure or framework of the\nConstitution. The basic structure of the Constitution could\nnot be altered by any constitutional amendment and it was\nheld in unambiguous terms that one of the basic features is\nthe existence of constitutional system in judicial review. This\nview was followed by a Constitution Bench inMinerva Mills\nLtd. and Ors. v. Union of India and Ors. (1980) 3 SCC 625.In L. Chandra Kumar v. Union of India and Ors. (1997) 3\nSCC 261, a seven Judge Bench of this Court has held that\njurisdiction conferred upon the High Courts under Articles\n226/227 of the Constitution and upon the Supreme Court\nunderArticle 32of the Constitution is a part of the inviolable\nbasic structure of our Constitution. While this jurisdiction\ncannot be ousted, other courts and tribunals may perform a\nsupplementary role in discharging the powers conferred by\nArticles 226/227 andArticle 32of the Constitution of India.\nIt has been held as under:Page 41 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                             CAV JUDGMENT"We, therefore, hold that the power of judicial review\n        over legislative action vested in the High Courts underArticle 226and in the Supreme Court underArticle 32of the Constitution is an integral and essential feature\n        of the Constitution, constituting part of its basic\n        structure. Ordinarily, therefore, the power of High\n        Courts    and     the       Supreme         Court     to    test      the\n        constitutional validity of legislations can never be\n        ousted or excluded." In I.R. Coelho (dead) by Lrs. v.\n        State of Tamil Nadu (2007) 2 SCC 1, a Bench of nine\n        Judges has again held that power of judicial review is\n        the part of the basic structure of the Constitution. The\n        power to amend cannot be equated with the power to\n        frame the Constitution."13.     It is thus clear that power of judicial review under\nArticles 226/227 of the Constitution is an essential feature\nof the Constitution which can neither be tinkered with nor\neroded. Even the Constitution cannot be amended to erode\nthe basic structure of the Constitution. Therefore, it cannot\nbe said that the writ petition filed by respondent Nos. 6 to 9\nunderArticle 226of the Constitution is not maintainable.\nHowever, it is left to the discretion of the court exercising the\npower under Articles 226/227 to entertain the writ petition.14.     In Charan Lal Sahu (supra) relied upon by the learned\nsenior      counsel,    the     question      for    consideration          was\nmaintainability of an election petition presented by a\ncandidate challenging the election to the Office of the\nPresident of India who has not been duly nominated underPage 42 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                         CAV JUDGMENTSection 14Aof the Presidential andVice-Presidential\n      Elections Act, 1952. This decision has no application to the\n      facts of the present case.15.     As noticed above, though respondent Nos. 6 to 9 are\n      the voters are not the members of the Zilla Panchayat. They\n      are aggrieved by the election of the appellant to the office of\n      the Adhyaksha. They cannot challenge the election of the\n      appellant to the office of Adhyaksha by filing an election\n      petition as they are not the members of the Zilla Panchayat\n      in question. In our view, a voter of the Zilla Panchayat who\n      is not a member cannot be denied an opportunity to\n      challenge the election to the office of Adhyaksha under\n      Articles 226/227 of the Constitution. Therefore, we hold that\n      the writ petition filed by respondent Nos. 6 to 9 before the\n      High Court is maintainable."43.   We may clarify in context with the decision of the Supreme\nCourt referred to above that ultimately the Supreme Court\nobserved that it would be within the discretion of the court\nwhether to entertain a writ-application or not ? In other words,\nalthough      the       Supreme   Court       took   the     view       that      the\nwrit-applications could be said to be maintainable, yet the\nwrit-applicants may not be entitled to any discretionary relief if\nthe petitions are filed at a belated stage and the elections are\nimminent.44.   The principle that the Judges of the Constitutional Courts\nhave not only powers but also duty to pronounce upon thePage 43 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                        CAV JUDGMENTvalidity of laws under our constitutional set up, was highlighted\nby the learned Chief Justice by observing thus :"...Our Constitution is founded on a nice balance of power\n      among the three wings of the State viz., the Executive, the\n      Legislature and the Judiciary. It is the function of the\n      Judges, nay their duty, to pronounce upon the validity of\n      laws. If Courts are totally deprived of that power, the\n      fundamental rights conferred upon the people will become a\n      mere adornment because rights without remedies are as\n      writ in water. A controlled Constitution will then become\n      uncontrolled."45.   In the precise context of the provisions ofArticle 243-Oof\nthe Constitution, the Full Bench of the Andhra Pradesh High\nCourt, in S.Fakruddin (supra), after considering the decisions of\nthe Hon'ble Supreme Court inN.P. Ponnuswami vs. Returning\nOfficer, NamakalAIR 1952 SC 64;The State of Madras vs. V.G.\nRow- AIR 1952 SC 196; andKihota Hollohon vs. Zachilhu- AIR\n1993 SC 412, held that the bar inArticle 243-Oof the\nConstitution is to the ordinary jurisdiction of the courts and not\nto the extraordinary jurisdiction under Articles 136 and 226 of\nthe Constitution. The Full Bench did not declareArticle 243-Oof\nthe Constitution as unconstitutional but clarified that it does not\ntake away the power of the High Court underArticle 226of the\nConstitution to examine the validity of any law relating to\nelections,    including   delimitation         of   the   constituencies           or\nallotment of seats to such constituencies made or purporting to\nbe made underArticle 243-Kof the Constitution.Page 44 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                       CAV JUDGMENT46.    The Full Bench also noted the clear statement to this effect\nin the judgment of the Hon'ble Supreme Court in the case ofLakshmi Charan Sen vs. A.K.M. Hassan Uzzaman, reported in\nAIR 1985 SC 1233, that the High Court concerned acted within\nits jurisdiction in entertaining a writ petition and in issuing a\nwrit Rule Nisi since the petition questioned the vires of the laws\nof election law. The Supreme Court, no doubt, held in this case\nthat though the jurisdiction is undoubtedly vested in the High\nCourt, the High Court should loathe to make any orders, interim\nor otherwise which have the tendency or effect of postponing the\nelection, which is reasonably imminent and concerning which its\nwrit jurisdiction is invoked. The Apex Court held that the fact\nthat the Court has the power to do a certain thing, does not\nmean      that     it    must   exercise     that    power    regardless          of\nconsequences.47.    We have to our advantage a very erudite and exhaustive\njudgment on the subject delivered by the High Court of\nAllahabad in the case ofSant Ram Sharma vs. State of U.P.\nrendered in Public Interest Litigation (PIL) No.54764 of 2015,\ndecided on 9th October 2015. In the said case, the issue raised\nbefore the court pertained to the constitutional validity of the\nUttar Pradesh Panchayat Raj (Reservation and Allotment of Seats\nand Offices) (Tenth Amendment) Rules, 2015, Rules of 2015.\nThese Rules were published in the Government Gazette on 16 th\nSeptember 2015. The Rules amended the provisions of the Uttar\nPradesh Panchayat Raj (Reservation and Allotment of Seats and\nOffices) Rules, 1994, Rules of 1994.                The amended        Rules ofPage 45 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                          CAV JUDGMENT2015 were challenged on the ground that they were ultra viresArticle 243-D,Article 243-Kand the provisions ofSection\n11-A(5)and Section 12(5) of the Uttar Pradesh Panchayat Raj\nAct,   1947.       A     preliminary    objection      was      raised       to     the\nmaintainability of the writ-applications on the ground thatArticle 243-O(a)of the Constitution contains a bar on the validity\nof any law relating to the delimitation of the constituencies or the\nallotment of seats to such constituencies, made or purporting to\nbe made underArticle 243-Kbeing called into question in any\ncourt. The Division Bench of the Allahabad High Court, speaking\nthrough the Hon'ble Chief Justice Dr.D.Y.Chandrachud (As His\nLordship then was), observed that the constitutional challenge to\nthe validity of the Rules of 2015 would fall for consideration only\nifArticle 243-Ois held not to bar the court in the exercise of its\njurisdiction underArticle 226from considering such a challenge.\nThe Hon'ble Court took notice of the fact that the election\nprocess for holding the elections to the Gram Panchayats in the\nState of Uttar Pradesh had not yet commenced and, therefore,\nthe bar under clause (b) ofArticle 243-Owas not yet attracted.\nHis Lordship, after an exhaustive consideration of Part IX of the\nConstitution and the statutory provisions in the State of Uttar\nPradesh, took the view that the batch of writ-applications were\nmaintainable andArticle 243-Oof the Constitution was not a bar\nfor the court to entertain the writ-applications. We quote the\nrelevant observations thus :"Article 243-Ofinds a parallel in the provisions ofArticle\n       243ZG (which forms a constituent part of Part IXA dealing\n       with the municipalities)andArticle 329 (forming part of Part\n       XV     which      deals   with    the      elections).Article      243-OPage 46 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                          CAV JUDGMENTcommences with a non-obstante clause which operates\n'notwithstanding anything contained in the Constitution'.Under clause (a), where a law is made or is purported to be\nmade underArticle 243K, and the law relates to the\ndelimitation of the constituencies or to the allotment of seats\nto such constituencies, the validity of such a law cannot be\ncalled into question in any court. Clause (b) contains a bar\nby which an election to a panchayat cannot be called into\nquestion except in the form of an election petition presented\nto an authority in a manner which is provided by a law\nmade by the State Legislature.In the present case, the arguments before this Court have\nproceeded on the basis, which is undisputed, that as yet no\nnotification      has    been   issued      by    the     State       Election\nCommission declaring elections to gram panchayats. Hence\nthe issue which has then canvassed by the Advocate\nGeneral before the Court is in relation to the bar contained in\nclause (a) ofArticle 243-O.In order for the bar underArticle\n243-Oto apply, two conditions must be fulfilled. The first\ncondition is that the law must be made or must be purported\nto be made underArticle 243K.Clause (4) ofArticle 243Kempowers the state legislatures, subject to the provisions of\nthe Constitution, to make provisions with respect to all\nmatters relating to or in connection with elections to the\npanchayats. The first condition for the applicability of clause(a) ofArticle 243-Ois, hence, that the law must be made by\nthe legislature of a state underArticle 243K.The second\ncondition is that the law must relate to the delimitation of\nconstituencies      or    the    allotment       of     seats      to      such\nconstituencies. Clause (4) ofArticle 243Kconfers a widePage 47 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                                     CAV JUDGMENTpower upon the state legislature to make provisions with\n      respect to all matters relating to or in connection with the\n      elections to the panchayats. While engrafting the bar in\n      clause (a) ofArticle 243-O, the Constitution has not excluded\n      the jurisdiction of the High Courts to test the validity of any\n      law whatsoever, but a law of a specific nature, namely, a\n      law which relates to the delimitation of constituencies or\n      allotment of seats. Moreover, before the bar can be\n      attracted, there must be a law which must be made by the\n      legislature of a state. That is the clear intendment of the\n      reference toArticle 243KinArticle 243-O.If the intent of the\n      Constitution was to include within the constitutional sweep\n      of the bar, every law, including an order, bye-law, rule,\n      regulation, notification, custom or usage having in the\n      territory of India, the force of law [that being the definition of\n      the expression 'law' inArticle 13 (3) (a)], such a provision\n      would have been made in clause (a) ofArticle 243-O.By\n      referring         to   a        law     relating      to   the      delimitation          of\n      constituencies             or     the      allotment       of     seats       to      such\n      constituencies made or purporting to be made underArticle\n      243K, the Constitution has carefully imposed a bar confined\n      to that area alone. Moreover, the power of judicial review\n      underArticle 226has consistently been held to be a part of\n      the basic structure of the Constitution."48.   In the aforesaid context, the Hon'ble Court observed that\nthe purpose of the bar under clause (a) ofArticle 243-Ois to\nimpart sanctity to the legislation relating to the delimitation of\nthe constituencies and allotment of seats to the constituencies.Page 48 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                               CAV JUDGMENTMoreover, the disputes over elections have to be addressed in the\nform of an election petition after the result is declared. That is\nwhy the provisions contained in clause (a) ofArticle 243-Ohave\nstructured the nature and extent of the bar by providing that it\nis only in respect of a law falling within the ambit ofArticle\n243-Kand relating to the delimitation of the constituencies or to\nthe allotment of seats to those constituencies, that the bar would\nstand attracted. Their Lordships held that the bar cannot\ndisplace a challenge to the constitutional validity of any\nsubordinate legislation.49.   The principal argument canvassed on behalf of the\nrespondents that the impugned notification issued by the first\nrespondent, i.e. the State Election Commission, relating to the\ndelimitation of the constituencies and allotment of reserved\ncategory seats to different constituencies in the Tapi District\nPanchayat and the panchayats of other districts are matters\nrelating to elections issued underArticle 243-K(1)of the\nConstitution of India and, therefore, the same cannot be called\nin question underArticle 226of the Constitution of India in view\nof the bar underArticle 243-Oof the Constitution of India, is\nunacceptable to us. The impugned notification relating to the\ndelimitation and allotment of reserved category seats to different\nconstituencies came to be issued before the issue of programme\nof elections by the respondent. It is not in dispute that the first\nrespondent - State Election Commission has issued the Circular\nwith respect to the programme of elections. At the same time, it\nis also not in dispute that the State Election Commission had\nnot issued the Notification till the date this Court heard the\nmatters. The term 'election' referred to inArticle 243-Krelates toPage 49 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                        CAV JUDGMENTthe proceeding commencing from the date of notification of\nelections till the date of declaration of results. In such\ncircumstances,         the   impugned     notification    relating        to    the\ndelimitation of the constituencies and allotment of reserved\ncategory seats to different constituencies are not the matters\nrelating to the proceedings commencing from the date of\nnotification of elections till the date of declaration of results.Article 243-O(a)of the Constitution specifies that the validity of\nany law relating to the delimitation of the constituencies or\nallotment of seats to such constituencies cannot be called in\nquestion in any court. There is no reference inArticle 243-Owith\nregard to the word 'rotation'. The absence of the word 'rotation'\ninArticle 243-Oof the Constitution makes it clear that there is\nno bar for the courts to exercise its judicial review in the matter\nof allotment of seats by rotation to different constituencies. At\nthis stage, we must look into the decision of the Supreme Court\nin the case of Ashok Kumar (supra). In this case, the Election\nCommission of India announced the programme for the general\nelection to constitute the Thirteenth Loksabha. After the\ncommencement of the process of election, two writ petitions were\nfiled before the High Court of Kerala challenging the validity of\nthe election notification issued by the Election Commission of\nIndia. The High Court granted an interim order by exercising its\npower underArticle 226of the Constitution of India staying the\ncounting of votes pending the disposal of the writ petitions.\nAgainst this interim order granted by the High Court, the\nElection Commission of India filed the SLPs before the Supreme\nCourt of India. The Supreme Court allowed the SLPs and\nset-aside the interim order passed by the Kerala High Court. In\nthe case on hand before us, the State Election Commission hasPage 50 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                                CAV JUDGMENTnot issued any notification commencing the process of election.\nIn the writ-applications before us, the notification relating to the\ndelimitation and allotment of seats to different constituencies is\ncalled in question. The Supreme Court, in Ashok Kumar (supra),\nheld in paragraphs 31 and 32 as under :"31.     The      founding     fathers         of   the   Constitution         have\n     consciously employed use of the words "no election shall be\n     called in question" in the body ofArticle 329(b)and these\n     words provide the terminative test for attracting applicability\n     ofArticle 329(b).If the petition presented to the Court "calls\n     in question an election" the bar ofArticle 329(b)is attracted.\n     Else it is not.32. For convenience sake we would now generally sum up\n     our conclusion by partly restating what the two Constitution\n     Benches have already said and then adding by clarifying\n     what follows therefrom in view of the analysis made by us\n     hereinabove:(1)     If   an    election,    (the     term       election    being       widely\n     interpreted to as to include all steps and entire proceedings\n     commencing from the date of notification of election till the\n     date of declaration of result) is to be called in question and\n     which questioning may have the effect of interrupting,\n     obstructing or protracting the election proceedings in any\n     manner, the invoking of judicial remedy has to be postponed\n     till after the completing of proceedings in elections.Page 51 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                 CAV JUDGMENT(2)     Any decision sought and rendered will not amount to\n"calling in question an election" if it subserves the progress\nof the election and facilitates the completion of the election.\nAnything done towards completing or in furtherance of the\nelection proceedings cannot be described as questioning the\nelection.(3)     Subject to the above, the action taken or orders issued\nby Election Commission are open to judicial review on the\nwell-settled parameters which enable judicial review of\ndecisions of statutory bodies such as on a case of mala fide\nor arbitrary exercise of power being made out or the\nstatutory body being shown to have acted in breach of law.(4)     Without interrupting, obstructing or delaying the\nprogress of the election proceedings, judicial intervention is\navailale if assistance of the Court has been sought for\nmerely to correct or smoothen the progress of the election\nproceedings, to remove the obstacles therein, or to preserve\na vital piece of evidence if the same would be lost or\ndestroyed or rendered irretrievable by the time the results\nare declared and stage is set for invoking the jurisdiction of\nthe Court.(5)     The Court must be very circumspect and act with\ncaution while entertaining any election dispute though not\nhit by the bar ofArticle 329(b)but brought to it during the\npendency of election proceedings. The Court must guard\nagainst any attempt at retarding, interrupting, protracting or\nstalling of the election proceedings. Care has to be taken toPage 52 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                CAV JUDGMENTsee that there is no attempt to utilise the Court's indulgence\n      by filing a petition outwardly innocuous but essentially a\n      subterfuge or pretext for achieving an ulterior or hidden end.\n      Needless to say that in the very nature of the things the\n      Court would act with reluctance and shall not act, except on\n      a clear and strong case for its intervention having been\n      made out by raising the pleas with particulars and precision\n      and supporting the same by necessary material".In view of the law laid down by the Supreme Court in Ashok\n      Kumar's case, there is no bar for this Court to entertain the\n      writ petitions underArticle 226of the Constitution before\n      us."50.   We may also refer to and rely upon a Division Bench\ndecision of the Karnataka High Court in the case of A.Ramdas\nvs. State of Karnataka, ILR (2001) Karnataka 5354. The High\nCourt held as under :"17. First attending to the objection raised regarding\n      jurisdiction of this Court to entertain pleas of constitutional\n      invalidity of the impugned notification based onArticle\n      243-ZG, Section 21(1A) of the Municipal Act,Section 13(1A)of the Corporation Act, in our considered opinion, in view of\n      the pronouncement of the Supreme Court in the case ofL.Chandra Kumar v. Union of India, the above provisions\n      sought to ouster the jurisdiction of the Court cannot apply to\n      High Courts and the Supreme Court since if any such\n      interpretation is sought to be put, the provisions may factPage 53 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                     CAV JUDGMENTthe risk of being declared unconstitutional. In para 99 of the\n      judgment, it has been declared by the Supreme Court that -"The jurisdiction conferred upon the High Court underArticle 226and227of the Constitution, and upon the\n              Supreme Court underArticle 32of the Constitution in\n              part of the innoviolable         basic   structure        of our\n              constitution. While this jurisdiction cannot be ousted,\n              the other Courts and Tribunals may perform a\n              supplemental role in discharging the powers conferred\n              byArticle 226and227and32of the Constitution.""51.   As noted above, the argument canvassed on behalf of the\nrespondents is that the impugned notification falls within the\nambit of 'law' as held by the Supreme Court in the case of\nPradhan Sangh Kshettra Samiti (supra).52.   We take notice of the fact that in the case of Pradhan\nSangh Kshettra Samiti (supra), the decision of the Supreme\nCourt inMeghraj Kothari vs. Delimitation Commission, AIR 1967\nSC 669, has been considered and discussed, wherein it was held\nthat an order made by the Delimitation Commission underSection 9and published as a Notification underSection 10(1)of\nthe Delimitation Commission Act, 1962, was a 'law' relating to\ndelimitation underArticle 327and could not be questioned in\nany court because of the express provision ofArticle 329(a)of\nthe Constitution of India.Page 54 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                  CAV JUDGMENT53.   We are afraid, it is difficult for us to accept the argument\ncanvassed on behalf of both the learned counsel appearing for\nthe respondents as regards the impugned notification falling\nwithin the ambit of 'law'. An identical argument was canvassed\nbefore a Division Bench of the Kerala High Court in the case ofV.Kunhabdulla and another vs. State of Kerala and others,\nreported in AIR 2000 Kerala 376.              The Kerala High Court\nnegatived the contention holding as under :"We may now proceed to consider the second limb of the\n      contention of the respondents, viz. that an order passed by\n      the Election Commission will have force of 'law' when\n      published in the Gazette and in that view the same be 'law'\n      for the purpose ofArticle 243(c)of the Constitution and as\n      such beyond challenge before any Court of Law. Much\n      reliance was placed on the decision of the Supreme Court inMeghraj Kothari v. Delimitation Commission, AIR 1967 SC\n      669 wherein it was held that an order made by the\n      Delimitation Commission underSection 9and published as\n      a notification underSection 10(1)of the Delimitation\n      Commission Act, 1962 was a 'law' relating to delimitations\n      underArticle 327and could not be questioned in any Court\n      because of the express provisions ofArticle 329(a).Having\n      considered the aforesaid decision we are afraid the same\n      will be of no assistance to the respondents in advancing\n      their case before us. Of course, it is true thatSection 10(1)of\n      the Delimitation Act, 1962 provides that "upon publication in\n      the Gazette of India every such order shall have the force of\n      law and shall not be called in question in any Court of Law.However, in the Act what is provided underSection 10(3)isPage 55 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                                CAV JUDGMENTthat the order made by the Authorised Officer shall not be\ncalled in question in any Court of Law. UnderSection 10Aor\nunderSection 10(3)of the Act nothing is provided to the\neffect that the order will have force of law after it is\npublished in the gazette. The decision in Meghraj Kothari,\nAIR 1967 SC 669 (supra) is clearly distinguishable since the\nprovision         considered    therein        isSection    10(2)of    the\nDelimitation        Commission         Act,         1962   which        expressly\nprovided that the delimitation order when published in the\ngazette shall have the force of law. In paragraph 16 of the\njudgment it was, therefore, held that an order underSection\n8or 9 and published underSection 10(1)would not be\nsaved merely because of the use of the expression "shall not\nbe called in question in any Court." But if by the publication\nof the order in the Gazette of India it is to be treated a law\nmade underArticle 327,Article 329would prevent any\ninvestigation by any Court of law. However, as there is no\nprovision inSection 10Athat the order passed by the\nElection Commission will have force of law when published\nin the Gazette, the same will not be law for the purpose ofArticle 243(o)and therefore a writ petition preferred underArticle 226will be perfectly maintainable. The reliance\nplaced       by     the   respondents          onMeghraj        Kothari        v.\nDelimitation Commission(AIR 1967 SC 669) (supra) is\ntherefore thoroughly misplaced. That apart it stands to\nreason that the order of de limitation pasded by the District\nCollector after undertaking a lengthy exercise. thereby\nexhaust-ing the power relating to delimitation should enjoy\ncomplete immunity from being called in question in any\nCourt of Law (videSection 10(31 of the Act) much less by aPage 56 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                  CAV JUDGMENTlesser authority like Election Commission whose only power\n      is to rectify errors apparent on the face of the record (vide.Section 11of the Act) and not to sit in judgment over the\n      order of the Collector like an appellate or revisional\n      authority.Section 10(3)thus gives finality to the order\n      passed by the Collector underSection 10(1)which cannot be\n      touched subsequently by the Election Commission (except to\n      correct errors apparent on the face of the record as enjoined\n      underSection 11of the Act) under the purported exercise of\n      the power to review conferred underSection 10Aadded by\n      Act 13/2000. An order passed underSection 10Adoes not\n      enjoy a simlar protection provided for an order passed\n      underSection 10(1)of the Act. No finality is attached to the\n      order passed by the Election Commission underSection 10Aand no bar is provided so as to prevent a challenge of the\n      order underArticle 226.The net result therefore, is that the\n      bar underArticle 243(o)of the Constitution is not attracted\n      to the facts of the present case. In this context it is pertinent,\n      to note that the bar underArticle 243(o)necessarily\n      pre-supposes the existence of a valid law. If the law is\n      vulnerable to attack under the Constitution being offensive\n      toArticle 14and similar provisions of the Constitution such\n      law cannot claim immunity from judicial review underArticle 243(o)(a)."54.   We are in respectful agreement with the view taken by the\nDivision Bench of the Kerala High Court as referred to above.55.   We also have to our advantage one decision of the Delhi\nHigh Court in the case of Ramesh Dutta and others vs. StatePage 57 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                          CAV JUDGMENTElection Commission and others, reported in 2007 (144) DLT286. The litigation before the Delhi High Court was one relating\nto the reservation of seats of Councillors in the Municipal\nCorporation of Delhi for Scheduled Castes and women. The\nchallenge in the said case was to the notification issued by the\nElection Commissioner, whereby the number of seats to be\nreserved for women belonging to the Scheduled Castes from\namongst the seats reserved for the Scheduled Castes were\ndetermined to be 16 and the number of seats for women\n(General) from amongst the unreserved seats to be 76. The\nchallenge was on manifold grounds. The challenge was resisted\nby the State Election Commission for the National Capital\nTerritory of Delhi on two counts. First, on the issue of\nmaintainability of the writ-applications in view of the provisions\nofArticle 243-ZGof the Constitution, secondly, on the ground\nthat the criterion adopted by the State Election Commission was\nobjective and could not have been faulted and had been\nuniformly followed in allotting the seats for the Scheduled Castes\nand women.56.   On the issue of maintainability, the Delhi High Court held\nas under:"17. Coming       back   to   the        question   of     whether         the\n      Notification of 17.02.2007 is "law" as is referred to inArticle\n      243ZAand243ZGof the Constitution, I find that the "law"that is referred to inArticle 243ZAis a law made by a\n      legislature of a State. The notification dated 17.02.2007 has\n      been issued, not by a legislative body, but by the exercise ofPage 58 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                                   CAV JUDGMENTa power under a statutory provision for issuance of such a\nnotification. So, though in the wider sense, the said\nnotification may fall within the ambit of "law" as is\ncommonly understood, it would not be "law made by a\nlegislature of a State". An examination of the issue of\nwhether the notification was issued in exercise of a\nlegislative function or an administrative function, may not be\nnecessary, inasmuch asArticle 243ZAof the Constitution\nspeaks of a "law made by a legislature" and not a law made\nby a delegate in exercise of a legislative function under a\nparticular statute. However, since this issue was discussed\nin the course of arguments, it would be instructive to note\nthat the Supreme Court in the case ofUOI v. Cynamide India\nLimited(1987) 2 SCC 720 observed that while an attempt to\ndraw       a      distinct        line     between      a     legislative          and\nadministration functions has been said to be "difficult in\ntheory and impossible in practice", it would be necessary\nthat the line is sometimes drawn as different legal rights\nand consequences may follow. The Supreme Court was of\nthe view that the distinction between the two has usually\nbeen      expressed          as     "one      between       the     general        and\nparticular". A legislative act involves the creation and\npromulgation of a general rule of conduct without reference\nto particular cases; whereas, an administrative act is the\nmaking of and issuance of a specific direction or the\napplication of a general rule to a particular case in\naccordance with the requirements of policy. The Court\nreiterated that legislation is a process of formulating a\ngeneral rule of conduct without referring to particular cases\nand usually operating in the future and that administrationPage 59 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                 CAV JUDGMENTis the process of performing particular acts, of issuing\nparticular orders or of making decisions which apply general\nrules to particular cases.18.     Viewed in this light, it becomes immediately clear that\nthe provisions of the DMC Act formulate the general rule for\nde-limitation, number of seats to be reserved for Scheduled\nCastes and women, the possibility of rotating such seats\netc. The specific and particular orders have been left to the\nCentral Government. That has been done by virtue of\nnotifications issued from time to time. The Notification dated\n17.02.2007 is one such Notification. It relates to a particular\nsituation applying the general Rules prescribed under the\nDMC Act. Therefore, in my view, the impugned Notification of\n17.02.2007 would not fall within the description of a\nNotification having been issued in exercise of a legislative\nfunction.19.     In this connection, the Constitution Bench decision of\nthe Supreme Court in the case ofShri Sitaram Sugar Co. Ltd.\nv. UOI(1990) 3 SCC 223 (at page 246), may be fruitfully\nreferred to. This decision also echoed the sentiment of the\nearlier decision in the case ofUOI v. Cynamide India Limited(supra) that to distinguish clearly between legislative and\nadministration functions has been regarded as "difficult in\ntheory and impossible in practice". Referring to authoritative\ntexts on the subject, the Supreme Court observed that\nlegislative power is the power to prescribe the law for the\npeople in general, while administrative power is the power\nto prescribe the law for them, or apply the law to them inPage 60 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                 CAV JUDGMENTparticular situations. The Supreme Court observed that the\nCourts, for practical reasons, have distinguished legislative\norders from the rest of the orders by reference to the\nprinciple that the former is of general application. They are\nmade formally by publication and for general guidance with\nreference to which individual decisions are taken in\nparticular situation. It was further observed in the said\ndecision (Sita Ram Sugar Co. Ltd.) that a statutory\ninstrument (such as a rule, order or regulation) emanates\nfrom the exercise of delegated legislative power which is a\npart of the administrative process resembling enactment of\nlaw by the legislature. The Supreme Court also observed\nthat in border line or mixed cases it is best that they are left\nunclassified. So, while I am of the view that the Notification,\nin question, has not been issued in exercise of a legislative\nfunction, it may be argued that the situation is not so\nclear-cut. As indicated in the Supreme Court decision\nreferred to above, in such a situation, it would be best to\nleave it unclassified as either a Notification issued in\nexercise of a legislative function or an administrative\nfunction. This would, as indicated above, not have any\nbearing on the decision that the Notification of 17.02.2007 is\nnot covered by the expression "law made by a legislature of\na State" and, therefore, would not be "law" made or\npurporting to be made underArticle 243ZA.Consequently,\nthe bar to interference by Courts set up by the provisions ofArticle 243ZG(a)of the Constitution would not be triggered.20.     Let me now examine the decision of the Supreme Court\nin Anugrah Narain Singh (supra) which was heavily reliedPage 61 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                 CAV JUDGMENTupon by Mr Tripathi, who appeared on behalf of the Election\nCommission of NCT of Delhi. Mr Tripathi had, as pointed out\nabove, contended on the strength of the said decision, thatArticle 243ZGconstitutes a complete and absolute bar to\nconsider any matter relating to Municipal elections on any\nground whatsoever. It is true that the Supreme Court in\nAnugrah Narain Singh (supra), in paragraph 12 quoted\nearlier in this judgment, had observed that the validity of\nlaws relating to delimitation and allotment of seats made\nunderArticle 243ZAcannot be questioned in any Court and\nthat it was well settled that if the election is imminent or\nwell under way the Court should not intervene to stop the\nelection process. But, these observations must be seen in the\nlight of the special circumstances and other observations\nmade in the said decision itself, as submitted by the learned\nCounsel for the petitioners. First of all, it must be noted that\nthe petitions which were the subject matter before the\nSupreme Court in Anugrah Narain Singh (supra) were writ\npetitions which had been filed not only after the process of\ndelimitation had been completed long time ago but also after\nthe issuance of the election notification. To be precise, the\nprocess of delimitation had been completed before June,\n1995 and the election notification had been issued on\n11.10.1995. The writ petitions were filed later. In this\ncontext, the Supreme Court observed as under:"7. Another important feature of this case, which was\n        ignored by the High Court, was that the process of\n        reservations for various wards and delimitation of\n        constituencies had been completed before June 1995.Page 62 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                            CAV JUDGMENTThere was ample opportunity under the Act to raise\n        objections        before    finalisation   of    the     delimitation\n        process. Section 32 of the Uttar Pradesh Municipal\n        Corporation Adhiniyam, 1959 (hereinafter referred to\n        as        "theU.P.   Act")     has   empowered          the      State\n        Government to divide the municipal areas into wards\n        on the basis of the population and determine the\n        number of wards into which the municipal area should\n        be divided. The State Government may also determine\n        the number of seats to be reserved for the Scheduled\n        Castes, Scheduled Tribes, Backward Classes and\n        women. The State Government is required to issue an\n        order for this purpose which has to be published in the\n        Official Gazette for objections for a period of not less\n        than seven days. After considering the objections that\n        may be filed, the draft order may be amended, altered\n        or modified. Whatever the State Government does,\n        after considering the objections, will be the final order.\n        That process has been gone through. If it is the case of\n        the writ petitioners that they filed objections to the\n        draft orders and their objections were overruled\n        arbitrarily, they should have challenged it forthwith. In\n        fact the notifications of reservation of various wards\n        and delimitation of constituencies had been completed\n        before June 1995. After all these things became final,\n        the writ petitioners waited till 26-10-1995 to file this\n        writ petition when the last date for withdrawal of\n        nomination papers was over. This writ petition should\n        have been dismissed on the ground of laches only. At\n        a time when the election process was in full swing,Page 63 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                             CAV JUDGMENThuge      expenditures       had      been     incurred         by      the\n        candidates,     the      political     parties      and       also      the\n        Government for this purpose, some of the candidates\n        had already been declared elected unopposed, the\n        Court decided to intervene and stop the elections.A reading of the above passage from the Supreme\n        Court decision in Anugrah Narain Singh (supra)\n        indicates that the Supreme Court was of the view that\n        if the petitioners therein were aggrieved by the\n        reservation of wards and delimitation of constituencies\n        they should have challenged it forthwith when the\n        exercise had been completed by June, 1995. The writ\n        petitioners ought not to have waited till 26.10.1995 to\n        file the writ petitions when even the last date for\n        withdrawal of nominations papers was over. The\n        Supreme Court observed that the writ petitions ought\n        to have been dismissed on the ground of laches alone\n        and the Court ought not to have interfered and\n        decided to stop the elections at a time when the\n        election process was in full swing, huge expenses had\n        been incurred by the candidates and political parties\n        and also some of the candidates had already been\n        declared elected unopposed. None of these special\n        circumstances     arise        in     the    present       case.       The\n        notification   was       issued       on    17.02.2007.          It   was\n        published in the newspapers on 18.02.2007 which\n        happened to be a Sunday. The petitioners lost no time\n        and the first of the writ petitions was filed on\n        22.2.2007. The Model Code of Conduct was madePage 64 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                       CAV JUDGMENTapplicable on 23.3.2007 and the election notification is\n        yet to be issued. Therefore, the situation as obtaining\n        in the case before the Supreme Court and the one that\n        presents itself in these petitions are entirely different."21.     There is no doubt that the Court cannot interfere with\nthe election process once it is underway. The election\nprocess       commences     by the issuance of             the election\nnotification. That event has not yet happened. There were\nfurther special circumstances before the Supreme Court in\nthe case of Anugraya Narain Singh (supra) none of which\nare present in the present case. The special circumstances\nbeing, as indicated in paragraph 14 of the said decision,\nthat no Municipal election had been held in the State for\nnearly ten years and the dates of the elections were fixed\nunder the direction given by the High Court in another case.The     Supreme     Court     observed      that   the     elections        of\nPanchayats        and       Municipal       Bodies        cannot           beover-emphasised and that if the holding of elections is\nallowed to be stalled on the whims of a few individuals,\nthen grave injustice would be done to crores of other voters\nwho have the right to elect their representatives to the local\nbodies. The Court observed that as a result of the order of\nthe High Court of Allahabad, elections of the local bodies\nwhich were going to be held after a long lapse of nearly ten\nyears were postponed indefinitely. None of these special\ncircumstances arise in the present case. Moreover, there is\nno pronouncement in the said decision of the Supreme Court\nwith regard to there being no power with the High Court to\ninterfere at a stage before the issuance of electionPage 65 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                         CAV JUDGMENTnotification (i.e., prior to the commencement of the election\nprocess) and in a manner which would not have the effect of\nstalling the election. The Supreme Court also referred to the\nearlier decision in the case of Hassan Uzzaman (supra),\nwherein it was held that the Court must not interfere with\nthe election process and must not pass any order, interim or\notherwise, which would have the effect of postponing an\nelection, which is reasonably imminent. It observed that the\nimminence of the electoral process is a factor which must\nguide and govern the passing of orders in the exercise of\nHigh Court's writ jurisdiction. The more imminent such\nprocess, the greater ought to be the reluctance of the High\nCourt to do anything, or direct anything to be done which\nwill postpone the process indefinitely. The High Courts were\ndirected to observe a self-imposed limitation on their power\nto act underArticle 226, by refusing to pass orders or give\ndirections which would inevitably result in an indefinite\npostponement of elections to the legislative bodies which are\nthe    very       essence   of    the   democratic    foundation           and\nfunctioning of our Constitution. These observations of the\nSupreme Court make three things clear. Firstly, the High\nCourts have power underArticle 226of the Constitution to\npass orders when the election process has not commenced.\nThe     second,      that   the    High      Court   must      exercise        a\nself-imposed limitation to invoke such powers when the\nelections are reasonably imminent and this limitation must\nbe directly proportional to the imminence of the election\nprocess. Thirdly, the High Court must not act in a manner\nwhich would result in an indefinite postponement of an\nelection. It is, therefore, clear that the power to act in suchPage 66 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                        CAV JUDGMENTmatters is there underArticle 226of the Constitution but it\n        must be exercised subject to the limitations mentioned\n        above."57.     Thus, having given our thoughtful consideration to the\nissue      as     regards       the    maintainability    of      the      present\nwrit-applications, we are of the view that the bar to interference\nby the courts in electoral matters underArticle 243-Oof the\nConstitution can be divided into two parts. The bar under the\nfirst part (under clause (a) of the said Article) pertains to a\nchallenge prior to the actual process of election, whereas, the bar\nunder the second part (under clause (b) of the said Article)\npertains to a challenge on the culmination of the election\nprocess. In so far as the present controversy is concerned, the\nclaim      raised         by   the    writ-applicants    being      before        the\ncommencement of the electoral process, it can fall only under the\nfirst part referred to above, i.e. within the ambit ofArticle\n243-O(a).Besides the same, a close examination ofArticle\n243-O(a)of the Constitution reveals that the bar contemplated\nunderArticle 243-Opertains to a challenge to a legal\nprovision/legislative enactment relating to the delimitation of the\nconstituencies or alternatively the validity of any law relating to\nthe allotment of seats to such constituencies made or purporting\nto be made underArticle 243-Kof the Constitution. Insofar as\nthe controversy before us is concerned, the same does not fall in\nany of the aforesaid two classifications, and as such, for all\nintentions and purposes, were considered to be beyond the scope\nand purview ofArticle 243-O(a)of the Constitution of India.Page 67 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                               CAV JUDGMENT58.   Ms.Shah, the learned Government Pleader appearing for\nthe respondent no.2, placed significant reliance on the decision\nof the Supreme Court in the case of Pradhan Sangh Kshettra\nSamiti (supra). It was a case where the validity of the\ndelimitation of the constituencies and the allotment of seats to\nthem were under challenge. Further, that was a case where the\nHigh Court entertained the challenge against the validity of the\ndelimitation of the constituencies after the election notification.\nThe observations made in the said judgment need to be\nunderstood in the backdrop of the facts of the case, and if it is so\ndone, it can be seen that the said judgment cannot be accepted\nas an authority for the proposition sought to be canvassed by\nthe learned counsel appearing for the respondents.59.   As held by the Supreme Court in the case ofHarnek Singh\nvs. Charan Singh and others, reported in (2005)8 SCC 383, that\nalthoughArticle 243-Oof the Constitution mandates that all\nelection disputes must be determined only by way of an election\npetition, yet this by itself may not per se bar the judicial review,\nwhich is the basic structure of the Constitution. It is altogether a\ndifferent thing to say that ordinarily such jurisdiction would not\nbe exercised. There is a fine distinction between 'writ petition per\nse not maintainable' and 'writ petition relating to election\nordinarily should not be entertained'.60.   At this stage, we must also look into the two judgments of\nthis High Court relied upon by the learned counsel appearing for\nthe State Election Commission. In Ismail Noormohmad Mehta\n(supra), a writ-application was filed by few ex-members of thePage 68 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                CAV JUDGMENToutgoing elected body praying to set aside the demarcation of the\nwards made by the Gujarat State Election Commission. This\nlitigation had something to do with the election of Sihor\nNagarpalika. A learned Single Judge of this Court declined to\ninterfere having regard to the fact that the election process had\nalready commenced. This Court took notice of the definition of\nthe term 'election' as defined in Section 2(7A) of the Gujarat\nMunicipalities Act. The definition reads as under :"2(7A) "Election" means and includes the entire election\n      process commencing from the division of wards and all\n      stages culminating into election of a councillor and it is\n      always deemed to have meant and included the entire\n      election process as aforesaid."61.   Taking into consideration the above referred definition, this\nCourt held as under :"In view to this definition, the election process in respect of\n      the said Municipality has already commenced by the\n      division of wards. Thus, since the election process has\n      already commenced, such process cannot be called in\n      question except by an election petition, in the manner\n      provided for inSection 14of the said Act and the High Court\n      cannot entertain the petition in view of the bar imposed byArticle 243-ZGon the Courts to interfere in electoral matters\n      except by the election petition. The decision of Supreme\n      Court in N.P. Ponnuswami's case therefore cannot assist the\n      petitioners. In fact, the Supreme Court in N.P. PonnuswamiPage 69 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                     CAV JUDGMENT(supra) has in terms held, in context of election to the State\n      Legislature, that having regard to its important functions in\n      a democratic set-up, it has always been recognised to be a\n      matter of first importance that elections should be concluded\n      as early as possible according to time-schedule and all\n      controversial matters and all disputes arising out of\n      elections should be postponed till after the elections are\n      over, so that the election proceedings may not be unduly\n      retarded or protracted. Thus if any irregularity is committed\n      while election is in progress, it should be brought before the\n      Special Tribunal by means of the election petition and not be\n      made a subject of dispute before the Court in view of specific\n      provisions ofArticle 243-ZGof the Constitution. In the\n      context and setting of the expression "No election to any\n      Municipality can be called in question appearing inArticle\n      243-ZG", it is clear that even on the ground of improper\n      de-limitation     of   the     constituencies,   election       to     any\n      municipality cannot be called in question except by an\n      election petition and in such a manner as may be provided\n      for in the State Law. In other words, the law made by the\n      State Legislature can be the only source of calling in\n      question the elections of any Municipality and the grounds\n      of challenge can only be such as are provided by such law.\n      Therefore, this petition challenging the de-limitation of\n      wards done under the Notification issued by the State\n      Election Commission cannot be entertained by this Court."62.   The second decision relied upon is Prafulbhai Ladhabhai\nRaiyani (supra). In the said case, the writ-applicant challenged\nthe order passed by the Returning Officer of the GondalPage 70 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                          CAV JUDGMENTMunicipality rejecting the objections raised by him to the\nnomination of the respondent no.7 therein. This matter had\nsomething to do with the election to the Gondal Nagarpalika. The\nState Election Commission had declared the programme for\nelection. Having regard to the same, this Court declined to\nentertain the writ-application, holding as under :"11. From such decisions, it can be seen that interference by\n      the Court in exercise of writ jurisdiction during an\n      intermediate stage of election to the local bodies is a rare\n      and exceptional phenomena. Only in a given case as\n      highlighted by the Supreme Court in case of Ashok Kumar\n      (supra), decision of the Election Commission is found to be\n      male fide, judicial review would be open. There too,\n      interference      would   not    permit         derailing,    delaying         or\n      protracting the ensuing election. Power can be exercised for\n      facilitating the process of free and fair election."63.   In our opinion, both the aforenoted decisions are not\nhelpful to the respondents in any manner.64.   In view of the aforesaid, we answer the first question posed\nby us as regards the maintainability of these writ-applications in\nthe   affirmative.      We   hold     that      the    writ-applications           are\nmaintainable and not hit by the bar contained inArticle 243-Oof\nthe Constitution of India.Page 71 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                          CAV JUDGMENT65.   We now proceed to consider the second question as regards\nthe non-adherence to the rules relating to the rotation of seats.66.   By     and        large,   the     grievance     redressed     in     all    the\nwrit-applications is that the rotational policy has been given a\ntotal go-bye. It is conceded that the State Government has\nprovided the reservation in accordance with law and the\nallotment of seats also is in accordance with law. However, the\nseats are not rotated in accordance with the rules. It has been\npointed out that in some cases past twenty years, there has been\nno rotation. It is argued that the rotational policy is a safeguard\nagainst the possibility of a particular office being reserved in\nperpetuity.67.   The learned counsel appearing for the respondents has\ngiven us more than a fair idea as regards the allotment/rotation\nof seats. It is the case of the respondents that the rotation had\nbeen carried out in 2015 in accordance with the 1994 Rules and\nin 2020 also, the same has been done in accordance with the\nRules.68.   We should be mindful of the fact that entertaining the\nchallenge raised by the writ-applicants as regards the rotation of\nseats at the last minute should not hamper or delay the electoral\nprocess. Any interference at this stage by this Court should not\nprevent the election to be held in this very month of February\nand such interference should not lead to challenge by thePage 72 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                    CAV JUDGMENTmembers of the other panchayats who may not be satisfied by\nthe policy of rotation adopted by the Commission.69.   As observed by the Supreme Court in Ashok Kumar\n(supra), any decisions sought and rendered will not amount to\n'calling in question an election' if it sub-serves the progress of\nthe election and facilitates the completion of the election.\nAnything done towards completing or in furtherance of the\nelection proceedings cannot be described as questioning the\nelection. Subject to the same, the actions taken or orders issued\nby the Election Commission are open to judicial review on the\nwell-settled parameters which enable the judicial review of the\ndecision of the statutory bodies such as on a case of malafide or\narbitrary exercise of power being made out or the statutory body\nbeing shown to have acted in breach of law.70.   The      writ-applicants    have       come   before     this      Court\ncomplaining about the allotment and rotation of seats as, though\nthey want to contest the election, still they are not able to\nbecause of the allotment of seats in the constituencies. In other\nwords, one of the writ-applicants is a male member of a\nScheduled Tribe and he wants to contest the election, but so far\nas the constituency from where he wants to contest the election\nis concerned, it has been allotted to a female member of a\nScheduled Tribe and this is going on past four elections. We may\nonly say, at the cost of repetition, that the right to vote and the\nright to contest an election has consistently been held to be a\nstatutory right and not a fundamental right and this position\nwas re-affirmed in the judgment of the Supreme Court inPage 73 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                 CAV JUDGMENTDr.K.Krishna Murthy (supra), which upheld the constitutional\nvalidity of the provisions ofArticle 243-Dof the Constitution of\nIndia. Once it has been held that the right to vote or to get\nelected is a statutory right, rotation flows out of the statutory\nprovision.71.   In the aforesaid context, we may refer to the observations\nmade by the Allahabad High Court in the case of Sant Ram\nSharma (supra) as under :"There are two perspectives in which this grievance can be\n      looked at. First and foremost, it is a well settled principle of\n      law that electoral franchise is not a fundamental right.\n      Electoral franchise is subject to regulation by statute.Article\n      243Dof the Constitution which provides for the reservation\n      of seats, has specifically contemplated that the manner in\n      which the reservation of seats and offices of chairpersons in\n      the panchayats would be worked out, would be governed by\n      state legislation. While making an enabling provision for\n      rotation of reserved seats among territorial constituencies\n      (the Supreme Court held that rotation is an enabling\n      provision in Krishna Murthy's case), the Constitution has\n      carefully not laid down either the manner in which the\n      rotation would be carried out or the periodicity of the\n      reservation.Article 243Dwould indicate an area of\n      constitutional silence where, while framing Part IX, it has\n      been left to the discretion of the state legislatures to\n      determine the manner in which seats would be allocated to\n      reserved constituencies and the manner in which rotation\n      would be made.Page 74 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                 CAV JUDGMENTThe second important aspect which must be noted in this\nregard is that in making an allotment of reserved seats\namong territorial constituencies,Article 243Dcontemplates,\nfirstly, that the number of seats which are reserved will\nbear, as nearly as may be, the same proportion to the total\nnumber of seats to be filled in by election in that panchayat\nas the population of the Scheduled Castes and the\nScheduled Tribes in that panchayat area bears to the total\npopulation of that area. Under clause (f) ofArticle 243,\npopulation is ascertained on the basis of the published\nfigures of the last census.Article 243Dspells out the basis\non which the total number of seats which are reserved for\nthe Scheduled Castes and the Scheduled Tribes shall be\ndetermined.Article 243Dalso provides for the extent of\nreservation for women, as we have noticed earlier, which is\nan area where the horizontal reservation intersects with a\nvertical reservation of one-third of the total number of seats\nin favour of women. In the case of chairpersons of\npanchayats, the Constitution lays down the basis on which\nthe total number of offices of chairpersons would be\nreserved for the Scheduled Castes and the Scheduled\nTribes. Similarly, there is a stipulation of the extent to which\nthe reservation in favour of women is made, namely\none-third of the total number of offices of chairpersons in the\npanchayat at each level. The Constitution lays down a\nbroad principle or norm of rotation. There are thus two\nelements of constitutional philosophy which have to be\nbalanced. The first is a representation to the Scheduled\nCastes and Tribes commensurate with their share of thePage 75 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                         CAV JUDGMENTpopulation as ascertained in the last published census\nfigures. This by its very nature is not static but must evolve\nso as to be commensurate with the share of population. The\nsecond constitutional precept of rotation is that one category\ndoes not hold a perpetual reservation to a particular seat.\nBoth these concepts are in the very nature of their\napplication not static. Beyond this, the Constitution has\nevidently not spelt out the details of the regulation or\nprocedure by which the actual allotment of seats would take\nplace among reserved constituencies in panchayats or in\nregard to the manner in which the rotation would be carried\nout. There is, therefore, a broad area of discretion which has\nbeen      left    open   to   the     state   legislatures     under        the\nConstitution. Once this basic principle is borne in mind,\nhaving due regard to the principles which have been laid\ndown by the Supreme Court in K Krishna Murthy (supra),\nthere is no manner of doubt that the state legislature and its\ndelegate which frames the subordinate legislation, would\nhave a requisite measure of discretion in regard to the\nmethodology to be followed for the allotment of seats to\nterritorial constituencies and the manner in which the\nprinciple of rotation is to be implemented.The proviso which has been introduced by the tenth\namendment to Rule 4 (4) has envisaged that the allotment of\nseats      shall    be   made       afresh    to   different      territorial\nconstituencies without taking into consideration the status\nof allotment in previous elections in specified contingencies.\nSuch a contingency occurs when there is a general\ndelimitation of territorial constituencies of gram panchayatsPage 76 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                   CAV JUDGMENTof the State on the basis of a general modification of\n      panchayat areas "or otherwise". The proviso must be\n      construed as conferring a power on the state to commence\n      rotation afresh on a general delimitation exercise in respect\n      of territorial constituencies of panchayats on the basis of a\n      general modification of panchayat areas. We are of the view\n      that the expression "or otherwise" must be read down to\n      mean that the circumstances in which the allotment of seats\n      would be made afresh without taking into consideration the\n      status of allotment in previous elections, must be based on\n      reasonable and objective criteria akin to those specified. In\n      other words, whether an allotment should be made afresh\n      without having due regard to the status of allotment in a\n      previous election, cannot be left to the unguided discretion of\n      the State. Such a restraint would have to be read into the\n      powers of the State Government in order to ensure against\n      an arbitrary exercise of power. In each case, where the\n      State Government attempts to initiate a fresh allotment of\n      territorial constituencies in terms of the proviso to Rule 4 (4),\n      it is for the State Government, in the event of a challenge, to\n      demonstrate before the Court the reasons on the basis of\n      which such a determination was made. The amendment\n      would in our view is hence not ultra vires."72.   The election programme as declared by the State Election\nCommission in the form of a Circular dated 23 rd January 2021 is\nas under :Page 77 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                            CAV JUDGMENT"ELECTION PROGRAMME\n\nSr.   Description                                    Election Programme\nNo.Municipal   District/ Taluka\n                                             Corporations  Panchayats/\n                                                           Municipalities\n\n  1   Date of declaration of the                 23.01.2021         23.01.2021\n      election\n  2   Date of issuance of the Circular           01.02.2021         08.02.2021\n  3   Last date for filing the                   06.02.2021         13.02.2021\n      nomination\n  4   Date for verification of the               08.02.2021         15.02.2021\n      nomination\n  5   Last date for withdrawing the              09.02.2021         16.02.2021\n      nomination\n  6   Date of election                       21.02.2021      28.02.2021\n                                              (Sunday)        (Sunday)\n                                                From            From\n                                             7:00 a.m. to 7:00 a.m. to 6:00\n                                              6:00 p.m.          p.m.\n  7   Date of re-election (If necessary)         22.02.2021         01.03.2021\n  8   Date of counting the votes                 23.02.2021         02.03.2021\n  9   Date of completion of the                  26.02.2021         05.03.2021\n      election process73.   Having taken the view that the writ-applications are\nmaintainable, we could have gone into the second issue on\nmerits. However, considering the election programme as referred\nto above, we decline to enter into the second issue having regard\nto the time now left for holding the elections and any interference\nat this stage would result in undue delay of the election process.\nRotation of seats is a complex process. We are bound by the\nConstitutional prohibition and should not, at this stage, undo\nrotation which has already been put into motion and on thePage 78 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                         CAV JUDGMENTbasis of such rotation hundreds of people are going to contest\nthe elections in different categories allotted to them.74.   We may refer to very important observations of the\nSupreme Court in the case ofAnugrah Narain Singh and another\nvs. State of U.P. and others, reported in (1996) 6 SCC 303, as\ncontained in paragraph 35 :"Lastly, the Court on no account should have directed\n      postponement of the elections by the impugned judgment\n      and order dated 13th November, 1995. On 11th October,\n      1995, the notification for holding the municipal elections\n      was issued. 16th         to 20th October, 1995 was the period\n      during which the nomination papers could be filed. 24th\n      October, 1995 was the last date for withdrawal of\n      nomination papers. Voting was to take place between 17 th\n      November to 20th November, 1995. The writ petition was\n      filed as late 26th October, 1995 on the allegation that there\n      were      defects   in   the    electoral   rolls,      delimitation          of\n      constituencies and reservation of seats. A similar writ\n      petition moved before the Lucknow Bench of the Allahabad\n      High Court (W.P. No. 2997 of 1995) had been dismissed by\n      the Court on 18th October, 1995. Barely one week before the\n      voting was scheduled to commence, the Court decided to\n      intervene in the matter regardless of the repeated warnings\n      given by this Court in a number of earlier decisions. The\n      Court decided to intervene in the matter and stop the\n      election process while it was nearing completion. In Lakshmi\n      Charan's case, it was held that the Court should not\n      intervene even when the elections were imminent. Here, the\n      election was well underway."Page 79 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                        CAV JUDGMENT75.   Our aforesaid discussion may be summarised as under :(1)Article 243-Oof the Constitution of India does not\n      per se bar judicial review, which is part of the basic\n      structure of the Constitution, although such jurisdiction\n      should not ordinarily be exercised. There is a difference\n      between 'power of judicial review' and 'judicial power'. The\n      'power of judicial review' is specially conferred on the\n      Constitutional Courts, i.e. the High Courts and the\n      Supreme Court, under Articles 226 and 32 of the\n      Constitution, respectively.(2)     It is settled principle that where there is an effective\n      alternative remedy under the statute, the High Court\n      should not exercise its jurisdiction as a self-imposed\n      restriction. In electoral matters, the High Court observes\n      self-impose limitations and declines to interfere with the\n      election process when once the election notification is\n      issued. But, where the constitutional validity of an Act or a\n      Rule or provision of an Act affecting the election is\n      challenged,       or   where    an     error   in   exercising          such\n      jurisdiction or malafides or non-compliance of rules of\n      natural justice is established, the High Court has got\n      ample power to render justice by exercising the power of\n      judicial review conferred on it underArticle 226of the\n      Constitution of India.(3)     The bar of interference by 'courts' in electoral matters\n      should be understood as the bar against the ordinaryPage 80 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                                        CAV JUDGMENTcourts and not against the Constitutional Courts, and it\ncannot be said that the Parliament intended to take away\nthe power of judicial review of the Constitutional Courts by\nincorporatingArticle 243-Oof the Constitution. IfArticle\n243-Oof the Constitution has to be construed so as to bar\nthe jurisdiction of the Constitutional Courts, i.e. the High\nCourts and the Supreme Court, the same will be against\nthe basic structure or the basic feature of the Constitution,\nand accordingly, it is void.(4)     The right to contest an election is neither a\nfundamental right nor a common law right. It is a right\nconferred by a statute. At the most, in view of Part IX\nhaving been added in the Constitution, a right to contest\nan election for an office in Panchayat may be said to be a\nconstitutional right - a right originating in the Constitution\nand given shape by a statute. But even so, it cannot be\nequated with a fundamental right. The State which is\nvested with the power to implement the constitutional\nmandate of reservation and rotation and has put in place a\nlegislative       and   executive    measure   to      implement           the\nmandate cannot be found to have objected judicial review\nso as to interfere the mandate under law and to ensure\nthat the elections are not only conducted within the time\nprescribed but also in the manner as mandated under law.(5)     The High Court should not intervene even when the\nelections are imminent. In other words, the election is well\nunderway.Page 81 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021C/SCA/1429/2021                               CAV JUDGMENT76.    For the foregoing reasons, we decline to go into the second\nquestion at the last minute of the elections. It is not possible for\nthis Court to grant any relief to the writ-applicants at this stage.77.    In the result, all the writ-applications fail and are hereby\nrejected.(J. B. PARDIWALA, J.)\n\n\n                                                  (ILESH J. VORA, J.)\n/MOINUDDINPage 82 of 82Downloaded on : Sun Aug 22 03:18:53 IST 2021