State Government order dated 05.09.2015 notified that in Three-tier Panchayat Elections, the proceedings for reservation and allotment of seats for Pramukh, Kshetra Panchayat; members, Kshetra Panchayat and member of Zila Panchayat would continue as per the time-table notified for the same, whereas, the proceedings for reservation and allotment of seats for the Gram Panchayats be kept in abeyance till further orders were passed.
To this, the petitioner raised objection regarding the list of allotment and reservation of seats. Further, there was no justification for postponing the elections of Gram Panchayat and in the three-tier system, without the election of Gram Panchayat, the constitution of Kshetra and Zila Panchayat was not possible.
Relief by way of writ in the nature of Mandamus was sought commanding the respondents to reframe the reservation of territorial constituencies of Zila panchayat to which State raised objection regarding the maintainability of the writ and gave the reference of the case of Rishipal Singh v/s State of Bihar where court said that In view of the constitutional bar contained in Article 243-O of the Constitution, it would not be appropriate or proper for the Court to entertain the petition once the electoral process has been initiated. Hence, we decline to exercise our writ jurisdiction under Article 226 of the Constitution on that ground. further, the decision of the Constitution Bench in the case of L. Chandra Kumar Vs. Union of India and others was noted to observe that the power of judicial review by the High Court under Article 226 of the Constitution and Hon’ble Supreme Court under Article 32 is an integral and essential feature of the Constitution and, therefore, constitutes part of its basic structure. Subject to the inherent limitation on the scope of the exercise of power of High Court under Article 226, in matters relating to holding of elections, the Court was of the considered opinion that the constitutional bar contained in Article 243-O of the Constitution would not be a bar on the jurisdiction of the Constitutional Courts under Article 226 & 32 of the Constitution of India.
- Whether, the constitutional remedy of judicial review under Article 226 of the Constitution of India, which has been recognised as a basic feature of the constitution in L. Chandra Kumar Vs. Union of India, could be curtailed in view of the bar created under Article 243-O of the Constitution of India?
- Whether, a writ petition under Article 226 of the Constitution of India can be refused to be entertained for the reason that a notification for holding the Panchayat elections has been issued by the State in view of Article 243-O of the Constitution of India, even where:
- vires of election laws are questioned,
- Government Orders issued for effecting the election are stated to be in breach of election laws/arbitrary,
- actual implementation by the State of election laws/Government Orders is stated to be in breach of the provisions,
- any other similar issue?
- Whether the High Court in the exercise of power under Article 226 of the Constitution of India can interfere in the election process, if the elections are not being held in accordance with the Constitution of India or there is inherent defects or breaches of the election law making the entire election a mockery or a farce?
- Whether, this Court would permit the ongoing process of election, in the facts of the present case, or not?
- Whether, the vires of the election laws, as well as reservation of seats, can be subjected to challenge only in a petition under Article 226 of the Constitution of India or else the aggrieved person is rendered remedy less?
Decision of the Court
Court said that if the very process of holding election or implementation of reservation under the Rules, in respect of the various constituencies of Zila Panchayat has to be challenged, then the only remedy available to a person, not belonging to the reserved category in question for which the seat has been reserved, is to file petition under Article 226 of the Constitution of India. He has no remedy elsewhere. His challenge to the process of the reservation may ultimately succeed or may not succeed, is a different issue, but it cannot be said that the writ petition is not maintainable. The writ petition raising such issue, in our opinion, have to be entertained, notwithstanding the bar contained in Article 243-O of the Constitution of India.
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