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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 5626 OF 2006
PETITIONER : Shri Sandeep s/o. Badriprasad Agrawal,
Aged about 31 yrs., Occ. Agrilst.,
R/o. 'Smruti', Agrasen Road,
Dharampeth, Nagpur - 32.
// VERSUS //
RESPONDENTS : 1. The Union of India,
Through the Ministry of Home
Affairs, 2A, Mansing Road,
New Delhi.
2. The State of Maharashtra,
Through its Secretary,
Deptt. of Home,
Mantralaya Extension,
Fort, Mumbai 400 032.
3. The State Election Commissioner,
1st Floor, New Administrative Bldg.,
Madam Cama Road, Opp.
Mantralaya, Mumbai -32.
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4. The Chief Election Commissioner,
Nirwachan Sadan, Ashoka Road,
New Delhi.
5. The Delimitation Commission of
India, through its Chairman,
Nirwachan Sadan, Ashoka
Road, New Delhi - 110 001.
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Mr. S.A.Gordey, Adv. for Petitioner.
Mr. S.K. Mishra, Assistant Solicitor General for Respondent No.1.
Mr. S.B.Ahirkar, Assistant Government Pleader for Respondent No.2.
Mr.Pradeep Marpakwar, Adv. for Respondent No.3.
Mr.Girish Choubey, Adv. for Respondent Nos. 4 and 5
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CORAM : D.D.SINHA AND
A.P.BHANGALE, JJ.
DATED : JULY 31, 2008.
ORAL JUDGMENT : (Per D.D.Sinha, J)
1. Rule made returnable forthwith by the consent of
Mr.S.A.Gordey, Adv. for Petitioner, Mr. S.K. Mishra, Assistant
Solicitor General for Respondent No.1, Mr. S.B.Ahirkar, Assistant
Government Pleader for Respondent No.2, Mr.Pradeep Marpakwar,
Adv. for Respondent No.3 and Mr.Girish Choubey, Adv. for
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Respondent Nos. 4 and 5. Heard the learned counsel for the
respective parties.
2. Counsel for the respondents raised the preliminary
objection about maintainability of present petition in view of law
laid down by the Apex Court in the case of Meghraj Kothari .vs.
Delimitation Commission and Ors., reported in AIR 1967 SC
669. Considered the contentions canvassed by the respective
counsel in respect of maintainability of present petition and also
perused the decision of the Apex Court.
3. In the instant case, the following facts are not in dispute :
That the first notification u/s. 9 (1) was issued on
28.3.2006 and final notification u/s. 10 (1) of the Act was issued on
31st July, 2006 and in view of the provisions of sub-clause (2) of
Section 10, upon such publication in the Gazette of India, every
such order shall have force of law and shall not be called in
question in any Court.
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4. The observations made by the Constitutional Bench of the
Apex Court in the case of Meghraj Kothari (cited supra) in
paragraphs 11, 16, 19, 23 and 30 clearly demonstrate that once the
De-limitation Commission has made orders u/ss. 8 and 9 and they
are published u/s. 10 (1), the orders will have effect of law as if
made by the Parliament itself. Therefore, the orders passed u/ss. 8
and 9 and published u/s. 10 (1) would not be saved merely because
of use of the expression “shall not be called in question in any
Court”. However, due to publication of the order in the Gazette of
India, it is to be treated as law made under Article 327; Article 329
and would prevent any investigation by any Court of law.
5. Since we have already held that the petition is not
maintainable, it is not necessary for us to consider the petition on
merits.
6. However, the issue is of public importance, hence, this
Court has considered the issue on merits also. Counsel for the
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petitioner has submitted that the document annexed with the
petition at page no.96 based on the details of voters of Ramtek Lok
Sabha and Nagpur Lok Sabha Constituencies given by the Collector,
Nagpur shows that the Ramtek Lok Sabha Constituency, after de-
limitation, has population of 15.49 % Schedued Caste voters,
whereas the Nagpur Lok Sabha Constituency has 20.35 %
Scheduled Caste Voters. It is submitted that the Nagpur District has
two Lok Sabha Constituencies; one is Ramtek and another is Nagpur
and since Nagpur Lok Sabha Constituency has more percentage of
Scheduled Castes voters, the Nagpur Lok Sabha Constituency should
have been reserved for the Scheduled Caste Category candidate and
not the Ramtek Lok Sabha Constituency.
7. Counsel for petitioner has submitted that, in the instant
case, petitioner is questioning the procedure adopted by respondent
no.5 while reserving the seat for Scheduled Caste in Ramtek
Parliamentary Constituency. It is submitted that, u/s. 9 (1)( c) of
the Delimitation Act, 2002, the Constituencies for Scheduled Castes
are to be distributed in different parts of the State and the seats are
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to be reserved for Scheduled Castes in those Constituencies where
percentage of their population to the total population is
comparatively large. Therefore, while working out allocation of
total number of seats of such districts, the number of seats to be
reserved for Scheduled Castes in those districts will also have to be
worked out separately. Consequently, the Scheduled Castes seats
will be reserved in those Constituencies in the districts in which, so
far as practicable, the percentage of their population to the total
population is the largest in descending order equal to the number of
Scheduled Castes seats in the district concerned.
8. The affidavit filed on behalf of respondent nos. 4 and 5
shows that, on the basis of Census figure of 2001, the Ramtek
Parliamentary Constituency has Scheduled Castes Population of
17.53 %, whereas Nagpur Parliamentary Constituency has 15.72 %.
There is no reason for us to disbelieve the percentage of Scheduled
Caste voters mentioned in the affidavit filed by the De-limitation
Commission, which is based on 2001 census. The material placed
before us by the petitioner even otherwise is wholly inadequate to
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hold otherwise, and therefore, even on merits, the petition is devoid
of substance.
9. In view of the law laid down by the Apex Court (cited
supra) as well as considering the Scheme of provisions of the De-
Limitation Act, the petition is not maintainable. Even on merits, the
petitioner suffers from lack of merits. Hence, the petition is
dismissed. Rule is discharged. No order as to costs.
JUDGE JUDGE
jaiswal
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