9911796707
TMI Blog1966 (9) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be questioned in any court. Article 329-which is relevant for our purpose-reads: Notwithstanding anything in this Constitution (a)the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court; Before us it was contended that the notification referred to is not law and secondly it was not made under Art. 327 of the Constitution. The facts are shortly as follows: The petitioner is a resident of Ujjain and a citizen of India. He had been a voter in all the previous general elections and still claims to be a voter in Daulatganj, Ward No. 5, in the Electoral Roll of Ujjain. He claims to have a right to contest the election to any Assembly or Parliamentary constituency in the- State of Madhya Pradesh. The impugned notification which was published in the Gazette of India Extraordinary on July 24, 1964 shows Ujjain as a Constituency ,reserved for the scheduled castes...It was made in pursuance of sub-s. - (1) to s. 10 of the Delimitation Commission Act, 1962 and recites that proposals of the Delimitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. It was argued before us that the Delimitation Commission Act, 1962, was not passed by Parliament under Art. 327, but under Art. 82 and as such courts of law are not precluded from entertaining the question as to the validity of a notification under the Delimitation Commission Act because of the opening words of Art. 329. Article'82, however, merely envisages that upon the completion of each census the allocation of seats in the House of the People and the division of each State' into territorial constituencies may have to be readjusted. It is Art. 327 which enjoins upon Parliament to make provision by law from time to time with respect to all matters relating to or in connection with elections to either House of Parliament delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. The preamble to the Delimitation Commission Act 1962 shows that it is an Act to provide for the readjustment of the allocation of seats in the House of the People to the States, the total number of seat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... munication and public convenience; (b) every assembly constituency shall be so delimited as to fall wholly within one parliamentary constituency; (c) constituencies in which seats are reserved for the Scheduled Castes shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total is comparatively large; and (d) constituencies in which seats are reserved for the scheduled Tribes shall, as far as practicable, be located in areas where the proportion of their population to the total is the largest. Under sub-s. (2) of the section the Commission shall publish its proposals for the delimitation of the constituencies together with the dissenting proposals, if any, of an associate member, specify a date on or after which the proposals will be further considered and consider all objections and suggestions which may have been received by it before the day so specified. Thereafter its duty is by one or more orders to determine the delimitation of Parliamentary constituencies and the delimitation of assembly constituencies of each State. Publicity is to be given to the orders of the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. In effect, this means the complete effacement of all provisions of this nature which were in force before the passing of the orders under ss. 8 and 9 and only such orders were to hold the field. Therefore although the impugned notification was not a statute passed by Parliament, it was a law relating to the delimitation of constituencies or the allotment of seats to such constituencies made under Art. 327 of the Constitution. Our attention was drawn to Bill No. 98 or 1962 for providing; for readjustment of allocation of seats in the House of the People to the States, the total number of seats in the Legislative Assembly of each State, the division of each State into territorial constituencies for elections to the House of the People and Legislative Assemblies of the States and for matters connected therewith and the statement of objects and reasons therefor as appearing in the Gazette of India Extraordinary, Part II, Section 2 of the year 1962 which mentions Arts. 82 and 170(3) of the Constitution. The said statement further shows that as the 1961 census, had been completed a readjustment of the several matters earlier mentioned was necessary inasmuch as there had been a change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Minister of Pensions and National Health shall be liable to the penalties provided upon (1) [1941] Canada Law Reports, 111. Summary conviction under the provisions of S. 4 of the Opium, and Narcotic Drug Act. The opinion and narcotic Drug Act which was a Dominion' statute contained a schedule wherein narcotic drugs were enumerated, but which up to the date of the order in question did not contain Codeine. Under the provisions of that order a charge was laid against the respondent, a retail, druggist, that he did without lawful. excuse disobey an Act of the Parliament of Canada for which no. penalty or other mode of punishment was expressly provided, to wit; Paragraph two of regulations dated 11th day of September, 1939, of the War Measures Act, by willfully selling Codeine, a narcotic drug mentioned in Part Two of the Schedule to the Opium and Narcotic Drug Act without first having had and obtained a written order or prescription therefor signed and dated by a physician, contrary to sec. 164, Criminal Code of Canada. Section 164 of the Criminal Code enacted specifically that the offence must consist in willfully doing any act which was forbidden or omitting to do any act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in appeal therefrom. It Was further submitted that the intention of the Legislature was that the decisions of the Tribunals were to be final on all matters -whether of fact or of law, are they could not be said to commit an error of law when acting within the ambit of their jurisdiction. -They decided what the law was. This submission was turned, down by this Court and it was observed after referring to Hari Vishnu v. Ahmed Ishaque [1955] 1 S.C.R. 1104 that the Court laid down in general terms that the jurisdiction under Art. 226 having been conferred by the Constitution, limitations cannot be placed on it, except by the Constitution itself. In this case we are not faced with that difficulty because the, Constitution itself Provides under Art. 329(a) that any law relating to the delimitation of constituencies etc. made or purporting to be made under Art. 327 shall not be called in question in any court. 'Therefore an order under s. 8 or 9 and published under s. 10(1) would not be saved merely because of the use of the expression shall not be called in question in any court . But if by the publication of the order in the Gazette of India it is to be treated as law mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction of the High Court to issue writs under Art. 226 of the Constitution. This was turned down by the Court observing:- This argument, however, is completely shut out by reading the Act along with Art. 329(b). It will be noticed that the language used in that Article and in s. 80 of the Act is almost identical, with this difference only that the Article is preceded by the words notwithstanding anything in this Constitution . (p. 232) The Court went on to observe at p. 233: It may be pointed out that Art. 329 (b) must be read as complimentary to lause (a) of that Article Clause (a) bars the jurisdiction of the courts with regard to such law as may be made under Arts. 327 and 328 relating to the delimitation of constituencies or the allot- ment of seats to such constituencies.... If Part XV of the constitution is a code by itself, i.e., it creates rights and provides for their enforcement by a special tribunal to the exclusion of all courts including the High Court, there can be no reason for assuming that the Constitution left one small part of the election process to be made the subject matter of contest before the High Courts and thereby upset the time schedule o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itely by questioning the delimitation of the constituencies from court to court., Section 10(2) of the Act clearly demonstrates the intention of the' Legislature that the orders under ss. 8 and 9 published under s. 10 (1) were to be treated as law which was not to be questioned in any court. It is true that an order under s.8 or 9 published under s.10(1) is not part of an Act of Parliament, but its effect is to be the same. The situation here bears some comparison with what obtained in Harishankar Bagla and another v. The State of Madhya Pradesh 1955] S.C.R. 380. There 3 of the Essential Supplies (Temporary Powers) Act, 1946, provided that the Central Government, so far as it appeared to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, might by order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. Under s. 4 it was open to the Central Government by notified order to direct that the power to make orders under s. 3 shall, in relation to Such matters and subject to such conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished under s. 10(1), the orders are to have the same effect as if they were law made by Parliament itself. Reference was also made by counsel for the respondent to the judgment of this Court in Kailash Nath and another v. State of U.P. and others A.I.R. 1957 S.C. 790 There under s. 4 of the U.P. Sales Tax Act the State Government was empowered either to exempt certain kinds of transactions from the payment of sales tax completely, or to allow a rebate of a portion of the tax payable. In pursuance of that, the Uttar Pradesh Government issued a notification that with effect from December 1, 1949 the provisions of s. 3 of the Act (relating to the levy of sales tax) shall not apply to the sales of cotton cloth or yarn manufactured in Uttar Pradesh, made on or after December 1, 1949 with a view to export such cloth or yarn outside the territories of India on the condition that the cloth or yarn is actually exported and proof of such actual export is furnished. It was held by this Court that this notification having been made in accordance with the power conferred by the statute has statutory force and validity and, therefore, the exemption is as if it is contained in the parent Act it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r maintaining the territorial extent of the laws even after the appointed day. On this basis, it was argued that the Commissioners of the new State of Gujarat after May 1, 1960 were incompetent by virtue of the Presidential notification to exercise the functions of the Union under the Land Acquisition Act. It was observed by the majority Judges of this Court at p. 308:- The question which must be considered is whether the notification issued by the President is law within the meaning of S. 87 read with s. 2 (d) of the Bombay Reorganisation Act, 11 of 1960. After analysing the three stages of the constitutional process leading to the ultimate exercise of function of the Union Government the Court observed (at p. 309):- By Art. 53 the executive power of the Union is vested in the President and is exercisable by him either directly or through officers subordinate to him in accordance with the Constitution and the executive power of the Union by Art. 73 extends subject to the provisions of the Constitution: (a) to the matters with respect to which Parliament has power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued in exercise of any statutory authority it may not have the force of law. But where a general order is issued even by an executive authority which confers power exercisable under a statute, and which thereby in substance modifies or adds to the statute, such conferment of powers must be regarded as having the force of law. In this case it must be held that the order under ss. 8 and 9 published under s. 10 (1) of the Delimitation Commission Act were to make a complete set of rules which would govern the re-adjustment of number of seats and the delimitation of constituencies. In this case the powers given by the Delimitation Commission Act and the work of the Commission would be wholly nugatory unless the Commission as a result of its deliberations and public sittings were in a position to re-adjust the number of seats in the House of the People or the total number of seats to be assigned to the Legislative Assembly with reservation for the Scheduled Castes and Scheduled Tribes and the delimitation of constituencies. It was the will of Parliament that the Commission could by order publish its proposals which were to be given effect to in the subsequent election and as such ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
