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PETITIONER:

RATANALAL NATH E C

Vs.

RESPONDENT:

STATE OF TRIPURA & ORS. ETC

DATE OF JUDGMENT: 25/02/1997

BENCH:

B.P. JEEVAN REDDY, K.S. PARIPOORNAN

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

B.P.JEEVAN REDDY,J.

Leave granted in both the Special Leave Petitions.

Civil Appeal No. 1641 of 1997 [arising from Special

Leave Petition (x) No. 22702 of 1994] is Preferred by the

State of Tripura, while the other civil appeal [arising from

Special Leave Petition (c) No.10413 of 1994] is preferred by

a voter who was the writ petitioner before the High Court.

The main challenge in the writ petition was to the validity

of certain rules framed by the State of Tripura under and in

pursuance of the Tripura Panchayats Act, 1993. The High

Court has struck down sub-rules (3) to (7) of Rule 8-A of

the Tripura Panchayats [Preparation of Electoral Rolls

Rules, 1993 [[hereinafter referred to as "Panchayat Rules"]

and proviso (ii) to sub rule (3) of Rule 3, proviso (ii) to

sub-rule (4) of Rule 6 and proviso (ii) to clause (c) of

sub-rule (4) of Rule 8 of the Tripura Panchayats

[Delimitation of Constituencies] Rules, 1993 [hereinafter

referred to as "Delimitation Rules"]. The High Court,

however, substained the validity of Rule 3 of the Tripura

Panchayats [Constitution of State Panchayat Election

Commission] Rules, 1993.

The Tripura Legislative Assembly enacted the Tripura

Panchayats Act, 1993 in the light of and to bring the law

relating to panchayats in conformity with the purpose,

substance and direction of the Constitution [73rd Amendment]

Act, 1993. The Act has created a three-tier system. Gram

Panchayats are constituted for Grams [villages], Panchayat

Samities at the block level and Zilla Parishads at the

district level. The Act provides for the constitution and

composition of these bodies besides providing for their

powers, duties and functions et al. We may briefly notice

the relevant provisions of the Act. Clause (16) of Section 2

defines the expression "First General Election". It means

"the First General Election of members held for constitution

of Gram Panchayats, Panchayat Samities and Zilla Parishads

after commencement of this Act". The subject-matter of the

present proceedings is the First General Election". Clause

(32) in Section 2 defines the expression "population" to

mean "the population as ascertained at the last preceding

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census of which the relevant figures have been published".

Section 3 provides for the constitution of the Gram. Section

11 provides that for every Gram there shall be constituted

a Gram panchayat. Section 12 provides inter alia that the

strength of a Gram Panchayat shall not be less than nine and

shall not exceed fifteen. Section 13 provides that each Gram

shall be divided into not less than five but not more than

fifteen constituencies. Section 14 provides for reservation

of seats in every Gram Panchayat in favour of Scheduled

Castes and Scheduled Tribes. Similar provision is made in

respect of Panchayat Samities and Zilla Parishads as well.

Section 176 provides for the constitution of a State

Panchayat Election Commission. The Commission is vested with

the power of superintendence, direction and control of the

preparation of the electoral rolls and the conduct of all

elections to Panchayat Bodies under the Act and the Rules

made thereunder. Section 177 says that "for each

constituency, there shall be an electoral roll showing the

names of the persons qualified to vote. The electoral roll

shall be prepared in accordance with the provisions of this

Act and the Rules made thereunder". Section 183 provides for

preparation, revision and correction of electoral rolls.

Section 189 bars the jurisdiction or the civil court in

respect of matters provide by the Act. Section 213 bars the

court from granting an injunction interfering with the

process of election. Section 228 empowers the State

government to make rules for carrying out the purposes of

the Act.

In exercise of the rule-making power conferred by

Section 228, the State government has framed the aforesaid

three sets of rules among others. We may first notice the

relevant provisions of the Delimitation Rules. Rule 3

provides for determination of number of members for a Gram

Panchayat and the number of members of Scheduled Tribes,

Scheduled Castes and women in each Panchayat. the number of

members of each Panchayat is related to the population of

each Gram. For a Gram, the population of which does not

exceed three thousand, the number of members is nine [which

is the minimum number prescribed by the Act] and for a Gram

the population of which exceeds six thousand, the number of

members is fifteen [the maximum prescribed by the Act]. Sub-

rule (3) provides for the reservation of seats in favour of

scheduled Tribes and Scheduled Castes whereas sub-rule (4)

provides for reservation in favour of women. Having regard

to the nature of the controversy involved herein, it would

br appropriate to set out sub-rule (3) of Rule 3 in its

entirety:

"(3) The number of the Scheduled

Castes members and the Scheduled

Tribes members to be elected from

among the members determined under

sub-clause (1), which shall bear,

as nearly as may be, the same

proportion with the number of the

members of the Gram Panchayat as

the Scheduled Castes population or

the Scheduled Tribes population, as

the case may be, bears with the

total population in the Gram:

Provided that--

(i) the number of the

Scheduled Castes of the Scheduled

Tribes of the total population in a

Gram shall be determined primarily

on the basis of the last preceding

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census of which the relevant

figures are published.

(ii) when census figures are

not available for any area of a

Gram, the prescribed authority

shall, subject to such order of the

State Government as may be made in

this behalf, determine the number

of the Scheduled Castes or the

Scheduled Tribes or the total

population on the basis of any

other authenticated record

maintained by any office or

organisation of any department of

the State Government or, where no

such record is available, on the

basis of a local enquiry which may

include house to house enumeration,

caused by him for the purposes as

aforesaid after consulting where

necessary, any portion of the

census report, electoral roll of

the Tripura Legislative Assembly or

any other authenticated record that

may be of assistance;

(iii) when it is ascertained

from the available records that one

or more portions of the area of a

Gram have, in all such portions

taken together, the Scheduled

castes or the Scheduled Tribes

population constituting less than

one per cent of the total

population of the Gram, such

Scheduled Castes or Scheduled

Tribes population figures in

respect of such portions shall not

be taken into account for the

purpose of sub-clause (3) :

(iv) the Sub-Divisional Magistrate

by an order in writing, shall

record, before publication of the

draft of the order in From A, the

procedure adopted, the records and

documents relied upon and the

findings made for the purpose of

determination of the Scheduled

Castes and the Scheduled Tribes

members."

[Emphasis added]

Rule 6 deals with determination of number of members

and constituencies for Panchayat Samiti and the reservation

of seats in favour of Scheduled Castes and Scheduled Tribes

in each Panchayat Samiti. Sub-rule (4) of Rule 6 corresponds

to sub-rule (3) of Rule 3. It is, therefore, unnecessary to

set out the said sub-rule. Rule 8, in turn, deals with

determination of number of constituencies and allotment of

seats to Scheduled Tribes and Scheduled Castes in each Zilla

Parishad. The relevant provisions of clause (c) of sub-rule

(4) of Rule 8 are in pari materia with sub-rule (4) of Rule

3 and, therefore, the said clause or sub-rule too need not

be set out.

The scheme of the three sub-rules aforementioned is

identical, viz., (a) the number of Scheduled Castes members

and Scheduled Tribes members to be elected shall bear, as

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nearly as may be, the same proportion with the number of

members of the Gram Panchayat as the population of the

Scheduled Castes and Scheduled Tribes bears with the total

population in the Gram, in the Panchayat Samiti area, and in

the area of Zilla Parishad, as the case may be [Rule 3(3),

Rule 6(4) and Rule 8(4) (c) - main limb]; (b) the population

of the Scheduled of a Gram, Panchayat Samiti area of Zilla

Parishad area shall be determined primarily on the basis of

last preceding census of which the relevant figures are

published [proviso (i) appended to each of the above sub-

rules]; and (c) in case where census figures are not

available for any area of a Gram/Panchayat Samiti/Zilla

Parishad, the prescribed authority shall determine the

population of the scheduled castes, Scheduled Tribes, or for

that matter, the total population of a Gram/Panchayat Samiti

area/Zilla Parishad area "on the basis of any other

authenticated record maintained by any office or

organization of any department of the State Government or

where no such record is available, on the basis of local

enquiry, after consulting, where necessary, any portion of

the census report, relevant electoral roll of the Tripura

Legislative Assembly or any other authenticated record that

may be of assistance". (proviso (ii) to each of the above

sub-rules). There are certain other provision in sub-rule

(3) which are not necessary to notice for the purpose of

this case.

Tripura Panchayats [Preparation of Electoral Rolls]

Rules, 1993 [Panchayat Rules] have been made to regulate the

preparation and publication of electoral rolls under the

said Act and to provide for other incidental matters. Sub-

rule (1) of Rule 8 provides that "there shall be an

Electoral Roll which shall be prepared in accordance with

the provisions of the Tripura Panchayats Act under the

superintendence, direction and control of the State

Panchayat Election Commission". The other sub-rules provide

for publication of a draft electoral roll, considerations of

objections received and publication of the final electoral

roll. Rule 8-A was inserted in these rules by an amendment

published in the Gazette dated December 29, 1993. It deals

with the preparation of the electoral rolls for the "First

General Election". Sub-rule (1) provides that for the

purpose of "First General Election", the State Panchayat

Election Commission shall, in consultation with the State

government, draw up the programme for publication of the

draft electoral rolls and the final electoral rolls and

other incidental matters. Sub-rule (2) provides that in

connection with the preparation of such electoral rolls, the

State Election Commissioner shall publish the dates for

publication of draft electoral rolls, the last date for

filing claims/objections and the date of final publication

of draft electoral rolls, the last date for filing

claims/objections and the date of final publication of draft

electoral rolls. Sub-rule (3) provides that "so much of the

electoral rolls of any Assembly constituency or. as the case

may be, Assembly constituencies for the time being in force,

as relates to the area comprised with in the panchayats,

shall be the electoral rolls for the election of members of

Gram Panchayat, Panchayat Samiti and Zilla Parishad". Sub-

rule (4) similarly provides that "so much of the electoral

rolls for any Assembly Constituency or, as the case may be,

Assembly constituencies for the time being in force as it

relates to the areas comprised within a constituency or

constituencies of Gram Panchayat, Panchayat Samiti and zilla

Parishad shall be the electoral rolls for the First General

Election of the Members of Gram Panchayat, Panchayat Samiti

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or Zilla Parishad from that constituency". Sub-rule (5) says

that "the electoral rolls for the First General Election for

each constituency of the Panchayat shall be prepared by the

electoral Registration Officer". Sub-rule (6) provides that

"for the purpose of preparing the electoral rolls of each

constituency for the First General Election to Gram

Panchayat, Panchayat Samiti or Zilla Parishad, the electoral

rolls of any Assembly constituencies shall be split up on

such manner as the Electoral Registration Officer may

consider fit, proper and necessary". Sub-rule (7) provides

that "electoral rolls for the First General Election of each

constituency of the Gram Panchayat, Panchayat Samiti or

Zilla Parishad may be divided into convenient parts which

shall be numbered recording [according?] to the number of

constituencies given as per the delimitation of constituency

of Panchayats". The other sub-rules provide for publication

of draft rules, consideration of objections and claims

received and the final publication. [We have quoted sub-

rules (3), (4), (5), (6) and (7) in full because of the fact

that the said rules have been struck down by the High

Court.]

The State has preferred the appeal [Special Leave

Petition No.22702 of 1994] aggrieved by the striking down of

the Rules aforementioned whereas the write petitioner,

Ratanlal Nath, has filed the appeal [Special Leave Petition

(C) No.10413 of 1994] contending that not only the aforesaid

Rules but another set of Rules called the Tripura Panchayats

[Constitution of State Panchayat Election Commission] Rules,

1993 [hereinafter referred to as "Election Commission Rules"

should also have been struck down. The Election Commission

Rules provide for the constitution of election commission

[Rule 3]. The rule inter alia provides that the Governor

shall appoint the State Election Commissioner on the

recommendation of the State government and further that "the

State Election Commissioner shall hold office for a period

not exceeding six months at a time from the date on which he

enters upon his office. Provided that the Governor may

reappoint the same Officer for another term with the

recommendation of the State Government if he is otherwise

not disqualified for re-appointment".

P A R T - I I

So far as Panchayats Rules and Delimitation Rules are

concerned, the only ground urged by the writ petitioner is

that the said Rules travel beyond the four corners of the

Act and are, therefore, incompetent and invalid. No other

ground of invalidity is urged.

Let us first deal with the Delimitation Rules. The

contention of the writ petitioner is that the provisions

contained in proviso (ii) to sub-rule (3) of Rule 3 are

inconsistent with the definition of the expression

"population" in clause (32) of Section 2 of the Panchayats

Act as well as the definition of the said expression in

clause (f) of Article 243 of the Constitution and,

therefore, incompetent. The reasoning which has appealed to

the High Court is that inasmuch as the definition of

"population" contained in the Constitution as well as in the

Act means "the population as ascertained at the last

preceding census of which the relevant figures have been

published", the second proviso to sub-rule (3) of Rule which

provides for looking into some other records in the absence

of census figures is outside the purview of the Act and the

Constitution. We are unable to agree. Clause (f) of Article

243 of the Constitution defines the expression "Population"

in the following words: "(f) Population means the population

as ascertained at the last preceding census of which the

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relevant figures have been published". [Clause (32) of

Section 2 of the Tripura Panchayats Act faithfully re-

produces the said definition.] All that the first and second

provisos to sub-rule (3) of Rule 3 of the Delimitation Rules

provide is that where census figures are available that

shall be the primary basis - indeed, it shall be the only

basis - for determining the total population of a Panchayat,

or for that matter, the population of the Scheduled Tribes

and Scheduled Castes, as the case may be, bu t where the

census figures area not available, the population figures

shall be ascertained from the other relevant authenticated

record. Similar provisions are contained in Rule 6 and Rule

8 relating to Panchayat Samities and Zilla Parishads

respectively. The provisos do not say that even where the

census figures are available, the authorities should go to

other record. The provisos really provide for a situation

where census figures are not available. The Rules are

inspired by the objective that elections have to be held and

it is with this objective that they have made the said

provision. We are unable to see how the said provisos can be

held to travel outside the purview of the Act. The Rules are

made for carrying out the purposes of the enactment [Section

228(1) of the Act] and the purpose of the Act is to ensure

the conduct the elections. Indeed, Part-IX of the

Constitution was amended in 1973 to ensure periodic and

regular elections to Panchayats, which were not being held

regularly in many States. Not only the said provisos ore not

inconsistent with the provisions of the Act and the

Constitution, but they in fact further and advance the

object underlying the Act and Part-IX of the Constitution.

We must say that we find no proper or acceptable reasoning

in the impugned judgment for striking down the said Rules.

We shall now consider the validity of sub-rules (3) to

(7) of Rule 8-A of the Tripura Panchayats [Preparation of

Electoral Rolls] Rules, 1993. The said sub-rules have

already been set out in their entirety hereinbefore. The

contention of the writ petitioner is that these sub-rules

are inconsistent with Sections 176, 177 and 183 of the Act.

The High Court has accepted the said plea in two short

paragraphs which are, if we may say so with respect, devoid

of any reasoning. In Para 39, they noticed the provisions in

Sections 176, 177 and 183. [Section 176 vests the

superintendence, direction and control of the preparation of

the electoral rolls and conduct of elections under the Act

in the State Panchayat Election Commission and provides for

the appointment and other matters concerning the members of

the Commission and other officers. Section 177 provides that

the electoral roll for each constituency "shall be prepared

in accordance with the provisions of this Act and the rules

made thereunder" and Section 183 provides that the electoral

roll for each constituency shall be prepared by the

Electoral Registration Officer in the prescribed manner with

reference to the qualifying date and that the electoral roll

may be divided into convenient parts. It also provides for

the revision of the electoral rolls. Having set out the

purport of Sections 176, 177 and 183 the High Court

observed:

"In view of the provisions

contained in Sections 176, 177 and

183, according to the 8A is ultra

vires inasmuch as it is contrary to

the said Sections. As per the

provisions of the said sections

preparation of electoral rolls

cannot be synonymous with the

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adoption of any electoral roll in

view of the fact that the two

concepts are widely different and

opposed to each other.

We have perused the provisions

of Section 176, 177 and 183 and the

amended Rule 8A. One perusal of the

Rule we find that the amended Rule

8A/ (3) to (7) is contrary to the

provisions of the said Sections of

the Act. It is well established

that a rule making authority has no

power to make rules contrary to the

provisions of the Act. Therefore,

in our view amendment of Rule 8 by

the Amendment Rules, 1993 is

contrary to the provisions of the

Act and, therefore, it is ultra

vires".

Except saying that "preparation of electoral rolls

cannot be synonymous with the adoption of any electoral roll

in view of the fact that the two concepts are widely

different and opposed to each other", no other reason is

given does not appear to be clear or cogent. Statutory rules

could not have been struck down on such ambiguous reasoning.

Sub-rules (3) and (4), which have been struck down, say that

the relevant portion of the electoral rolls of the Assembly

constituency shall be the electoral rolls for the Gram

Panchayat/Panchayat Samiti/Zilla Parishad, whereas sub-rules

(5), (6) and (7) - which too have been struck down - deal

with and provide for the "First General Election". These

sub-rules too provide that the electoral rolls of the

Assembly constituency shall be split up appropriately for

the purpose of the First General Election in respect of Gram

Panchayat, Panchayat Samiti and Zilla Parishad, as the case

may be. These are treated as draft electoral rolls land are

published as such. After receipt of objections/claims, if

any, final electoral rolls are published. Thus, these sub-

rules are not only not inconsistent with Sections 176, 177

and 186, they are indeed made pursuant to the said sections

and are meant to carry out the purposes of the enactment as

a whole.

For the above reasons, we set aside the judgment of the

High Court declaring proviso (ii) to sub-rule (3) of Rule 3,

proviso (ii) to sub-rule (4) of Rule 6 and proviso (ii) to

clause (c) of sub-rule (4) of Rule 8 of the Tripura

Panchayats [Delimitation of Constituencies] Rules, 1993 and

sub-rules (3) to (7) of Rule 8-A of the Tripura Panchayats

[Preparation of Electoral Rolls ] Rules, 1993 as ultravires

the Constitution of India and Tripura Panchayats Act. We

declare the said provisions to be perfectly valid and

effective.

The civil appeal preferred by the State is accordingly

allowed with costs. The appellant's costs are estimated at

Rs.10,000/- consolidated.

Now coming to the appeal [arising from Special Leave

Petition (C) NO.10413 of 1994] preferred by the writ

petitioner, the only contention advanced is that the

Constitution and the Act contemplate the State Election

Commissioner to be an independent authority, not subject to

the control of the State government, whereas sub-rule (3) of

Rule 3 of the Tripura Panchayats [Constitution of State

Panchayat Election Commission] Rules, 1993 provides that the

tenure of the said Election Commissioner shall be foe a

period not exceeding six months at a time providing at the

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same time for reappointment and that such a provision

detracts from and militates against the concept of

independence of such authority. The contention of Sri

Jaideep Gupta, learned counsel for the writ petitioner, is

that the State Election Commissioner is akin to the Chief

Election Commissioner under the Constitution and that the

appointment of the State Election Commissioner should also

be on a permanent basis just as in the case of Chief

Election Commissioner. Limiting his tenure to a period not

exceeding six months and at the same time providing for a

reappointment diminishes and affects its independence, it is

submitted. We are unable to agree. Be that as it may, it is

not suggested that the elections conducted by the State

Election Commissioner were not properly of the said

limitation of he tenure. The contention, in our opinion, is

untenable and has rightly been rejected by the High Court.

We may clarify that we have dealt with only the

questions relating to the validity of the Rules in this

judgment . We declined to go into the validity or

correctness of the proceedings taken or acts done under

those Rules, since those are matters outside the purview of

the writ petition [See Anugrah Narain Singh v. State of

Uttar Pradesh [1996 (8) J.T.733 (S.C.)].

Accordingly, the appeal preferred by the writ

petitioner, Sri Ratanlal Nath, is dismissed. No costs.