Full Judgment Text
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PETITIONER:
MEGHRAJ KOTHARI
Vs.
RESPONDENT:
DELIMITATION COMMISSION & ORS.
DATE OF JUDGMENT:
20/09/1966
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
RAO, K. SUBBA (CJ)
HIDAYATULLAH, M.
SIKRI, S.M.
SHELAT, J.M.
CITATION:
1967 AIR 669 1967 SCR (1) 400
ACT:
Constitution of India, 1950, Arts. 82, 327, 328 and 329-
Order under s. 9 of the Delimitation Commission Act, 1962-
published under S. 10(1) -Whether law under Art. 327-
Therefore whether can be questioned in a court or whether
Art. 329 applies.
Delimination Commission Act, 1967- ss. 8, 9 and 10-Scope of.
HEADNOTE:
By a notification of the Delimitation Commission dated July
24, 1964 issued in terms of s. 10(1) of the Delimitation
Commission Act, 1962, Ujjain City, which had been a general
constituency, was notified as reserved for the Scheduled
Castes.
The appellant who was a resident of Ujjain and a citizen of
India, Mad a petition under Art. 226 praying for a writ of
certiorari for quashing the notification on the ground that
he had a right to be candidate for parliament from the
Ujjain City constituency which had been taken away. The
petition was rejected-by the High Court on the short ground
that the notification could not be questioned in any court
because under Art. 329(a) of the Constitution 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 Art. 327 or Art. 328, could not
be called in question in any court.
In appeal to this Court it was contended on behalf of the
appellant that the impugned notification, which was an order
under s. 9 and published in accordance with the provisions
of s. 10(1) of the Act, was not a law within the meaning of
s. 329; that in any event under s. 10(2) such an order was
to have the force of law but was not itself a law; and that
the notification was not made under Art. 327 but Art. 82 of
the Constitution.
HELD : dismissing the appeal,
The impugned notification was a law relating to the
delimitation of constituencies or the allotment of seats to
such constituencies made under Art. 327 of the Constitution.
An examination of ss. 8 and 9 of the Act showed that the
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matters therein dealt with were not to be subject to the
scrutiny of any court of law. Section 10(2) 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.
There was very good reason behind such a provision. If the
orders made under ss. 8 and 9 were not to be treated as
final, the result would be that any voter, if he so wished,
could hold up an election indefinitely by questioning the
delimitation of the constituencies from court to court. [410
B-C, G, H]
Although an order under s. 8 or s. 9 published under s.
10(1) is not part of an Act of Parliament, its effect is to
be the same. Section 10(4) puts such an order in the same
position as a law made by the Parliament itself which could
only be made by it under Art. 327. [415 E]
401
Case law referred to.
Article 82 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. [406 C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 843 of 1966.
Appeal by special leave from the judgment and order dated
February 25, 1965 of the Madhya Pradesh High Court in Misc.
petition No. 72 of 1965.
G. N. Dikshit, K. L. More and R. N. Dixit, for the
appellant.
Niren De, Addl. Solicitor-General, R. Ganapathy layer and
R. H. Dhebar and B. R. G. K. Achar, for respondents Nos.
1-4.
S. S. Shukla, for respondent No. 5.
The Judgment of the Court was delivered by
Mitter, J. This is an appeal by special leave from a
judgment and order dated February 25, 1965 of the Madhya
Pradesh High Court at Jabalpur in Miscellaneous Petition No.
72 of 1965. The High Court summarily dismissed the petition
under Art. 226 of the Constitution praying for a writ of
certiorari for quashing a notification issued in pursuance
of sub-sec. (1) of S. 10 of the Delimitation Commission Act,
1962 in respect of the delimitation of certain Parliamentary
and Assembly constituencies in the State of Madhya Pradesh.
The petition was rejected on the short ground that under
Art. 329(a) of the Constitution the said notification could
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
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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
402
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 Commission for the delimitation of
Parliamentary and Assembly constituencies in the State of
Madhya Pradesh had been published on October 15, 1963 in the
Gazette of India and in the official gazette of the State of
Madhya Pradesh and that after considering all objections and
suggestions the Commission determined that the territorial
constituencies into which the State of Madhya Pradesh shall
be divided for the purpose of elections to the House of the
People and the extent of each such constituency shall be as
shown in Table.A.
Respondent No. 1 to the petition was the Delimitation Com-
mission, respondent No. 2 was its Chairman and respondents
Nos. 3 and 4 were its members. The petition alleges many
acts of omission and commission on the part of the
Commission and its Chairman, but we are not here concerned
with all that. If we come to the conclusion that the High
Court was not justified in rejecting the petition on the
short ground noted above, we shall have to send the case
back to the High Court for trial on merits. According to
the petitioner, Ujjain city has been from the inception of
the Constitution of India a general constituency and by the
fact of the city being converted into a reserved
constituency his right to be a candidate for Parliament from
this constituency has been taken away.
In order to appreciate the working of the Delimitation Com-
mission and the purpose which it serves reference must be
made to the following Articles of the Constitution. Article
82 provides that-
"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."
This Article is a verbatim copy of clause (3) of Art. 81 of
the Constitution before its amendment in 1956.
403
Article 327 of the Constitution provides that-
’Subject to the provisions of this
Constitution, Parliament may from time to time
by law make provision with respect to all
matters relating to, or in connection with,
elections to either House of Parliament or to
the -House or either House of the Legislature
of a State including the preparation of
electoral rolls, the delimitation of consti-
tuencies and all other matters necessary for
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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 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 Article 82 only foreshadows
that readjustment may be necessary upon completion of each
census, but Art’ 327 gives power to Parliament to make
elaborate provision for such readjustment including
delimitation of constituencies and all other matters
connected therewith as also elections to either House of
Parliament. Section 3 of the Delimitation Commission Act
(hereinafter referred to the Act) enjoins upon the Central
Government to constitute a Commission to be called the
Delimitation Commission as soon as may be after the
commencement of the Act. Section 4 of the Act provides that
it is the duty of the Commission to readjust on the basis of
the latest census figures -the allocation of seats in the
House of the People to the several -States...... and the
division of each State into territorial, constituencies for
the purpose of elections to the House of the People.
Section 8 of the Act makes it obligatory on the Commission
to ,’determine by order, on the basis of the latest census
figures, and -.having regard to the provisions of Arts. 81,
170, 330 and 332, the
404
number of seats in the House of the People to be allocated
to each State and the number of seats, if any, to be
reserved for the Scheduled Castes and for the Scheduled
Tribes of the State as also the total number of seats to be
assigned to the Legislative Assembly of each State and the
number of seats, if any, to be reserved for the Scheduled
Castes and for the Scheduled Tribes of the State. The
delimitation of the constituencies is provided for in s. 9,
sub-s. (1) of the Act which reads:-
"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 to the following provisions, namely:
(a) all constituencies shall, as far as
practicable, be geographically compact areas,
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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;
(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 Parlia-
mentary constituencies and the delimitation of assembly
constituencies of each State. Publicity is to be given to
the orders of the Commission under s. 10(1) of the Act.
Sub-section (1) prescribes that each of its orders made
under s. 8 or s. 9 is to be published in the Gazette of
India and the official gazettes of the States con-
405
cerned. Sub-section (3) provides that as soon as may be
after such publication every such order shall be laid before
the House of the People and the Legislative Assemblies of
the States concerned.
The legal effect of the orders is given in sub-ss. (2) and
(4) of’ s. 10 of the Act. Under sub-s. (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". Under sub-s. (4) (omitting the irrelevant
portion) the readjustment of representation of the several
territorial constituencies in the House of the People or in
the Legislative Assembly of a State and the delimitation of
those constituencies provided for in any such order shall
apply in relation to every election to the House or to the
Assembly, as the case may be, held after the publication in
the Gazette of India of that order and shall so apply in
supersession of the provisions relating to such
representation and delimitation contained in the
Representation of the People Act, 1950, and the Delimitation
of’ Parliamentary and Assembly Constituencies Order, 1961.
It will be noted from the above that it was the intention of
the, legislature that every order under ss. 8 and 9 after
publication is to have the force of law’ and not to be made
the subject matter of controversy in any court. In other
words, Parliament by enacting s. 10(2) wanted to make it
clear that orders passed under ss. 8 and 9 were to be
treated as having the binding force of law and not mere
administrative directions. This is further reinforced by
sub-s.of s.10 according to which the readjustment of
representations of the several territorial constituencies in
the House of the People and the delimitation of those
constituencies provided for in any such order (i.e. under s.
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8 or s. 9) was to apply in relation to every election to the
House held after the publication of the order in the Gazette
of India and these provisions contained in the order were to
supersede all provisions relating to such representation and
delimitation contained in the Representation of the People
Act,, 1950 and the Delimitation of Parliamentary and
Assembly Constituencies Order, 1961. 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
406
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 in the popula-
tion figures from the 1951 census. This, however, does not
mean that the Delimitation Commission Act was a law made
under Art. 82. Article 82, as already noted, merely
envisaged that readjustment might be necessary after each
census and that the same should be effected by Parliament as
it may deem fit, but it is Art. 327 which casts a duty on
Parliament specifically to make provision with respect to
all matters relating to or in connection with elections to
either House of Parliament etc. the delimitation of
constituencies and all other necessary matters for securing
the due constitution of such House or Houses.
With regard to s. 10 (2) of the Act it was argued by counsel
for the appellant that the order under s. 9 was to have the
force of law, but such order was not itself a law. To
support this contention our attention was drawn to a
judgment of the Supreme .,Court of Canada in His Majesty the
King v. William Singer(1). There sub-s. (2) of s. 3 of the
War Measures Act of 1914 provided, that all orders and
regulations made under this section shall have the force of
law and shall be enforced in such manner and by such courts,
officers and authorities as the Governor-in-Council may
person be and may be varied, extended or revoked by any
subsequent order or regulation. By s. 4 of the Act the
Governor in-Council was empowered to prescribe the penalties
that may be imposed for violating the orders and regulations
under this, Act and also to prescribe whether such penalties
shall be imposed upon summary conviction or upon indictment.
Purporting to act under the provisions of the War Measures
Act the Governor in-Council made an order to the effect that
no retail druggist shall sell or supply straight, Codeine,
whether in powder, tablet or liquid form, or preparations
containing any quantity of any of the narcotic drugs
mentioned in Parts 1 and 11 of the Schedule to the Opium and
Narcotic Drug Act, mixed with medicinal or other
ingredients, except upon the written order or prescription
therefor signed and dated by a physician, veterinary surgeon
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or dentist. .... . The order further provided that any
person found in possession of Codeine or preparation
containing narcotic drugs mentioned in Parts 1 and 11 of the
Schedule to the Opium and Narcotic Drug Act mixed with other
medicinal or other in gradients, save and except under the
authority of a licence from the Minister of Pensions and
National Health shall be liable to the penalties provided
upon
(1) [1941] Canada Law Reports, 111.
407
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 wilfully selling Codeine,
a narcotic drug mentioned in Part Two of the Schedule to the
Opium and Narcotic Drug Act without first having had and ob-
tained 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 wilfully doing
any act which was forbidden or omitting to do any act which
was, required to be done by an Act of the Parliament of
Canada. In his judgment Rinfret, J.. observed: (page 114):-
"It is an Act of the Parliament of Canada
which the guilty person must have disobeyed
without lawful excuse."
His Lordship agreed with the Trial Judge and
with the majority of the Court of Appeal that
in the premises S. 164 of the Criminal’ Code
had no application and said:-
"Of course, the War Measures Act enacts that
the orders and regulations made under it
"shall have the force of law. It cannot be
otherwise. They are made to be obeyed and,.
as a consequence, they must have the force of
law. But that is quite a different thing from
saying that they will be deemed to be an Act
of Parliament."
Taschereau,J. put the matter rather tersely (see at p.
124):-
"An order in Council is passed by the
Executive Council, and an Act of Parliament is
enacted by the House of Commons and by the
Senate of Canada. Both are entirely
different, and unless there is a provision in
the law stating that the Orders in Council
shall be considered as forming part of the law
itself, or that any offence against the
regulations shall be a violation of the Act,
it cannot be said that the violation of an
Order in Council is a violation of an Act of
Parliament within the meaning of section 164
of the Criminal Code."
The observations from the judgment of Taschereau, J. point
out he difference between something which has the force of
law as.
408
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distinguished from an Act of Parliament itself. The Order
in ,Council in the Canadian case, although it had the force
of law, was not a provision contained in an Act of
Parliament and therefore although there was a violation of
the Order in Council there -was no violation of any section
of an Act of the Parliament of the Dominion of Canada.
Counsel for the appellant also drew our attention to the
judgment of this Court in Sangram Singh v. Election
Tribunal, Kotah, Bhurey Lal Baya.(1) There the Court had to
consider the effect -of s. 105 of the Representation of the
People Act, 1951 (Act XLIII -of 1951) which provided that
"every Order of the Tribunal made under this Act shall be
final and conclusive". The contention there put forward was
that this provision put an order of the Tribunal beyond
question either by the High Court under Art. 226 of the
Constitution or by the Supreme Court 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(2) 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
made under Art. 327, Art. 329 would prevent any
investigation by any court of law.
In dismissing the petition under Art. 226 of the
Constitution the High Court of Madhya Pradesh relied
exclusively on the decision of this Court in N.P. Punnuswami
v. Returning Officer, Namakkal Constituency and others(3)
which proceeded on the basis of certain ,concessions made.
There the appellant was a person who had filed a nomination
paper for election to the Madras Legislative Assembly from
the Namakkal constituency which was rejected. ’The
appellant thereupon moved the High Court under Art. 226
(1) [1955] 2 S.C.R. p. 1 at pp. 6 and 7. (2) [1955] 1 S.C.R.
1104.
(3) [1952] S.C.R. 218.
409
of the Constitution praying for a writ of certiorai to quash
the order of the Returning Officer rejecting his nomination
paper and to direct the said officer to include his name in
the list of valid nominations to be published. The High
Court dismissed the application on the ground that it had no
jurisdiction to interfere with the order of the Returning
Officer by reason of Art. 329 (b) of the Constitution. The
Court pointed out (at p. 225):-
"A notable difference in the language used in
Arts. 327 and 328 on the one hand, and Art.
329 on the other, is that while the first two
articles begin with the words "subject to the
provisions of this Constitution", the last
article begins with the words "notwithstanding
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anything in this Constitution". It was
conceded at the Bar that the effect of this
difference in language is that whereas any law
made by Parliament under Art. 327, or by the
State Legislatures under Art. 328, cannot
exclude the jurisdiction of the High Court
under Art. 226 of the Constitution, that
jurisdiction is excluded in regard to matters
provided for in Art. 329."
Reference was also made by counsel to certain other
concessions which appear at pp. 233 and 237 of the report.
It will be noted, however, that the decision in that case
did not proceed on the concessions made. The Court examined
at some length the scheme of Part XV of the Constitution and
the Representation of the People Act, 1951 which was passed
by the Parliament under Art. 327 of the Constitution to make
detailed provision in regard to all matters and all stages
connected with elections to the various Legislatures in the
country. It was there argued that since the Representation
of the People Act was enacted subject to the provisions of
the Constitution, it could not bar the jurisdiction 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
410
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 of the
elections. The more reasonable view seems to
be that Art. 329 covers all "electoral
matters".
An examination of ss. 8 and 9 of the Act shows that the
matters therein dealt with were not to be subject to the
scrutiny of any court ’of law. Section 8, which deals with
the readjustment of the number of seats, shows that the
Commission must proceed on the’ basis of the latest census
figures and by order determine having regard to the
provisions of Arts. 81, 170, 330 and 332, the number of
seats in the House of the People to be allocated to each
State and the number of seats, if any, to be reserved for
the Scheduled Castes and for the Scheduled Tribes of the
State. Similarly, it was the duty of the Commission under
s. 9 to distribute the seats in the House of the People
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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 to the factors enumerated in cls. (a)
to (d) of sub-s. (1). Sub-section, (2) of s. 9 shows that
the work done under sub-s. (1) was not to be final, but that
the Commission (a) had to publish its proposals under sub-s.
(1) together with the dissenting proposals, if any, of an
associate member, (b) to specify a date after which the
proposals could be further considered by it, (c) to
consider, all objections and suggestions which may have been
received before the date so specified, and for the purpose
of such consideration, to hold public sittings at such place
or places as it thought fit’ It is only then that the
Commission could by one or more order’ determine the
delimitation of Parliamentary constituencies as also of
Assembly constituencies of each State.
In our view, therefore, the objection to the delimitation of
constituencies could only be entertained by the Commission
before the date specified. Once the orders made by the
Commission under ss. 8 and 9 were published in the Gazette
of India and in the official gazettes of the States
concerned, these matters could no longer be reagitated in a
court of law. There seems to be very good ’reason behind
such a provision. If the orders made under ss. 8 and 9 were
not to be treated as final, the effect would be that any
voter, if he so wished, could hold up an election
indefinitely 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
411
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.(1)There s. 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, if
any, as may be specified in the direction, be exercisable
also by such officer or authority subordinate to the Central
Government or such State Government or such officer or
authority subordinate to a State Government as may be
specified in the direction". Section 6 of the Act read as
follows:-
"Any order made under s. 3 shall have effect
notwithstanding anything inconsistent
therewith contained in any enactment other
than this Act or any instrument having effect
by virtue of any enactment other than this
Act."
Under powers conferred by s. 3 the Central Government pro-
mulgated on September 10, 1948, Cotton Textiles (Control of
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Movement) Order, 1948. Section 3 of the said order provided
that no person shall transport or cause to be transported by
rail, road, air, sea or inland navigation any cloth, yarn or
apparel except under and in accordance with a general permit
notified in the Gazette of India by the Textile Commissioner
or a special transport permit issued by the Textile
Commissioner. The appellant Harishankar Bagla and his wife
were arrested at Itarsi by the Railway Police for
contravention of s. 7 of the Essential Supplies (Temporary
Powers) Act, 1946 read with cl. (3) of the Cotton Textiles
(Control of Movement) Order, 1948 having been found in
possession of new cotton cloth weighing over six maunds
which was being taken by them from Bombay to Kanpur without
any permit. The State of Madhya Pradesh contended before
this Court that the judgment of the High Court that s. 6 of
the Act was unconstitutional was not justified. This
contention was upheld by this Court and it was observed:-
"By enacting s. 6 Parliament itself has
declared that an order made under s. 3 shall
have effect notwithstanding any
(1) [1955] S.C.R. 380.
M15Sup CI/67-13
412
inconsistency in this order with any enactment
other than this Act. This is not a
declaration made by the delegate but the
Legislature itself has declared its will that
way in S. 6 .... The power of the delegate is
only to make an order under s. 3 . Once the
delegate has made that order its power is
exhausted. Section 6 then steps in wherein
the Parliament has declared that as soon as
such an order comes into being that will have
effect notwithstanding any inconsistency
therewith contained in any enactment other
than this Act."
Similarly it may be said here that once the Delimitation
Commission has made orders under ss. 8 and 9 and they have
been published 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.(1) 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 itself."
In Jayantilal Amrit Lal Shodhan v. F. N. Rana and others(2)
the question for consideration by this Court was the effect
of a notification of the President of India under Art.
258(1) of the Constitution. The President of India by a
notification dated July 24, 1959, under Art. 258(1) of the
Constitution entrusted with the consent of the Government of
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Bombay to the Commissioners of Divisions in the State of
Bombay the functions of the Central Government in relation
to the acquisition of land for the purposes of the Union.
Two new States were constituted by the Bombay Reorganisation
Act (XI of 1960) and the Baroda Division was allotted to the
State of Gujarat. In exercise of the powers entrusted by
the notification issued by the President on July 24, 1959,
the Commissioner of the Baroda Division notified under s,
4(1) of the Land Acquisition Act (1 of 1894) the appellant’s
land as being needed for a public purpose,
A.I.R. 1957 S.C. 790.
(2) [1964] 5 S.C.R. p. 294.
413
and authorised the Special Land Acquisition Officer,
Ahmedabad, to perform the functions of the Collector under
the Act. The Special Acquisition Officer after considering
the objections raised by the appellant submitted this report
to the Commissioner who issued a declaration under s. 6(1)
of the Act. The appellant then moved the High Court of
Gujarat under Arts. 226 and 227 of the Constitution for a
writ, but his petition was dismissed. His case inter alia
was that the President’s notification under Art. 258 (1) was
ineffective after the partition since the consent of the
Government of the newly formed State of Gujarat to the
entrustment of functions to its officer had not been
obtained as required by, Art.258 (1).
Article 258 (1) of the Constitution reads:-
"Notwithstanding anything in this Constitution
the President may, with the consent of the
Government of a State, entrust either
conditionally or unconditionally to that
Government or to its officers functions in
relation to any matter to which the executive
power of the Union extends".
One of the contentions put forward before this Court was
that the power exercised by the President was executive in
character and the functions which might be entrusted to a
State Government under Art. 258(1) were executive and as
such entrustment of such executive authority was not law
within the meaning of s. 87 of the Bombay Reorganisation Act
which made provisions for 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 Reorgani-
sation 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
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414
(b) to the exercise of such rights, authority
and jurisdiction as are exercisable by the
Government of India by virtue of any treaty or
agreements:
Provided that -the executive power referred to
in sub-cl. (a) shall not, save as expressly
provided in the Constitution or in any law
made by Parliament, extend in any State to
matters with respect to which the Legislature
of the State has power to make laws. Prima
facie, the executive power of the Union
extends to all matters with respect to which
Parliament has power to make laws and in
respect of matters to which the power of the
Parliament extends".
The Court then went on to consider the nature of the power
exercised by the President under Art. 258(1). It noted that
by item 42 List III the subject of acquisition of property
fell within the Concurrent List and the Union Parliament had
power to legislate in respect of acquisition of property for
the purposes of the Union and by Art. 73(1)(a) the executive
power of the Union extended to the acquisition of property
for the Union. It was observed that "by Art. 298 of the
Constitution the executive power of the Union extends to the
carrying on of any trade or business and to the acquisition,
holding and disposal of property and the making of contracts
for any purposes. The expression "acquisition, holding and
disposal of property" would, in our judgment, include com-
pulsory acquisition of property. That is a provision in the
Constitution which within the meaning of the proviso to Art.
73(1) expressly provides that the Parliament may acquire
property for the Union and consequently executive power of
the Union in relation to compulsory acquisition of property
is saved thereby, power of the State to acquire land
notwithstanding."
Reference was made also by the majority of Judges to the
case of Edward Mills Co. Ltd. v. State of Ajmer(1) where it
was held that an order made under s. 94(3) of the Government
of India Act, 1935 was, notwithstanding the repeal of the
Government of India Act, 1935, by Art. 395 of the
Constitution, law in force. Finally, it held by the
majority of Judges (p. 315):-
"We see no distinction in principle between the notification
which was issued by the Governor General in Edward Mills’
case, and the notification with which we are dealing in this
case. This is not to say that every order issued by an
executive authority has the force of law. If the order is
purely administrative, or is not issued 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
(1) [955] 1 C.S.R. 735.
415
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
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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 its order as published in the notifica-
tion of the Gazette of India or the Gazette of the State was
to be treated as law on the subject.
In the instant case the provision of s. 10 (4) of the Act
puts orders under ss. 8 and 9 as published under s. 10 (1)
in the same street as a law made by Parliament itself which,
as we have already said, could only be done under Art. 327,
and consequently the objection that the notification was not
to be treated as law cannot be given effect to.
In the result the appeal fails and is dismissed with costs.
R.K.P.S. Appeal dismissed.
416