HON’BLE SHRI G.S. SINGHVI, THE CHIEF JUSTICE AND HON’BLE SHRI JUSTICE G.V. SEETHAPATHY WRIT PETITION NO. 14068 OF 2006 BETWEEN Eppala China Venkateswarlu & others ………Petitioners And The Secretary to Government Social Welfare (F) Department, Government of Andhra Pradesh, Hyderabad & others. ……Respondents ::O R D E R :: Counsel for the Petitioners : Shri P. Sri Raghuram Counsel for Respondent Nos.1 and 6 : Government Pleader for Panchayat Raj Counsel for Respondent No.2 to 5 : Shri V.V. Prabhakara Rao Counsel for Respondent No.7 : Government Pleader for Social Welfare Counsel for Respondent No.8 : Shri K.G. Kannabhiran Dated: 03.08.2006 Per G.S. SINGHVI, CJ Whether in exercise of the power conferred upon it under Article 226 of the Constitution of India, the High Court can, notwithstanding the bar contained in Article 243-O of the Constitution, entertain challenge to the reservation of the offices of Sarpanchas of Gram Panchayats in Mangapet Mandal, Warangal District in favour of the members of Scheduled Tribe and pass an order which will have the effect of stultifying the process of election, is the question which arises for determination in this petition filed by Shri Eppala China Venkateswarlu and 41 others for quashing order dated 24-6-2006 issued by Deputy District Election Authority and Revenue Divisional Officer, Mulugu, Warangal District (respondent No.4). The petitioners are residents of various villages of Mangapet Mandal. All of them are non-tribals. They are enrolled as voters in the electoral rolls prepared under Section 11 of the Andhra Pradesh Panchayat Raj Act, 1994 (for short, ‘the 1994 Act’) read with Rules 2 and 5 of the Andhra Pradesh Panchayat Raj (Preparation and Publication of Electoral Rolls) Rules, 2000. They have questioned the legality of order dated 24-6-2006 issued by respondent No.4 reserving the offices of Sarpanchas in favour of Scheduled Tribes (Men and Women) by asserting that 18 Gram Panchayats (23 villages) viz., 1) Akinepally Mallaram, 2) Balannagudem, 3) Bauchampet, 4) Cherupally, 5) Domeda, 6) Kamalapur, 7) Kathigudem, 8) Komatipally, 9) Mallur, 10) Narasapur (Boru), 11) Narasimha Sagar, 12) Ranmannakka peta, 13) Chunhupally, 14) Mangapet, 15) Rajupet, 16) Ramachandrunipet, 17) Thimmapet and 18) Wadagudem of Mangapet Mandal do not form part of Scheduled Areas declared by the President of India under sub-para (1) of Para 6 of the V Schedule to the Constitution. In support of their plea, the petitioners have relied on notification dated 21-4-1950 (published in Gazette (Extra-ordinary), Hyderabad Deccan dated 23-4-1950 AD) issued by the Government of Hyderabad under Section 5 of the Hyderabad Land Revenue Act No.8 of 1317 Fasli, notification dated 7-12-1950 issued by the President of India under sub-para (1) of Para 6 of the V Schedule, order dated 30-11-1973 passed by the Single Bench in Writ Petition No.1413 of 1973 (Koya Brahmanandam and 137 others v. The Special Deputy Collector (Tribal Welfare), Warangal), order dated 8-7-1974 passed by the Division Bench in Writ Appeal No.486 of 1974 (The Special Deputy Collector (Tribal Welfare), Warangal v. Koya Brahmanandam and others) and D.O. letter dated 5-12-2003 written by Director of Tribal Welfare, Government of Andhra Pradesh to District Collector, Warangal. The petitioners have also pleaded that reservation of all the offices of Sarpanchas of Gram Panchayats of 18 villages in favour of Scheduled Tribes is ultra vires to the provisions of Articles 14 and 19 (1)(a) of the Constitution and the 1994 Act. In the counter-affidavit filed by Shri V. Nagi Reddy, Secretary, Tribal Welfare Department, Government of Andhra Pradesh, it has been averred that the 23 villages of Mangapet Mandal have been declared as scheduled villages, as per notification issued by the President of India, which was published in Gazette No.90, dated 7-12-1950. Shri V. Nagi Reddy has further averred that at the time of issuance of notification dated 7- 12-1950, the villages in question were shown in Palancha Taluq of Warangal District, but in the process of reorganization of districts, 204 villages in Palancha Taluq were included in Khammam District and 23 villages, which are subject matter of the writ petition, remained in Warangal District and the same were tagged to Mulugu Taluq. After formation of Mandals, these villages were included in Mangapet Mandal and the same form part of the Scheduled Areas. For the sake of convenience, paragraphs 2, 4 and 5 of the counter-affidavit of Shri V. Nagi Reddy are reproduced below: “2. In reply to para No.2 of the affidavit: It is submitted that in pursuance of the orders of the Government in G.O.Ms. No.220, Panchayat Raj Rural Development, Election and Rules Department, dt.25-5-2006, wherein the Govt., issued certain guidelines for reservation of seats in offices of Sarpanchas/Grampanchayats/MPP’s and ZPs. In pursuance of the said notification the RDO, Mulugu, who is the ex-officio of Dist., Dy., Election Authority, sought certain clarification from the District Collector, Warangal, with regard to the application of the orders of the Government to various villages situated in Mangapet, Bhupalpally, Eturnagaram and Tadvai mandals of Warangal District. In pursuance of the said clarifications sought by the RDO, on 16-6-2006, the Dist., Collector, as per her Proc. Rc.No.E5/3084/2006, Dt: 17-6-2006, informed that the villages of various mandals of Mangapet, Bhupalpally, Eturnagaram, which have been declared as scheduled villages, insofar as Mangapet mandal is concerned, all the 23 villages in Mangapet mandal have been declared as scheduled villages as per the notification published in Gazette No.90, Dt: 17-12-1950 issued by President of India. In pursuance of the said proceedings of the District Collector, Warangal District, vide No.E5/3084/2006, Dt: 17- 6-2006, the RDO, Mulugu, passed orders on 24-6-2006, reserving the offices of Sarpanchas of Grampanchayats in Mangapet Mandal to the members belongs to the ST/SC/BC and for women basing on the proportionate population in descending order and by rotation in respect of SC/ST women and for Backward Class. Insofar as reservation to the STs, about 12 villages have been reserved to men and women the remaining 6 villages have been reserved in favour of ST (Women). 4. In reply to para 4: It is to submit that there are 23 villages in Mangapet Mandal of Warangal District as per the reorganization of the mandals in the State. But the said 23 Revenue villages have made treated as 18 Gram Panchayats which were stated in this affidavit is correct. But the other contentions of the writ petition as that these villages were not declared as Scheduled villages by the President of India, under Sub-Para (1) of Para 6 of the (V) Schedule is not correct. With regard to the other contention that this Hon’ble Court passed orders earlier on 30-11-73, in WRIT PETITION No.1413/1973, stating that 14 villages out of 23 of erstwhile Mulugu Taluq of Warangal District, setting aside show cause notice issued to the land owners in 14 villages by the Spl. Dy. Collector, Warangal, on the grounds that these villages of erstwhile Mulugu (T) were not notified by the President is not correct. In fact this Hon’ble Court passed orders on 30-11-1973, while setting aside the show cause notices issued by the Special Dy., Collector, Warangal, on the ground that, the 14 out of 23 villages were not included in the Mulugu Taluq of Warangal District at the time issuing notification by the President of India, and therefore as these villages were not in the Mulugu Taluq at the time, therefore the action of the Spl., Dy., Collector, Warangal in issuing show cause notices to various land owners of the 14 villages in Mulugu Taluq is bad as these villages were not declared as scheduled area by including Mulugu Taluq at the time of issuing notification. It is true that while issuing notification by the President of India on 7-12-1950, certain villages in Mulugu (T) were declared as scheduled villages, i.e., out of 218 villages have been declared as schedule villages. Like that out of 227 villages in Palvancha (T) have been declared as schedule villages, the villages in question have been shown in the Palvancha (T) of Warangal District, at the time of issuing the notification. Subsequently due to reorganization of the Districts 204 villages in Palvancha (T) have been included to Khammam District, including Palvancha as well as Samsthan Palvancha. 23 villages of the Palvancha Taluq of Warangal District (i.e., the subject matter of the villages) have been remained in the Warangal District and they were tagged to the Mulugu (T), thereafter while formation of mandals, these 23 villages have been included in the Mangapet mandal. It is not out of place to mention that there are other mandals in the Mulugu (T) which were declared as scheduled areas and the names of these mandals as Venkatapur, Eturunagarm, TAdvai, Govindaraopet and Mulugu. It is important to note that in order to decide whether any village/area as scheduled area, the authorities have to look into the notification issued by the President of India, it is immaterial whether any such area/village has been tagged to any District/Mandal. The fact remain that the authorities have to strictly follow the Presidential Notification only but not concerned with reorganization of the areas by the State or local Government. It is also submitted that as per Section 2 (a) of APSALT, Regultion 1959, defines “Agency tracts means”, and the same is as follows the AREA, in the Districts of East Godavari, West Godavari, Visakapatnam, Srikakulam, Adilabad, Warangal, Khammam and Mahabubnagar, from time to time as scheduled area declared by the President of India, under sub- paragaraph (1) of Para (6) of the V Schedule to the Constitution. As per the said definition of the word Agency tracks, which specifies the area declared by the President of India, but not with regard to inclusion of any area/village in Taluq/Mandal or District. It is an admitted fact that all these 23 Revenue villages have been shown in the Palvancha (T) in Warangal District, at the time of issuing notification by the President of India. Therefore, as already submitted as above it is immaterial whether these areas/villages subsequently tagged to the Mangapet Mandal or Mulugu (T) and on fact granted that these villages cannot be declared as Non-Scheduled area. As such the orders passed in earlier writ petition is not in accordance with law and the same was passed without properly appreciating the important aspects while passing the order. Further the learned Single Judge has passed orders declaring that the then Special Dy., Collector, Warangal, has no jurisdiction to issue notices under rule 7 (2) of the regulation on the ground that the villages in question are not shown in the Mulugu (T) at the time of issuing notification by the President of India. it is nobody’s case that these villages were included in the Mulugu (T) in the notification Dt: 7-12-50, the issue is whether has to be considered that whether these villages have been declared as scheduled villages by the President of India while issuing Gazette notification or not. 5. In Reply to Para 5: It is submitted that the writ petition as have referred some of the proceedings of the District Collector, WGL, Dt: 20-7-2000, 17-10-2000, 7-10-2000. But the copies of said proceedings have not filed along with writ petition. As such the writ petitioners failed to substantiate their pleading by filing those copies of the District Collector. As such the petitioners are put to strict proof of the same. With regard to the other contention that the then Director of Tribal Welfare, addressed letter Dt: 5- 12-2003, to District Collector, stating that with a view to give a benefit to the STs of these 23 villages which was denied due to oversight on the part of the Govt., the national scheduled areas and scheduled Commission proposed to the Government of India to amend the LTR 1959. But the said propose turned down by the Government of India, in the meantime the State Government had submitted proposals to the Government of India for inclusion of these areas. In fact the said letter was addressed by the Director of Tribal Welfare, the earlier basing on the orders passed by this Hon’ble Court, in W.P.No.1430/73, Dt:30-11-73. But without appreciating the legal position with regard to the definition of Section 2 (a) of APSALTR 1959, the Director Tribal Welfare observed that for inclusion of these 23 villages in the schedule list basin on the orders passed on this Hon’ble Court. As already submitted the above and once again repeating that while passing the order this Hon’ble Court never declared the 23 villages as non-scheduled area but while passing the orders this Court only stated that these 23 villages new were not included in Mulugu (T), and therefore these villages were not shown as schedule villages in the Mulugu (T). But there is no in the order reference with regard to the inclusion of these villages in Palvancha (T) at the time of notification. As such the Director of Tribal Welfare, drawn inference basing on orders of this Hon’ble Court that these villages are not scheduled villages and without taking into consideration that once the President of India declares any village as schedule village, no Court or judgment cannot touch the same. Insofar as the contention of the petitioners of the submitting the proposals by the Project Officer, concerned for issuance of clarification regarding to schedule areas of these villages and reminded in Rc.No.E5/6371/2000, Dt: 20-7-2000 and 17-10-2000 and 7-12-2000. But no response is received from Government. Hence, the clarification is issued basing on the early orders issued by the G.O.Ms.No.297, Dt: 28-12- 1991, wherein it was mentioned that entire 23 villages of Mangapet Mandal of scheduled villages.” Petitioner No.1 has filed rejoinder affidavit reiterating the stand that in view of the judgment of the learned Single Judge in Writ Petition No.1413 of 1973, which was confirmed by the Division Bench, the villages in question cannot be treated as part of Scheduled Areas for the purpose of reservation of the offices of Sarpanchas. During the pendency of the writ petition, the petitioners filed WPMP No.20129 of 2006 for placing on record copies of notifications dated 21-4-1950 and 7-12-1950. The same has been allowed by us by a separate order passed today. Shri P. Sri Raghuram, learned counsel for the petitioners argued that notwithstanding the bar contained in Article 243-O, this Court can entertain writ petition filed under Article 226 because the power of judicial review vested in the High Court constitutes one of the basic structures of the Constitution and the same cannot be abridged, curtailed or taken away even by amending the Constitution. In support of this argument, Shri Raghuram relied on the judgments of the Supreme Court in L. Chandra Kumar v. Union of India[1] and Harnek Singh v. Charanjit Singh[2]. He submitted that acceptance of the prayer made by the petitioners would advance the cause of election and would not, in any manner, impede the pending elections. Learned counsel then argued that reservation of all the offices of Sarpanchas in favour of Scheduled Tribes has the effect of depriving the members of other castes of their right to choose candidates of their choice and, therefore, the Court may, without disturbing the process of election, direct respondent No.4 to issue fresh notification for reservation of the offices of Sarpanchas of 18 Gram Panchayats. Learned Government Pleaders for Panchayat Raj and Social Welfare argued that reservation of the offices of Sarpanchas of Mangapet Mandal is in consonance with the notification issued by the President of India under sub-para (1) of Para 6 of the Vth Schedule of the Constitution and, therefore, the same cannot be nullified at the instance of the petitioners. Shri K.G. Kannabhiran, learned Senior Advocate appearing for the added respondent argued that the petitioners should be non-suited in view of the express bar contained in Article 243-O of the Constitution. For the purpose of deciding whether the bar contained in Article 243-O operates against the power vested in the High Court under Article 226 of the Constitution of India to issue directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them for the enforcement of any right conferred by Part III of the Constitution or for any other purpose, it will be useful to notice the relevant constitutional and legal provisions. On 26th day of January, 1950, the people of this country resolved to constitute India into a sovereign democratic republic and to secure to all its citizens: “JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity of the nation.” By Constitution (Forty-second Amendment) Act, 1976, the words “Sovereign, Socialist, Democratic Republic” were substituted for the words “sovereign Democratic Republic” and the words “unity and integrity of the Nation” was substituted for the words “unity of the Nation”. Part III of the Constitution contains various fundamental rights guaranteed to the citizens and other persons. Part IV enumerates the Directive Principles of State Policy. By virtue of Article 37, it has been declared that the provisions contained in Part IV are not enforceable by any Court, but the principles contained therein are fundamental in the governance of the country and it is the duty of the State to apply the same in making laws. Article 40, which forms part of the Directive Principles of State Policy, ordains the States to take steps to organize village panchayats and endow them with powers and authority necessary to enable them to function as units of self- government. To achieve this goal, the Legislature of the State of Andhra Pradesh enacted various laws including the Andhra Pradesh Gram Panchayat Act, 1964 and Andhra Pradesh Mandal Praja Parishads, Zilla Praja Parishads and Zilla Pranalika and Abhivrudhi Sameeksha Mandals Act, 1986. Likewise, the Legislatures of all other States enacted similar legislations. The object of these legislations was to decentralize the governance at the grass-root level and make the panchayats as units of self- government. However, due to lack of political will and tardy implementation of the provisions contained in these legislations by a rather unsympathetic bureaucracy resulted in total frustration of the object set out in Article 40 of the Constitution. With a view to remedy the situation, the Parliament enacted Constitution (Seventy-third Amendment) Act, 1992 and Constitution (Seventy-fourth Amendment) Act, 1992 whereby Parts IX and IX-A were added to the Constitution. With these amendments, Panchayats and Municipal Bodies have been declared as units of self-government. The provisions contained in these two parts are of far reaching significance. The same are intended to make the Panchayats and Municipal Bodies fully autonomous partners in the governance of the nation. Article 243 (d) defines the term “Panchayat”, as an institution of self-government constituted under Article 243-B for the rural areas. Article 243-B provides for constitution of Panchayats. Article 243-C relates to composition of Panchayats; Article 243- D regulates reservation of seats for Scheduled Castes and Scheduled Tribes. Article 243-E prescribes duration of Panchayats. Article 243-G enumerates power, authority and responsibilities of Panchayats. Article 243-H contemplates that the Legislature of the State may, by law, authorize a Panchayat to levy, collect and appropriate taxes, duties, tolls and fee. It also postulates making of a provision for grant-in-aid to the Panchayats and constitution of panchayat fund. Article 243-I provides for constitution of Finance Commission to review financial position of the Panchayats and to make recommendations to the government on various matters specified in that article. Article 243-K regulates elections to the Panchayats. Article 243-M declares that provisions of Part IX shall not apply to the Scheduled Areas. Clause (4) thereof empowers the Legislature of a State to enact law for extending the provisions of Part IX to the Scheduled Areas and Tribal Areas. Article 243-O which begins with a non-obstante clause contains a bar to the Court’s interference in electoral matters. To bring the existing legislations in tune with the provisions contained in Part IX of the Constitution, the Andhra Pradesh State Legislature enacted the 1994 Act and repealed the Andhra Pradesh Gram Panchayats Act, 1964, the Andhra Pradesh Mandal Praja Parishads, Zilla Praja Parishads and Zilla Pranalika and Abhi-vrudhi Sameeksha Mandals Act, 1986 and the Andhra Pradesh Local Bodies Electoral Reforms Act, 1989. Part II of the 1994 Act contains provisions relating to constitution, administration and control of Gram Panchayats. Section 8 lays down that all the members of Gram Panchayat shall be elected by the registered voters in the ward by the method of secret ballot. Section 9 provides for reservation of seats for Scheduled Castes, Scheduled Tribes, Backward Classes and Women. Section 11 prescribes the procedure for preparation and publication of electoral roll for a Gram Panchayat. Sections 13 and 14 regulate the term of office of members and Sarpanchas and Section 15 provides for reservation of office of Sarpanch. Part V of the 1994 Act contains provisions relating to constitution of State Election Commission, conduct of elections and election offences. Section 233 contains a prohibition against challenge to elections except by way of an election petition. Part VI-A which was added by Andhra Pradesh Act No.7 of 1998 contains special provisions relating to the Panchayats, Mandal Parishads and Zilla Parishads located in the Scheduled Areas. Section 268 empowers the government to make rules to carry out all or any of the purposes of the Act. In exercise of the powers vested in it under Section 233 read with sub-section (1) of Section 268, the Government of Andhra Pradesh framed the Andhra Pradesh Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 (for short, ‘the 1995 Rules’). Rule 2 of these Rules contains a reiteration to the bar against challenge to the election held under the 1994 Act except by an election petition. Articles 243(d), 243-D 243-E, 243-K (1), 243-M (1) and (4), Article 243-O and Article 329 of the Constitution and Sections 9, 13 (1), 14 (3), 15, 204, 233, 242-A and 242-D of the 1994 Act, which have bearing on the decision of this petition, read as under: Constitution of India 243(d) “Panchayat” means an institution (by whatever name called) of self-government constituted under Article 243-B, for the rural areas. 243-D. Reservation of seats: (1) Seats shall be reserved for- (a) the Scheduled Castes; and (b) the Scheduled Tribes, (2) Not less than one-third of the total number of seats reserved under Cl. (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes. (3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat. (4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide: Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State. Provided further that not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women: Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at the each level. (5) The reservation of seats under Cls. (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under Cl. (4) shall cease to have