1

AFR

Court No. - 41

Case :- WRIT - C No. - 53941 of 2015

Petitioner :- Suresh Jaiswal

Respondent :- State of U.P. and Another

Counsel for Petitioner :- S.K. Singh Paliwal,Shashi

Nandan

Counsel for Respondent :- C.S.C.

Along with

WRIC/54655/2015WRIC/55657/2015WPIL/53931/2015

WRIC/57449/2015WRIC/54398/2015WRIC/55274/2015

WRIC/54455/2015WPIL/55641/2015WRIC/54066/2015

WRIC/57152/2015WRIC/54064/2015WRIC/54074/2015

WRIC/55455/2015WRIC/54411/2015WRIC/55551/2015

WRIC/54407/2015WPIL/57248/2015WRIC/54710/2015

\WRIC/56520/2015WRIC/54713/2015WRIC/55525/2015

WPIL/54749/2015WRIC/55230/2015WRIC/54752/2015

WPIL/55343/2015WRIC/54756/2015 WRIC/55210/2015

WRIC/54051/2015WRIC/55562/2015WRIC/54589/2015

WRIC/55408/2015WRIC/53854/2015WRIC/55318/2015

WPIL/52668/2015WRIC/55575/2015WRIC/54666/2015

WRIC/55305/2015WRIC/54268/2015WRIC/55275/2015

WRIC/54400/2015WRIC/56517/2015WRIC/54225/2015

WRIC/56559/2015WRIC/55269/2015WRIC/54094/2015

WRIC/55308/2015WRIC/54606/2015WRIC/55561/2015

WRIC/54200/2015WPIL/55559/2015WRIC/54643/2015

WRIC/55552/2015WRIC/54057/2015WRIC/54625/2015

WRIC/55902/2015WRIC/53443/2015WRIC/57360/2015

WRIC/54042/2015WRIC/56692/2015WRIC/54503/2015

WRIC/55008/2015WRIC/53978/2015 WRIC/54435/2015

WPIL/54040/2015 WRIC/54620/2015 WRIC/53845/2015

WRIC/54253/2015WRIC/54549/2015 WPIL/54629/2015

WRIC/54423/2015WRIC/54612/2015 WRIC/54291/2015

WRIC/54627/2015WPIL/53112/2015 WRIC/54425/2015

WPIL/53771/2015 WRIC/55726/2015

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Suneet Kumar,J.

1.Heard Shri Manish Kumar Pandey, learned counsel

appearing for the petitioner, Shri Neeraj Tripathi learned Addl.

Advocate General assisted by Shri Shashank Shekhar Singh

2

learned Addl. Chief Standing Counsel and Shri Tarun Agarwal

learned counsel appearing for the State Election Commission.

2.This Larger Bench has been constituted under the orders

of Hon'ble the Chief Justice on a reference made by the

Division Bench vide judgment and order dated 29.09.2015.

3.For the elections of Panchayats, namely Gram Panchayat,

Kshetra Panchayat, Zila Panchayat, State of U.P., process had

been initiated in the year 2015. During the said process, a

Government order dated 11.08.2015 was issued to adopt certain

procedure for reservation and allotment of seats with some

modification as provided in the earlier Government order dated

09.07.2010. After receipt of objections on the list of the

constituencies, it appears that the District Magistrate had

proceeded to decide all objections by means of an order dated

13.09.2015. It appears that at this stage, a number of writ

petitions were filed by different persons challenging the manner

and methodology adopted by the State Government in

delimitation of constituencies, reservation and allotment of

seats. Objections were raised on the decision of the State

Government vide Government order dated 05.09.2015 wherein

it was 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.

4.In addition to the challenge made against the decision of

the District Magistrate on the objections of the petitioner to the

list of reservation and allotment of seats, another issue raised

3

was that there was no justification for postponing the elections

of Gram Panchayats though the term of Gram Panchahyats was

about to expire and further that in Three-tier system, without

elections for Gram Panchayats, the constitution of Kshetra

Panchayat and Zila Panchayat was not possible. The relief,

thus, was sought to issue writ in the nature of mandamus

commanding the respondents to re-frame the reservation of

territorial constituency of Zila Panchayat.

5.Before the Division Bench, the original records from the

office of the District Magistrate in the matter of application of

reservation as per U.P. Panchayat Raj (Reservation and

Allotment of Seats and Offices) Rules' 1994 in respect of

particular seats in each District were summoned by the order

dated 22.09.2015. While examining the said record, certain

objections were made by the Division Bench in the order dated

23.09.2015, which is quoted in the referral order. On

24.09.2015, certain more records were examined by the Court

and it had framed the issues which arose for consideration

before it. The matter was fixed for further hearing on

28.09.2015.

6.The relevant observations of the Division Bench in the

order dated 24.09.2015 are quoted herein:-

"how can the elections for Zila Panchayat be held without the

first level of three tier panchayat elections, namely, village

panchayat elections being first held and then the

intermediatory level elections of kshetra panchayat."

7. It appears that on 24.09.2015, when the matter was

taken up, State had raised objections regarding maintainability

of the writ petitions before the District Magistrate. To

strengthen its stand, reliance had been placed upon the

4

judgment of the Coordinate Bench in the case of Rishipal

Singh vs. State of U.P. and others

1

; as well as in

Rajesh Kumar Singh vs. State of U.P. and other

2

. The

order dated 24.09.2015 passed in the case of Rishipal Singh

1

as reproduced in the referral order is relevant to be extracted

hereunder:-

"The relief which has been sought in these

proceedings which have been instituted as a public interest

litigation is as follows:

"A. Issue a writ order or direction in the nature of mandamus

directing the Respondent Authorities to cancel the reservation

of the seat of Ward No.18 of Zila Panchayat, Meerut to the

other backward class (OBC) category and instead of it the

said seat may be declared as Unreserved (UR) in the coming

Zila Panchayat Elections."

On 21 September 2015, the State Election Commission has

issued a notification for elections to the Zila Panchayats. 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. The petition is, accordingly, dismissed. There shall be

no order as to costs."

8.Having noticed the said order passed by the

Coordinate Bench, the Division Bench which has referred the

question to the larger Bench passed an order dated

28.09.2015 noticing the argument of learned counsel for the

1.Public Interest Litigation No.54008 of 2015

2.Public Interest Litigation No.51785 of 2015

1.Public Interest Litigation No.54008 of 2015

5

petitioners that constitutional remedies as provided under

Article 226 of the Constitution of India being basic feature of

the Constitution cannot be taken away and the Writ Court

can examine the legality of the statutory provisions, in case,

they are in violation of the constitutional provisions,

including the provisions contained in Article 14 of the

Constitution of India. It was argued that the Hon'ble Supreme

Court has already held that even the laws put under the 9th

Schedule are amenable to exercise of writ jurisdiction. The

provisions of U.P. Zila Panchayat Kshetra Panchayat

Adhiniyam' 1961 cannot be elevated to any higher position

than the Acts put in the 9th Schedule.

9.The arguments of the State-respondents, on the other

hand, was that the writ petitions were liable to dismissed in

view of the Constitutional bar contained in Article 240-O of

the Constitution. The Court though had proceeded to

examine the said question as reflected in its order dated

28.09.2015, but on 29.09.2015, on the arguments raised by

the learned Advocates for the parties, the Division Bench in

its referral order dated 29.09.2015, had recorded its

disagreement with the view taken by the Coordinate Bench

in the case of Rishi Pal Singh

1

(in its order dated

24.09.2015), and observed that the view taken by the said

Bench that once the notification for elections of Zila

Panchayat had been issued by the State on 21.09.2015, the

Constitutional bar under Article 243-O of the Constitution of

India in entertaining the writ petition got attracted, was not

correct.

10.After having considered the submissions advanced by

1.Public Interest Litigation No.54008 of 2015

6

the learned Advocates on the said issue, it has proceeded to

record in paragraph No.'11' of the referral order as under:-

“11. Having considered the submissions advanced by learned

counsels at bar with reference to the judgments relied upon,

we find that the self-imposed restrictions by a Writ Court

under Article 226 of the Constitution of India in matters of

holding of elections have been stringently resorted to, and any

interference in the process of elections is ordinarily

discouraged. In matters where process of election has

commenced interference by Writ Court at the intermediate

stage is ordinarily not to be resorted. It has been emphasized

time and again by the Hon'ble Supreme Court that once the

process of election has commenced, any person aggrieved

should be allowed to raise his grievance by filing an election

petition only. However, in cases where election is not being

held in accordance with the Constitution or there are inherent

defects or breaches of election law rendering the whole

election itself a farce, would warrant an interference under

Article 226 of the Constitution of India is the moot question?”

11. Proceeding further, the decision of the Constitution

Bench in the case of L. Chandra Kumar Vs. Union of

India and others

3

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. It was then observed in

paragraph No.'18' of the referral order that 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

3. 1997 (3) SCC 261

7

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 and, therefore, it could not confirm to the

view expressed by the Co-ordinate Bench in the judgement and

order dated 24.09.2015 in Rishi Pal

1

.

12. In paragraph No.'20' of the referral order, the

Division Bench has expressed the difficulty it faced to accept

the view taken by the Co-ordinate Bench in Rishi Pal

Singh

1

, in the following words:-

“20. This Bench finds it difficult to accept the law as laid

down by the Division Bench of this Court in Public Interest

Litigation (PIL) No. 54008 of 2015 (Rishipal Singh Vs.

State of U.P. And others) to the effect that though

reservation of seats for the elections is under challenge but

once the notification for election of Zila Panchayat has

been issued, it would not be appropriate or proper for the

Court to entertain the petition once the electoral process

has been initiated, in view of the constitutional bar

contained in Article 243-O of the Constitution of India.”

13. It has further recorded in paragraph No.'21' as

under:-

“21. In our opinion, 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

1.Public Interest Litigation No.54008 of 2015

1.Public Interest Litigation No.54008 of 2015

8

under Article 226 of the Constitution of India. He has no

remedy elsewhere. His challenge to the process of

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.”

14. In the light of the above, following questions have

been referred for examination by the Larger Bench:-

"(a) Whether, constitutional remedy of judicial review under

Article 226 of the Constitution of India, which has been

recognised as a basic feature of constitution in L. Chandra

Kumar Vs. Union of India, 1997 (3) SCC 261 could be

curtailed in view of the bar created under Article 243-O of

the Constitution of India?

(b) 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:

(i)vires of election laws is questioned,

(ii) Government Orders issued for effecting the election are

stated to be in breach of election laws/arbitrary,

(iii) actual implementation by the State of election

laws/Government Orders is stated to be in breach of the

provisions,

(iv) any other similar issue?

(c) Whether, the High Court in 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

9

defects or breaches of the election law making the entire

election a mockery or a farce?

(d) Whether, this Court would permit ongoing process of

election, in the facts of the present case, or not?

(e) 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?

(f) Whether, the judgment of the Division Bench in the case

of Rishipal Singh vs. State of U.P. and others (supra) has laid

down the correct law?

15. It is pertinent to note at this stage, that at the point of

time when the referral order was passed, the elections were in

progress and various writ petitions were filed raising different

issues including some relating to reservation of the various

constituencies.

16. It is admitted that the elections were held in the year

2015 and the Panchayats in Three-tier system namely Gram

Panchayat, Kshetra Panhayat and Zila Panchayat had been

constituted. Nothing has been brought before us to state that

any issue having legal ramifications on the elections held in the

year 2015 have been brought to challenge which would have

required invocation of powers of this Court under Article 226

of the Constitution of India.

17. In the light of the abovenoted facts, we first proceed

to examine as to whether in all propriety, this Larger Bench has

to answer the questions referred to it or issues have become

academic now. We also propose to examine the circumstances

in which the reference has been made to note as to whether the

10

decision of the Co-ordinate Bench in Rishipal Singh

1

,

correctness of which has been doubted by the referral Bench,

came in its way and it could not have entered into or

adjudicated the dispute, on its own, in view of the conflict of

opinion. Further, whether the doubts raised by it to make the

reference before the Larger Bench, in fact, arose or not.

18. As far as the first issue is concerned, as noted above,

the writ petitions in this bunch were filed against the order of

the District Magistrate, Azamgarh in the matter of reservation

and allotment of constituencies for Three-tier Panchayat

elections, i.e. Gram Panchayat, Kshetra Panchayat and Zila

Panchayat. The prayer for mandamus was to command the

respondent to re-frame the reservation of territorial

constituencies so that a particular ward may not be reserved in

any category. The challenge was, thus, to the realtime exercise

done by the State Government for delimitation, reservation and

allotment of seats. In so far as the Gram Panchayats are

concerned, the entire procedure for the purpose has been

provided in Section 11 (f) & 12 of the U.P. Panchayat Raj Act'

1947 read with the U.P. Panchayat Raj (Reservation and

Allotment of Seats and Offices) Rules' 1994. Another dispute

with regard to the Government notification dated 13.09.2015

was only this much that without elections of Gram Panchayats,

which were postponed by the State Government by the said

notification, the constitution of Kshetra Panchayat and Zila

Panchayat was not possible.

19. It is informed by Sri Neeraj Tripathi learned

Additional Advocate General and Sri Tarun Agarwal learned

counsel for the State Election Commission that the elections

1.Public Interest Litigation No.54008 of 2015

11

for constitution of Three-tier local bodies namely Gram

Panchayat, Kshetra Panchayat and Zila Panchayat had been

completed in the year 2015 itself. The dispute raised by the

petitioners before the Division Bench that the constitution of

Kshetra Panchayat and Zila Panchayat would not be possible

in view of the postponement of elections of Gram Panchayat,

therefore, was rendered infructuous in the year 2015 itself.

20. Now the issue with regard to the reservation and

allotment of territorial constituencies for the elections of Zila

Panchayat and Kshetra Panchayat, i.e. actual exercise done by

the State is concerned, it appears that a preliminary objection

was raised by the State and the Election Commission regarding

maintainability of the writ petition in view of the issuance of

notification for election to the Zila Panchayat by the State

Election Commission. The argument was that in view of the

Constitutional bar contained in Article 243-O of the

Constitution, once the election process had been initiated, the

exercise of writ jurisdiction under Article 226 of the

Constitution of India to challenge the actual exercise of

reservation and allotment of seats, was not possible. In other

words, the plea of bar of Article 243-O of the Constitution of

India was raised by the State to entertain the constitutional

remedy in view of the nature of the dispute before the Division

Bench.

21. On the said plea, with due regards, the Division

Bench was required to examine the issue and express its

opinion. The only reason why the Division Bench opined that

the matter should be referred to the Larger Bench was, that it

was of the view that the Constitutional bar contained in Article

243-O of the Constitution would not be an absolute bar on the

12

jurisdiction of the Constitutional Courts under Article 226 of

the Constitution of India and that a Co-ordinate Bench while

delivering the judement and order dated 24.09.2015 took a

contrary view.

22. We have already reproduced the order of the Co-

ordinate Bench in the preceding paragraph, which was found

in contradiction by the Division Bench referring the matter to

the larger Bench.

23. Having carefully read the order in Rishi Pal

Singh

1

, it is found that the Division Bench therein had refused

to entertain the writ petition, at the outset, noticing that in view

of the notification issued by the State Election Commission,

considering the Constitutional bar contained in Article 243-O

of the Constitution, it would not be appropriate or proper for

the Court to entertain the public interest writ petition, once the

election process had been initiated. Expressing the said view,

the Court had declined to exercise writ jurisdiction under

Article 226 of the Constitution on that ground only. From the

bare reading of the said judgment, we may notice here that the

opinion of the Division Bench in Rishi Pal Singh

1

was not

on any question of law adjudicated by it, rather it was passed

in view of the nature of relief sought in the case before it. The

challenge to the election process was brought by way of a

Public Interest Litigation. The Court therein found that after

notification of the Election Commission, the issues raised

before it could not be adjudicated. In our opinion, the

dismissal of PIL in Rishi Pal Singh

1

on the ground stated

therein was neither a law laid down by it nor was binding as a

precedent upon the Bench referring the matter, restricting it

1.Public Interest Litigation No.54008 of 2015

1. Public Interest Litigation No.54008 of 2015

1.Public Interest Litigation No.54008 of 2015

13

from entering into the preliminary objection or the controversy

in the bunch of writ petitions raised before it.

24. It appears that only reason which weighed in the

mind of the Division Bench that the matter should be referred

to the Larger Bench as various questions of law of general

public importance may arise in the trial of the said cases or

other cases in future.

25. The observations in paragraph Nos.'20' & '21' of the

reference order quoted above reflect the difficulties expressed

by the Division Bench in deciding the issues raised before it.

26. In our opinion, the dismissal of the Public Interest

Litigation by the Division Bench in Rishi Pal Singh

1

was

more of a question of judicial propriety rather than on the

power to exercise jurisdiction to adjudicate on the question of

law raised before that Bench.

27. It appears that within the limits of self-imposed

restrictions which is to be exercised in the matter of elections

by a Writ Court, the Division Bench dealing with the Public

Interest Litigation had refused to entertain the writ petition

after notification was issued by the Election Commission.

28. In this context, it would not be out of place to

mention here that the Constitutional Bench of the Apex Court

in the case of Laxmi Charan Sev Vs. A.K.M. Hasan

Usman

4

has made a clear statement in paragraph No.'28' as

under:-

“28.We have expressed the view that preparation and revision

of electoral rolls is a continuous process, not connected with

any particular election. It may be difficult consistently with

1.Public Interest Litigation No.54008 of 2015

4. AIR 1985 SC 1233

14

that view, to hold that preparation and revision of electoral

rolls is a part of the 'election' within the meaning of Article

329(b). Perhaps, as stated in Halsbury in the passage

extracted in Ponnuswami, the facts of each individual case

may have to be considered for determining the question

whether any particular stage can be a part of the election

process in that case. In that event, it would be difficult to

formulate a proposition which will apply to all cases alike.”

29. The aforesaid observations though were made in the

interim order of the courts but in the final order, the

Constitutional Bench reiterates the above view in the following

words:-

"The order dated March 30, 1982 which we will presently

reproduce, contains our reasons in support of this conclusion. Very

often, the exercise of jurisdiction, especially the writ jurisdiction

involves questions of propriety rather than of power. The fact that

the Court has the power to do a certain thing does not mean that it

must exercise that power regardless of the consequences."

30. The question of conflict between the jurisdiction

conferred in the High Court under Article 226 and the embargo

created by the Constitution under Article 329 was firstly

considered in the case of N.P. Ponnuswami vs Returning

Officer, Namakkal.

5

The law enunciated in N.P.

Ponnuswami (supra)

5

was extensively dealt with in

Mohindra Singh Gill Vs. Chief Election

Commissioner

6

, the Constitutional Bench noticed two types

of decisions and two types of challenges in paragraph No.'29'

of the report:-

(i)The first relates to proceedings which interfere with

the progress of the election and;

5.AIR 1952 SC 64

5.AIR 1952 SC 64

6. 1978 (1) SCC 405

15

(ii)the second which accelerates the completion of

elections and acts in furtherance of an election.

A third category has been evolved in the judgment rendered

by the Apex Court in the case of Election Commission of

India Vs. Ashok Kumar & others

7

, wherein the Apex

Court has observed that there may be a situation where

something has happened which is calling foul of the law of

election and by the time an election petition is filed and judicial

assistance secured, material evidence may be lost. If the wrong

committed is left undone in such a case until after the result of

election, the relief actually given may not amount to anything

at all. The invocation of the constitutional remedy under

Article 226 or Article 32 of the Constitution of India may be

possible even during the election process.

31. We may note that we are not called upon to answer

whether in the facts of the cases at hand, the aforesaid third

category of question for interference in election arises or not.

32. In Election Commission of India Vs. State

of Haryana

8

, the Constitutional Bench noticed the following

observations in interim order of A.K.M. Hasan

4

with approval:-

“The imminence of the electoral process is a factor which

must guide and govern the passing of orders in the exercise of

the High Court's writ jurisdiction. The more imminent such

process, the greater ought to be the reluctance of the High

Court to do anything, or direct anything to be done, which

will postpone that process indefinitely by creating a situation

in which, the Government of a State cannot be carried on in

accordance with the provisions of the Constitution.”

7.2000 (8) SCC 216

8. AIR 1984 SC 1406

4.AIR 1985 SC 1233

16

33. In Digvijiay Mote Vs. Union of India

9

,

Anugrah Narain Singh & another Vs. State of U.P. &

others

10

, C. Subrahmanyam Vs. K. Ramanjaneyullu &

others

11

, it is held that where non-compliance of provision of

the Act, governing the election is a ground for election petition,

the writ petition under Article 226 of the Constitution of India

should not have been entertained.

34. The law settled by the Apex Court in Ashok

Kumar

7

has been followed consistently in umpteen number of

decisions.

35. We may clarify that we are not on the issue of

entertainability of the bunch of writ petitions by the Division

Bench as the said issue was required to be adjudicated by it in

view of law laid down by the Apex Court in the matter of

scope of interference in the election process in writ jurisdiction.

36. We are only scrutinizing whether the decision in

Rishipal

1

was binding on the Division Bench and it could not

have addressed the controversy before it on the question of

entertainability of the writ petitions.

37. In the case of Tika Ram and others versus

State of U.P and others

12

, the Apex Court has observed

that a decision does not become precedent unless a question is

directly raised and considered therein, so also it does not

become the law declared unless the question is actually

decided upon.

9.1993 (4) SCC 175

101996 (6) SCC 303

111998 (8) SCC 703

7.2000 (8) SCC 216

1.Public Interest Litigation No.54008 of 2015

12. 2009 (10) SCC 689

17

38. With greatest of respect, we are of the view that

there was no conflicting opinion facing their Lordships,

preventing them from deciding the question itself.

39. After due deliberations of the Counsels for the

parties, hearing them at length, we do not find that the

questions which were framed by the Division Bench in the

referral order, actually arose for adjudication before it in the

bunch of writ petitions. For instance, on question (b), we find

that before the Division Bench:-

(i) vires of election law was not questioned;

(ii) arbitrariness of the government order issued in the process

of election being in breach of election laws was not an issue;

(iii)the issue regarding actual implementation by the state of

the election laws being in breach of the legal provision may be

the issue which would have arisen for consideration, had it

decided to entertain the writ petition.

40. Similarly, the questions (c), (d), (e) are the issues of

larger general importance framed by the Division Bench which

may or may not have arisen for consideration, had it entered

into the issues on merits.

41. We, however, do not find it proper to express any

opinion as to whether the said issues would have arisen, had

the Division Bench entertained the writ petition, as this is not

the question before us to answer.

42. Now, Question-(a) pertains to the law laid down by

the Apex Court in L. Chandra Kumar (supra) which, in our

opinion, could have been read and duly applied by the Division

Bench for answering the question before it, i.e., as to whether it

would entertain the writ petition in the light of the notification

18

issued by the State Election Commission for elections of the

Zila Panchayat and the bar under Article 243-O of the

Constitution of India is attracted or not. The said issue though

has been discussed in few paragraphs of the reference order

and some views have been expressed by the Division Bench in

paragraph Nos.'20' & '21' of the reference order but whether the

said question arose for consideration in the facts and

circumstances of these cases, i.e. in the nature of the

controversy and the issues before it or not, is not clear.

43. Lastly, question (f), with due respect, is not a proper

question as expressed above. The Division Bench in the case of

Rishi Pal Singh

1

did not lay down any legal proposition so

as to make it a binding precedent on any other Co-ordinate

Bench or the Benches of lesser strength of this Court.

44. Thus, in absence of a binding precedent, there was

no conflict facing the Division Bench which has made the

reference. The question No.(f) regarding the correctness of law

laid down by the Division Bench in Rishi Pal Singh

1

, in our

respectful opinion, did not arise at all.

45. The point is whether this is a reference under

Chapter V Rule 6 of the Allahabad High Court Rules' 1952:-

46. The scheme of Chapter V Rule 6 of the Allahabad

High Court Rules' 1952 provides as under:-

“6. Reference to a larger Bench:- The Chief Justice

may constitute a Bench of two or more Judges to decide a

case or any question of law formulated by a Bench hearing a

case. In the latter event the decision of such Bench on the

question so formulated shall be returned to the Bench hearing

1Public Interest Litigation No.54008 of 2015

1.Public Interest Litigation No.54008 of 2015

19

the case and that Bench shall follow that decision on such

question and dispose of the case after deciding the remaining

questions, if any, arising therein.”

47. The reading of the said provision goes to show that

on conflicting opinion expressed by two Benches of the same

strength, larger Bench may be constituted by Hon'ble the Chief

Justice to decide the questions of law formulated by the Bench

hearing the case.

48. Before a Full Bench of this Court in Suo Moto

Action Taken by the Court Vs. I.C.I.C.I. Bank

Limited, Allahabad

13

, a question arose as to whether the

reference made by the Division Bench was proper or not and

further whether the academic issues on question of law had to

be answered by the Full Bench.

49. Considering the scope of Chapter V of Rule 6 of the

High Court Rules, it was held therein that reference cannot be

made for the mere necessity of creating a precedent. If a

question of law of whatever importance arises before the

Division Bench, ordinarily, the Division Bench should decide

it itself and not refer it to a Larger Bench, unless there is

conflict of precedent, which makes it impossible for the

Division Bench to decide this way or other. It was further held

that where the questions of law are formulated by a Division

Bench for reference and decision, the case has to be alive

before the Division Bench itself. Thus, in other words, in both

eventuality where there is no conflict of precedent or the case

is not alive before the Division Bench, reference to a Larger

Bench should not be made for the mere necessity of creating a

13. 2006 (4) ADJ 106

20

precedent. Paragraph '13', '14', '18', '19', '20' of the said report

are relevant to be reproduced herein:-

“13. We respectfully follow the Kerala special Bench

judgment relied upon by Mr. Mitra appeared for ICICI,

being the case of Babu Premarajan reported at . Passages

would be found at page 449 to the effect that if a question of

law of whatever importance arises before the Division

Bench, ordinarily the Division Bench should decide it itself

and not refer it to a larger Bench, unless there is a conflict of

precedent, which makes it impossible for the Division

Bench to decide this way or the other. This was opined in

Kerala, even though there was a rule of the High Court

which, on a plain reading, appeared to allow two Hon'ble

Judges of a Division Bench to refer any questions to a larger

Bench merely on their Lordships agreement.

14. As such, if the writ petition before the Hon'ble Division

Bench is still alive, the Division Bench is fully at libertyin

its own aisdoun to decide all the questions itself and indeed

all the questions purportedly got referred to the larger

Bench.

18. The other point is whether it is a reference under

Chapter V Rule 6 that the Division Bench has in reality

resorted to. The said rule is quoted below:-

“6. Reference to a larger Bench.-The Chief Justice may

constitute a Bench of two or more Judges to decide a case or

any question, of law formulated by a Bench hearing a case.

In the latter event the decision of such Bench on the

question so formulated shall be returned to the Bench

hearing the case and that Bench shall follow that decision on

such question and dispose of the case after deciding the

remaining questions, if any, arising therein .

19. The first part of the rule refers to constitution of a Bench

by the Chief Justice himself by use of his own

21

administrative discretion. This is not one such case.

20. So far as the second part of the rule is concerned, where

the questions of law are formulated by a Division Bench for

reference and decision, the case has to be alive before the

Division Bench itself. If the case is alive in the present case,

then also a reference under the second limb, is, with the

greatest of respect, improper, because nothing prevented the

Division Bench from deciding the questions itself. There

were no conflicting Division Benches facing their Lordships

and as such, the Kerala principle mentioned above applies

with full force.”

50. In saying so, the Full Bench has relied upon the Full

Bench judgment of Kerala High Court in Babu Premarajan

Vs. Superintendent of Police, Kasaragode & others

14

,

wherein even the rule of the Kerala High Court permitted the

Division Bench to refer any question to a Larger Bench merely

on their Lordships agreement.

51. The said Rule of Kerala High Court Rules' which

was subject matter of consideration therein reads as under:-

….......Powers of a Bench of two Judges.--The powers of

the High Court in relation to the following matters may be

exercised by a Bench of two Judges, provided that if both

Judges agree that the decision involves a question of law

they may order that the matter or question of law be

referred to a Full Bench.........

52. The Kerala High Court had noted therein the

meaning of word "reference" in Stroud's Judicial Dictionary of

Words and Phrases, 4th edition, Volume I, page 65, to observe

in para '49' as under:-

“Meaning of Reference:- Reference has been stated to

mean the sending of a pending case, for some question

14. AIR 2000 (2) 417 (FB)

22

therein, by the Court in which it is pending to a private

person or some other tribunal to hear and determine the

cause of the question.”

Para '49' of the report:-

49. The last question referred for our decision Is viz.

whether a reference by a Division Bench to a Full Bench is

permissible merely because both Judges in a Division

Bench so agree that the decision involves a question of law.

Section 4 has been reproduced in para 6 above. It deals

with the powers of a Bench of two Judges, Indeed powers

of the High Court. The proviso says that when both Judges

agree that the decision involves a question of law, they may

order that the matter or question of law be referred to a Full

Bench. Whereas in Section 3, a single Judge is required to

refer the entire case for being heard and determined by a

Bench of two Judges, Under Section 4, a Division Bench

may refer the entire case or question of law to a Full Bench.

Assuming that to be so, it is difficult to appreciate why a

Division Bench should not decide the question of law and

merely because both the Judges agree that the decision

involves a question of law. It should be referred to a Full

Bench or the entire matter be referred to a Full Bench.

If a question of law arises before a Division Bench, which

situation is not uncommon, is it open to a Division Bench

not to decide it and refer it to a Full Bench. One can

understand when there is a conflict of Division Bench

decisions on a question of law and there is no subsequent

decision of the Apex Court on the point; in such a situation

a reference to Full Bench would undoubtedly be justified.

In the light of the cases we have discussed above, there is

no doubt that the power of two Judges in a Division Bench

to refer a question of law to a Full Bench must be exercised

23

sparingly and only in cases where there is a conflict of

opinion of Division Benches of this Court and there is no

latter decision of the Apex Court on that point. Obviously,

if there is a subsequent decision of the Apex Court which

resolves the conflict or, in the light of which, one of the

Division Bench decisions must be taken to be impliedly

overruled and the other Impliedly upheld, the Division

Bench is obliged to follow the view which has been

impliedly upheld by the subsequent decision of the Apex

Court. Our answer to the third question would, therefore, be

that the provisions of Section 4 of the Act contemplate a

reference by a Division Bench, not merely because both the

Judges of the Division Bench agree that the decision

involves a question of law. Such a reference by a Division

Bench to a Full Bench is permissible only if there is a

conflict of Division Bench decisions of this Court and there

is no latter decision of the Apex Court resolving the said

conflict directly or impliedly.”

53. Thus, from the above discussion, it is found that

when it appears to a Single Bench or a Division Bench that

there are conflicting decisions of the Co-ordinate strength of

the same Court or that a question of law of importance having

conflicting views arises in the trial of a case, the Judge or the

Bench passes an order that the papers be placed before the

Chief Justice of the High Court with the request to form the

Special or Full Bench to hear and decide the case on the

questions raised in the case.

54. Normally, the judge concerned should make a

reference briefly indicating reasons for his views which

necessitated to refer the matter to a Larger Bench but the same

is not indispensable.

24

55. At the same time, we may clarify that if reasons are

not stated in respect of the order of reference, the Full Bench

cannot decline to answer the questions referred to it. The brief

reasons for making a reference, however, has to be indicated so

as to enable the Larger Bench to know the minds of Hon'ble

Judge(s) making the reference.

56. In the instant matter, as expressed above, we could

not find any conflict between two decisions which warranted a

reference before the Larger Bench.

57. The questions, in the reference order, framed by the

Division Bench, assuming conflict of opinion in the election

matters, with due respect, are sweeping. On a plain reading of

the order of reference, it appears that their Lordships have

referred the questions to the Larger Bench with a view to create

a precedent assuming that those questions of law of importance

may arise in election matters and an authoritative

pronouncement of a Larger Bench is needed on the subject.

58. The pronouncement by a Full Bench, with due

regards to the learned Judges referring the matter, on

hypothetical conflict, would not be a proper judicial exercise.

59. We may note that there is difference between the

question whether a writ petition would lie to the High Court

and as to the scope of interference in writ jurisdiction. From the

decisions referred above, it can be seen that judicial

intervention in election matters should be minimal. Though,

there cannot be an absolute bar in exercise of discretionary

jurisdiction in a writ by the Constitutional Court. Each matter

has to be examined with due care and circumspection by the

Court keeping in mind the self imposed limitations and the

25

Constitutional bar under 243-O of the Constitution of India.

There cannot be a straight-jacket formula. The whole idea of

self imposed limitations is to provide an internal remedy in

such cases without compelling the parties to go all the way to

the Constitutional courts or increase the burden of that Court,

unnecessarily.

60. In our considered view, an issue being of importance

by itself, cannot be a ground for referring the matter to the

Larger Bench.

61. Further, the last question which remains to be

considered that if nothing survives, then answering the

questions referred, as issues of general importance, by us

would be an academic exercise. The Full Bench in Suo Moto

Action

13

has held that such an exercise is beyond the

jurisdiction of the Court. Paragraph Nos.'24', '25' & '26' are

relevant to be quoted as under:-

“24.….........It is the problem of the Court having no

jurisdiction to answer questions of law merely

academically and in the vacuum. Mr. Prasad has already

filed another writ petition No. 13778 of 2006 where by he

specifically challenges the same contract of the debt

collector as being contrary to public policy. But in the case

before the Division Bench, which is before us, either

nothing survives or something survives for which the

Division Bench is itself to give its decision including those

on points of law.

25. If nothing survives, then our answering the questions

referred as public interest law points, would suffer from

this problem that, the declaration of law would be wholly

13. 2006 (4) ADJ 106

26

academic and a mere enunciation of law made by the

Court without there being a case surviving in which to

make the pronouncement. That such declaration might be

used later on by the parties to have even their own rights

declared, in one particular manner, is no reason or

argument why the Court can have seisin or jurisdiction

over mere points of law referred as such.

26. The Courts have jurisdiction to decide on points of law

only when those arise in relation to and are incidental to

questions raised by parties affecting their own rights,

liabilities and interest. The Court is all the time deciding

questions of law, but it is a paradox that the Court has no

jurisdiction to decide a question of law, and a question of

law only, like a Professor answering questions to a

persistent law student.”

62. We, therefore, find that the questions referred are

hypothetical and are only of the academic importance as it is

not known whether the issues raised survive or not. The

reference cannot be answered by the Larger Bench even if it is

of the view that the settled law has not been considered by the

Division Bench while making the reference. Furthermore, the

questions referred cannot be answered as questions of general

importance as there was no conflict.

63. Moreover, from amongst the questions referred,

those which arise in the facts and circumstances of the instant

case(s), if alive, are left open to be answered by the Division

Bench.

64. We may clarify that we do no express any opinion as

to whether the issues raised in the bunch of writ petitions are

still alive or not.

27

65. We, however, hold that the reference to the Full

Bench was not properly made and it is annulled, accordingly.

66. It is further clarified that the observations made

herein above are in order to examine whether the reference was

properly made and none of them would cause prejudice to the

rights and contentions of the parties in any proceeding whether

in the bunch before the Division Bench, or in any other matter.

67. The reference to the Larger Bench, accordingly,

stands answered.

68. The writ petitions shall now be placed before the

regular Bench according to the roster for disposal in light of the

above.

Order Date :-20.12.2019

Himanshu

(Sunita Agarwal,J.)

(Mahesh Chandra Tripathi,J.)

(Suneet Kumar,J.)