PETITIONER:
ELECTION COMMISSION OF INDIA
Vs.
RESPONDENT:
MOHD. ABDUL GHANI AND ORS.
DATE OF JUDGMENT01/11/1995
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
SINGH N.P. (J)
VENKATASWAMI K. (J)
CITATION:
1995 SCC (6) 721 JT 1995 (7) 590
1995 SCALE (6)155
ACT:
HEADNOTE:
JUDGMENT:
JUDGMENT
J.S. VERMA, J.:
Sixteen villages in the territorial division of
District Murshidabad on the west bank of river Ganges in the
State of West Bengal formed part of 8-Jangipur Parliamentary
Constituency, and the elections in 1977, 1980 and 1982 were
held on this basis. This is how these villages were
described in the Delimitation of Parliamentary and Assembly
Constituencies Order, 1976 (for short, “the Delimitation
Order, 1976″). However, the river Ganges having started
changing its course in 1957, ultimately brought about the
change because of which these 16 villages came to be located
towards the east bank of the river. After this change these
villages come to form part of the territorial division named
as District Malda. The State Government made the
consequential changes in the description of these villages
when they become part of District Malda for all
administrative purposes. In spite of this geographical
change resulting in inclusion of these 16 villages in the
territorial division of District Malda for administrative
purposes, the position of these villages remained unaltered
for election purposes and they continued to form part of 8-
Jangipur Parliamentary Constituency in accordance with the
Delimitation Order of 1976 made on the basis of the previous
census held in 1971. The next census is now due after the
year 2000.
The respondents who are residents of these villages
filed a writ petition in 1984 in Calcutta High Court
claiming that as a result of the above geographical change,
these 16 villages should now form part of the Malda
Parliamentary Constituency since they have become a part of
District Malda instead of the earlier District Murshidabad.
It was claimed that this is the duty cast on the Election
Commission to make such a change by virtue of Section
9(1)(b) of the Representation of the people Act, 1950 (for
short “the R. P. Act, 1950). A writ of mandamus was claimed
in the writ petition to direct the Election Commission to
make this change. That writ petition has been allowed by a
learned Single Judge of the High Court, who has also granted
a certificate under Article 132 of the Constitution for
appeal to this Court. Hence this appeal.
The only question for decision is : Whether the above
geographical change resulting in these 16 villages becoming
part of District Malda when earlier they formed part of
District Murshidabad, requires these villages to be included
now in Malda Parliamentary Constituency instead of Jangipur
Parliamentary Constituency as shown in the Delimitation
Order, 1976 ? This question has to be answered with
reference to Section 9(1)(b) of the R.P.Act, 1950 and
Section 11(1)(b) of the Delimitation Act,1972 read with the
Third proviso to Article 82 of the Constitution of India.
The relevant provisions are as under :-
Constitution of India
“81. Composition of the House of
the people.- (1) Subject to the
provisions of article 331, the House of
the people shall consist of -
a)not more than five hundred and thirty
members chosen by direct election form
territorial constituencies in the
States, and
b) not more than twenty members to
represent the Union territories, chosen
in such manner as Parliament may by law
provide.
(2) For the purposes of sub-clause (a)
of clause (1) -
a) there shall be allotted to each State
a number of seats in the House of the
people in such manner that the ratio
between that number and the population
of the State is, so far as practicable,
the same for all States; and
b) each State shall be divided into
territorial constituencies in such
manner that the ratio between the
population of each constituency and the
number of seats allotted to it is, so
far as practicable, the same throughout
the State:
Provided that the provisions of sub-
clause (a) of this clause shall not be
applicable for the purpose of allotment
of seats in the House of the people to
any State so long as the population of
that State does not exceed six million.
(3) In this article, the expression
“population” means the population as
ascertained at the last preceding census
of which the relevant figures have been
published :
Provided that the reference in this
clause to the last preceding census of
which the relevant figures have been
published shall, until the relevant
figures for the first census taken after
the year 2000 have been published, be
construed as a reference to the 1971
census.”
“82. Readjustment after each
census.- Upon the completion of each
census, the allocation of seats in the
House of the people to the States and
the division of each State into
territorial constituencies shall be
readjusted by such authority and in such
manner as Parliament may by law
determine:
Provided that such readjustment
shall not affect representation in the
House of the people until the
dissolution of the then existing House:
Provided further that such
readjustment shall take effect from such
date as the president may, by order,
specify and until such readjustment
takes effect, any election to the House
may be held on the basis of the
territorial constituencies existing
before such readjustment:
Provided also that until the
relevant figures for the first census
taken after the year 2000 have been
published, it shall not be necessary to
readjust the allocation of seats in the
House of the People to the States and
the division of each State into
territorial constituencies under this
article.
R.P. Act. 1950
“9. Power of Election Commission
to maintain Delimitation Order up-to-
date.- (1) The Election Commission may,
from time to time, by notification
published in the Gazette of India and in
the Official Gazette of the State
concerned-
(a) correct any printing mistake in the
Delimitation of Parliamentary and
Assembly Constituencies Order, 1966, or
as the case may be, the Delimitation of
Parliamentary and Assembly
Constituencies Order, 1976 or any error
arising therein from inadvertent slip or
omission;
(a) make such amendments in the
Delimitation of Parliamentary and
Assembly Constituencies Order, 1976 as
appear to it to be necessary or
expedient for consolidating with that
Order any notification or order relating
to delimitation of Parliamentary or
assembly constituencies (including
reservation of seats for the Scheduled
Castes or the Scheduled Tribes in such
constituencies)issued under any Central
Act;
(b) where the boundaries or name of any
district or any territorial division
mentioned in the Order are or is
altered, make such amendments as appear
to it to be necessary or expedient for
bringing the Order up-to-date.
(2) Every notification under this
section shall be laid as soon as may be
after it is issued, before the House of
the People and the Legislative Assembly
to the State concerned.”
Dolimitation Act. 1972
“9. Delimitationi of onstituencies.-
(1) The Commission shall, in the manner
herein provided, then distribute the
seats in the House of the People
allocated to each State and the seats
assigned to the Legislative Assembly of
each State to single-member territorial
constituencies and delimit them on the
basis of the latest census figures,
having regard to the provisions of the
Constitution and the provisions of the
Acts specified in Section 8 and also to
the following provisions, namely :-
(a) all constituencies shall, as far as
practicable, be geographically compact
areas, and in delimiting them regard
shall be had to physical features,
existing boundaries of administrative
units, facilities of communication and
public convenience;
(b) every assembly constituency shall
be so delimited as to fall wholly within
one Parliamentary constituency;
(2) The Commission shall -
(d) thereafter by one or more orders
determine -
(i) the delimitation of
Parliamentary constituencies, and
(ii) the delimitation of assembly
constituencies,
of each State.
10. Publication of orders and
their date of operation.- (1) The
Commission shall cause each of its
orders made under section 8 or section 9
to be published in the Gazette of India
and in the Official Gazettes of the
States concerned.
(2) Upon publication in the
Gazette of India, every such order shall
have the force of law and shall not be
called in question in any court.
11. Power to maintain delimitation
orders up-to-date.- (1) The Election
Commission may, from time to time, by
notification in the Gazette of India and
in the Official Gazette of the State
concerned -
(a) correct any printing mistake in any
of the orders made by the Delimitation
Commission under section 9 or any error
arising therein from an inadvertent slip
or omission; and
(b) where the boundaries or name or any
district or any territorial division
mentioned in any of the said orders are
or is altered, make such amendments as
appear to it to be necessary or
expedient for bringing the orders up-to-
date, so, however that the boundaries or
areas or extent of any constituency
shall not be changed by any such
notification.
(2) Every notification under this
section shall be laid, as soon as may be
after it is issued, before the House of
the people and the Legislative Assembly
of the State concerned.”
(emphasis supplied )
Article 81 of the Constitution deals with composition
of the House of the People. Article 81(2)(b) indicates that
each State shall be divided into territorial constituencies
in such manner that the ratio between the population of each
constituency and the number of seats allotted to it is, so
far as practicable, the same throughout the State and
Article 81(3) indicates that the population means the
population as ascertained at the last preceding census.
Article 82 then provides for readjustment after each census
and the Third proviso therein makes it clear that until the
relevant figures in the first census taken after the year
2000 have been published “it shall not be necessary to
readjust the allocation of seacs in the House of the people
to the States and the division of each State into
territorial constituencies under this article.” This is the
prescribed limit within which readjustment can be made till
the next census figures have been published after the year
2000.
The Representation of the People Act, 1950, is an Act
to provide the allocation of seats in and the delimitation
of constituencies for the purpose of election to, the House
of People and the Legislatures of States, and certain
matters connected therewith. Section 9 thereof deals with
the power of Election Commission to maintain the
Delimitation Order up to date. The duty of the Election
Commission under Section 9 is to update the Delimitation
Order, 1976 in the manner provided therein. This power has,
therefore, to be construed in the context of the duty of the
Election Commission to update the Delimitation Order, 1976,
if any change takes place as specified in the provision. The
mandamus issued by the High Court in the present case is for
the performance of this obligation in accordance with
Section 9(1)(b), which is as under which is as under :-
“1) The Election Commission may from
me to time, by notification published in
the Gazette of India and in the Official
Gazette of the State concerned, -
(b) where the boundaries or name of any
district or any territorial division
mentioned in the Order are or is
altered, make such amendments as appear
to it to be necessary or expedient for
bringing the Order up-to-date.”
This provision is attracted “where the boundaries or name of
any district or any territorial division mentioned in the
order are or is altered”, to “make such amendments as appear
to it to be necessary or expedient for bringing the order
up-to-date.” It means that where there is any alteration in
the boundaries or in the name of any district or any
territorial division mentioned in the order, such amendments
which have become necessary to update the Delimitation
Order, should be made. According to the respondents (writ
petitioners) and as held by the High Court, this duty can be
performed in the present case only by inclusion of the
aforesaid 16 villages in the Malda Parliamentary
constituency and their exclusion from the Jangipur
Parliamentary Constituency of which they form a part as
shown in the Delimitation Order, 1976. The question is:
Whether the Delimitation Order can be made up-to-date only
by change of the boundaries of these two constituencies, as
suggested or by change of the description of these villages
in the Delimitation Order, 1976, describing them now as part
of District Malda instead of District Murshidabad without
disturbing their continuance as part of the Jangipur
Constituency ? The relevant provision in the Delimitation
Act, 1972 must also be seen now.
The Delimitation Act, 1972 is an Act to provide for the
readjustment of the allocation of seats in the House of the
people to the States and the division of each State into
territorial constituencies for elections to the House of the
people etc., and for matters connected therewith. Section 9
prescribes the manner in which the Commission shall
distribute the seats in the House of the people allocated to
each State and delimit them on the basis of the latest
census figures having regard to the provisions of the
Constitution and the provisions of the Acts specified in
Section 8 and the provisions specified therein. Section 10
prescribes the mode of publication of orders of the
Commission and their date of operation; and adds that ” upon
publication in the Gazette of India, every such order shall
have the force of law and shall not be called in question in
any court.” Section 11 (1)(b) then confers power on the
Election Commission to maintain Delimitation Orders up to
date which is as under :-
“(1) The Election Commission may, from
time to time, by notification in the
Gazette of India and in the Official
(b) Where the boundaries or name of any
district or any territorial division
mentioned in any of the said orders are
or is altered, make such amendments as
appear to it to be necessary or
expedient for bringing the orders up-to-
date, so, however, that the boundaries
or areas or extent of any constituency
shall not be changed by any such
notification”
(emphasis supplied )
A comparison of Section 11(1)(b) of the Delimitation Act
1972 with Section 9(1)(b) of the R.P. Act, 1950 shows that
except for the last part of Section 11(1)(b) it is the same
as Section 9(1)(b) of the R.P. Act, 1950; and the additional
words in Section 11(1)(b) are - “so, however, that the
boundaries or areas or extent of any constituency shall not
be changed by any such notification.” These additional words
leave no doubt that the power to maintain Delimitation
Orders up-to-date conferred on the Election Commission is
subject to the restriction that in updating the Delimitation
Orders occasioned by an alteration of the boundaries or name
of any district or any territorial division it does not make
any change in the boundaries or areas or extent or of any
constituency as shown in the Delimitation Order. Obviously,
the exercise required to be performed by the Election
Commission as a result of any alteration in the boundaries
or name of any district or any territorial division
mentioned in the Delimitation Order has to be made only by
changing the description of that area which has undergoing a
geographical change to correctly describe that part of the
constituency, the boundaries, area and extent of the
constituencies remaining the same, i.e., unaltered. In other
words, there is a specific restriction against any
alteration or change in the boundaries or area or extent of
any constituency as shown in the Delimitation Order and the
exercise of updating the Delimitation Order has to be made
merely for the purpose of correcting the description of that
part of the constituency which has undergone a change in
description because of the subsequent change in the
boundaries or name of any district or any territorial
division mentioned in the Delimitation Order.
There can be no doubt that Section 11(1)(b) of the
Delimitation Act, 1972 is incapable of any other
construction since it does not permit the making of any
change in the boundary or area or in the extent of the
constituency as described in the Delimitation Order because
of the express prohibition therein. Section 9(1)(b) of the
R.P. Act, 1950, must be construed similarly for a harmonious
construction of both these provisions. If the same words
which are used in Section 9(1)(b) are used also in Section
11(1)(b) with this further addition containing the express
restriction, there is no occasion to construe Section
9(1)(b) of the R.P. Act, 1950 differently to permit an
exercise expressly forbidden by Section 11(1)(b) of the
Delimitation Act, 1972.
In our opinion, the entire scheme of these enactments
and the nature of power conferred on the Election Commission
to merely update the Delimitation Order by making the
necessary changes on account of Subsequent events to correct
the description in the Delimitation Order which has become
inappropriate, lead to the conclusion that the power of the
Election Commission under these provisions is only of this
kind. This power cannot extend to alteration of the
boundaries or area or extent of any constituency as shown in
the Delimitation Order. The prayer made in the writ petition
filed in the High Court which has been granted by the High
Court is contrary to the express prohibition contained in
Section 11(1)(b) of the Delimitation Act, 1972. This being
so, a mandamus could not be issued to the Election
Commission to perform an exercise expressly forbidden by
law. This appeal has, therefore, be allowed.
Consequently, the appeal is allowed. The judgment of
the High Court is set aside.