Civil Writ Petition No.10869 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-18 .1.2011 Sukhwinder Kaur wife of Mehar Singh ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.K.R.Dhawan, Advocate for the petitioner. Mr.R.S.Rawat, Deputy Advocate General, Punjab for respondent Nos.1 to 5. Mr.Harinder Sharma, Advocate for respondent No.6. M ehinder S ingh S ullar , J. (Oral) The matrix of the facts, which needs a necessary mention for a limited purpose of deciding the core controversy involved in the instant writ petition and emanating from the record, is that in pursuance of Notification dated 12.5.2008 (Annexure P1) issued under Section 12 of the Punjab Panchayati Raj Act, 1994 (hereafter to be referred as “the Act”), the Deputy Commissioner, Ferozepur has reserved/notified the office of Sarpanch of Gram Panchayat of Basti Sohan Singh (Abadi Jorra) of Zira Block 69 as 'general category'. 2. Sequelly, the Secretary to Government of Punjab notified five posts of Panches, out of which, two posts were reserved in general category, one for women, one for scheduled caste, nil for scheduled caste woman and one for backward class, vide schedule (Annexure P2) on the basis of population. The reservation was repeatedly changed from time to time and ultimately official respondents issued another letter/order dated 9.6.2008 (Annexure P11), rectifying/reserving the posts of Panches. 3. Petitioner Sukhwinder Kaur, claiming herself to be a registered voter of village Basti Sohan Singh, did not feel satisfied with the indicated reservations for the posts of Sarpanch and Panches and filed the instant writ petition, Civil Writ Petition No.10869 of 2008 2 challenging the impugned notification/order (Annexures P1 and P11), invoking the provisions of Articles 226 and 227 of the Constitution of India. 4. The case set up by the petitioner, in brief, in so far as relevant, was that the respondents have wrongly reserved the post of Sarpanch in general category, vide notification (Annexure P1), whereas as per the provisions of the Act, the post of Sarpanch should have been reserved, by way of rotation for scheduled caste category, as in the election held in the year 1998, the post of Sarpanch was reserved for lady in general category. 5. Likewise, the petitioner has also assailed the reservation of the posts of Panches, which was rectified, by virtue of impugned letter/order (Annexure P11) on the ground that the same has not been reserved on the basis of population of the village as per census of 2001 in terms of section 11 of the Act. 6. Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioner that reservations for the posts of Sarpanch and Panches, vide impugned notification/order (Annexure P1 and P11) respectively, are illegal and contrary to the provisions of the Act. On the basis of aforesaid allegations, the petitioner sought quashment of impugned notification/order (Annexures P1 and P11) in this context. 7. The respondents contested the claim of the petitioner. Respondent Nos.1 and 2 filed their joint written statement, while respondent No.6 filed his separate written statement, inter-alia, pleading certain preliminary objections of maintainability of the petition, locus standi, cause of action of petitioner and objection of concealment of material facts etc. The contesting respondent Nos.1 and 2 pleaded as under:- “That in the year 1998, the existing Gram Sabha Jaura was trifurcated into Gram Sabha Jaura, Basti Sohan Singh and Basti Saun Singh. In the Panchayat election of 1998 and 2003, there was census and no election was held for Gram Panchayat Basti Sohan Singh and Basti Saun Singh because after bifurcation, further formalities be separate voter lists were not published. According to census 2001, the population Civil Writ Petition No.10869 of 2008 3 of Basti Sohan Singh is 250, comprising 50 General, 100 Scheduled Caste and 100 BC. The Gram Pancyayat Basti Sohan Singh was constituted for 5 Panches, 2 Gen. 1 Women 1 B.C. and 1 SC as per the population vide gazette notification dated 12.2.2008 Scheduled is Annexure P-2. Thereafter, one Mehar Singh s/o Kala Singh filed C.W.P.No.7661 of 2008 which was disposed of vide order dated 8.5.2008 issuance of directions for deciding representation Annexure P-2 within a week. In order to decide the representation Annexure P-2, the Enquiry regarding population of the villages Johra, Basti Saun Singh and Basti Sohan Singh was got conducted. Keeping in view the population report of the S.D.M., the Deputy Commissioner, Ferozepur through letter No.21, dated 19.5.2008, recommended for giving 1 seat to General, 1 for general woman, 1 for S.C. and 1 for S.C.(Woman) and 1 for B.C. Accordingly, fresh schedule of Panches was notified on 23.5.2008 vide Annexure P-8. Thereafter, the Respondent No.5, again sent a letter No.2555/DPE, dated 3.6.2008 (Annexure P-9), in which he has mentioned that on the fresh representation of Resham Singh s/o Jeon Singh r/o Basti Sohan Singh, enquiry about the population was got conducted from Tehsildar Zira. According to the report of Tehsildar, the total population of Basti Sohan is 200, 93 General, 100 B.C. and 7 S.C. Accordingly he recommended that out of 5 seats, 2 be given to General, 2 for Women and 1 for B.C. As there was difference of population between the 2 reports dated 19.5.2008 and 3.6.2008, the office of Respondent No.2 vide letter dated 6.6.2008 called for the comments of the Deputy Commissioner. The Deputy Commissioner through his letter No.6434, dated 7.6.2008, vide forwarding his comments has reported that in the census report, 24 families having 65 members of migrated labour working on M/s C.G.B.K.O. Brick Kiln Owner have been included and the same could not have been included. Therefore, he justified his report dated 3.6.2008 and requested for taking action accordingly. Accordingly, the office of Respondent No.2 issued the letter Annexure P11 dated 9.6.2008. Thus, there is no illegality in the same.” 8. The contesting respondent No.6 claimed that as the petitioner has accepted the indicated reservation and filed her nomination paper to contest the election for the post of Panch in general category, therefore, she is estopped from challenging the impugned notification/order (Annexures P1 and P11). It was Civil Writ Petition No.10869 of 2008 4 pleaded that in the year 1998, Basti Sohan Singh and Basti Saun Singh were carved out from village Jaura. However, the population census of the aforementioned Basti Sohan Singh and Basti Saun Singh could not be ascertained. The inquiry conducted by Revenue Tehsildar, Zira revealed that in Basti Sohan Singh, there is total population of 200 persons, out of which, 93 belonged to general category, 100 to the backward class and only 7 persons belonged to the scheduled caste category. According to respondent No.6, since the population of scheduled caste category is less than 20% of the total population of the Gram Sabha, so, no reservation for the scheduled caste category was made, in view of the provisions of Section 11 of the Act. In all, the contesting respondents claimed that the posts of Sarpanch and Panches were rightly reserved in accordance with the provisions of the Act. It will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. That is how I am seized of the matter. 9. Assailing the impugned notification/order (Annexures P1 and P11), the learned counsel for the petitioner contended with some amount of vehemence that as the indicated reservations of the posts of Sarpanch and Panches, are arbitrarily illegal and against the Constitution and statutory provisions of the Act, therefore, the impugned notification/order (Annexures P1 and P11) deserve to be quashed in this behalf. 10. On the contrary, hailing the impugned reservation, the learned counsel for the contesting respondents, urged that the reservations for the posts of Sarpanch and Panches, vide notification/order (Annexures P1 and P11) are in accordance with the statutory and constitutional provisions, which are liable to be maintained. 11. Having heard the learned counsel for the parties, having gone through the record and relevant legal provisions with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant writ petition Civil Writ Petition No.10869 of 2008 5 deserves to be accepted. 12. What is not disputed here is that 73rd Amendment was brought into force on 24.4.1993 to give effect to one of the directive principles of State policy. What was sought to be done by the Seventy-third Amendment was that constitutional status to the local self-govt. was conferred to the village Panchayats to give them powers. A State Legislature, in the light of the constitutional provisions in Part IX, cannot do away these democratic bodies at the local level nor can their normal tenure be curtailed otherwise than in accordance with law nor can the State Govt. delay elections of these bodies, in view of the clear mandate of Seventy-third Amendment. 13. Such thus being the legal position on record, now the short and significant question, though important, arises for determination in this case, is as to whether the action of the respondents in this regard is in conformity with legal provisions or not? 14. Having regard to the rival contentions of the learned counsel for the parties, to me, the concerned official respondents have slipped into legal error in notifying/reserving the posts of Sarpanches and Panches of village Basti Sohan Singh (Abadi Jorra) of Zile Block 69, District Ferozepur in this context. 15. Articles 243B and C of the Constitution deal with the constitution and composition of Panchayats on the basis of population. Sequelly, Article 243D postulates that seats shall be reserved for the Scheduled Castes and Scheduled Tribes in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Castes or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat. Article 243(f) defines population to mean the population as ascertained at the last preceding census of which the relevant figures have been published. Civil Writ Petition No.10869 of 2008 6 16. Likewise, section 12 of the Act posits that “the offices of Sarpanch of Gram Panchayats in the district shall be reserved for Scheduled Castes and the number of such offices shall bear, as nearly as may be, the same proportion to the total number of offices of Sarpanches in the district as the population of Scheduled Castes in the district bears to the total population of the district.” 17. Similarly, section 11 envisages that the offices of Panches shall be reserved for the Scheduled Castes (and Backward Classes) in such a way that the number of offices reserved for Scheduled Castes shall bear, as nearly as may be, the same proportion to the total number of offices (to be filled by direct election) in that Gram Panchayat, as the population of the Scheduled Castes to the total population in that Gram Sabha area and again population has been defined in section 2 (zn) to mean [the rural population as], ascertained at the last preceding census of which the relevant figures have been published. 18. A co-joint reading of these provisions would reveal that reservation to the posts of Sarpanch and Panches have to be notified as per the rural population ascertained at the last preceding census of which the relevant figures have been published. Admittedly, the last preceding census of 2001 is relevant in order to decide the present controversy. It is not a matter of dispute that the previous Gram Sabha, Jaura was trifurcated into (i) Gram Sabha Jaura, (ii) Basti Sohan Singh and (iii) Basti Saun Singh. 19. To me, the following tabulation of population and reservations of posts of Sarpanch and Panches is relevant and essential to decide the real controversy involved in the instant writ petition. (A) POPULATION 20. As per extract of census report of the year 2001 (Annexure R-1/A), the total population of village Jaura was as under:- Area code Village Area Total population SC population % ST population % 00907400 Jaupra Rural 782 348 44.5 0 0 Civil Writ Petition No.10869 of 2008 7 21. The population of Basti Sohan Singh, as per census for the year 2001 described in Annexure P3, is as follows:- Sr.No Name and Hadbast No.of present panchayat Shamlat village/ name of population Hadbast No. Total population Gen.pop- -ulation Populati- -on of SC Populati -on of BC 1 to 13 - - - - - - - 14. Basti Sohan Singh Basti Sohan Singh 12 250 50 100 100 15. - - - - - - - (B) RESERVATION 22. As per reservation chart (Annexure P2), the bifurcation of reserved posts is in the following fashion :- Sr.No. Name of village or group of continguous Gram Sabha Name of Gram Pancha yat Panches Gen Women SC SC Women BC 24 Basti Sohan Singh (Abadi Jora Singh) (12) Basti Sohan Singh 5 2 1 1 - 1 23. The reservation was stated to be rectified by the respondents, by virtue of letter dated 22.4.2008 (Annexure P4) as under:- Sr.No. Name of Gram Panchayat/Hadb ast No. Total General Women SC SC women BC 1 Jaura 12 5 1 1 2 1 - 2 Basti Sohan Singh 12 5 2 2 - - 1 3 Basti Saun Singh 12 5 1 1 1 1 1 24. Likewise, it was again changed, by way of letters dated 19.5.2008 and 23.5.2008 (Annexures P7 and P8) respectively in the following manner:- Civil Writ Petition No.10869 of 2008 8 Sr.No. Name of the Gram Panchayat/ Hadbast No. Total General Women SC SC Women BC 1 Jaura 5 1 1 2 1 0 2 Basti Sohan Singh 5 1 1 1 1 1 3. Basti Saun Singh 5 2 2 0 0 1 25. Lastly, vide letters dated 3.6.2008 and 9.6.2008 (Annexures P9 & P11) respectively, it was again changed as under:- Sr.No. Name of the Gram Panchayat/ Hadbast No. Total General Women SC SC Women BC 1 Basti Sohan Singh 5 2 2 0 0 1 2 Basti Saun Singh 5 2 2 0 0 1 26. Meaning thereby, the perusal of the aforesaid tables would reveal that there are inherent contradictions in the reservation of indicated posts relatable to population and the official respondents have neither reserved the post of Sarpanch by way of rotation, nor reserved the posts of Panches on the basis of population as per relevant census for the year 2001. 27. However, the celebrated argument of learned counsel for the contesting respondents that as the posts of Panches have been rightly reserved as per existing population of the year 2008, therefore, no interference is warranted in this relevant connection, is not only devoid of merit but misplaced as well. Similarly, the mere filing of the nomination by the petitioner is of no consequence in this behalf. 28 As is evident that the mandate of Article 243 of the Constitution and sections 11 and 12 of the Act is clear and explicit that such posts have to be reserved by way of rotation and as per census of population for the year 2001 and Civil Writ Petition No.10869 of 2008 9 not otherwise. Therefore, the reservation on the basis of population of the year 2008 is not only arbitrary but illegal as well. 29. The constitutional mandate envisaged under Article 243 of the Constitution cannot be ignored on the ground of some difficulty here and there of assessment of population as per census for the year 2001 by the respondents. Again it is not a matter of dispute that it is well settled principle of interpretation of statute, that the words of an enactment are to be given their ordinary, popular and natural meaning. If such meaning is clear and unambiguous, the effect should be given to a provision of a statute in the same manner whatever may be the consequences. The basis of this principle is that the object of all interpretations being to know what the legislature intended, whatever was the intention of the legislature has been expressed by it through words which are to be interpreted accordingly, because the intention of the legislature can be deduced only from the language through which it has expressed itself. If the language of a statute is clear, the only duty of the Court is to give effect to it and the Court has no business to look into the consequences of such interpretation. The Court is under an obligation to expound the law as it exists and leave the remedy to the legislature, even if harsh conclusions result from such exposition. Equally, it is now well recognized proposition of law that mandatory provisions and command of law have to be complied with in the same manner as envisaged and mandated by any statute and it cannot be interpreted otherwise. 30. In this manner, the reservations of post of Sarpanch, by way of notification (Annexure P1) and posts of Panches, vide impugned order (Annexure P11) are against the constitutional mandate and statutory provisions of the Act as depicted here-in-before and cannot legally be sustained in the obtaining circumstances of the case. 31. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. Civil Writ Petition No.10869 of 2008 10 32. In the light of the aforesaid reasons, the instant writ petition is accepted. Consequently, the impugned notification/order (Annexures P1 and P11) are hereby quashed. The concerned official respondents are directed to re-reserve the posts of Sarpanch/Panches by way of rotation and on the basis of population based on the census for the 2001, as discussed here-in-above and accordingly complete the entire process of election within a period of three months positively in accordance with law after receipt of certified copy of this order. 18.1.2011 (Mehinder Singh Sullar) AS Judge Whether to be referred to reporter? Yes/No