(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard Mr. B. T. Rao, learned counsel for the petitioner and Mr. P. C. Kavina, learned senior counsel, assisted by Mr. Biren Vaishnav for respondent No. 3. This petition has been filed by the petitioner for the following reliefs:
“A) Your Lordships may be pleased to admit and allow this petition;
B) Your Lordships may be pleased to issue a writ of mandamus or a writ, order or direction in the nature of mandamus or any other writ, order or direction quashing and setting aside the order dated 12.12.2006 passed by the Delimitation Commission reserving the Gujarat Legislative Assembly Bardoli seat from S.T. to S.C. and direct the respondent Delimitation Commission to undertake the exercise once again and decide the issue after hearing all concerned afresh for the reasons stated in the Memo of Petition and in the interest of justice;
C) Your Lordships may be pleased issue a writ of mandamus or a writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction directing the respondent Delimitation Commission to issue Notification reserving the Gujarat Legislative Assembly seat 169 Bardoli for S.T. for the reasons stated in the Memo of Petition and in the interest of justice;
D) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents, their agents and servants to reserve the Gujarat Legislative Assembly seat 169 Bardoli for S.T. in the ensuing elections of Gujarat State Legislative Assembly and all other elections for the reasons stated in the Memo of Petition and in the interest of justice;
E) Your Lordship may grant adinterim relief in terms of prayer clause (C); ”
2. Mr. Kavina, learned senior counsel for respondent No. 3 has raised a preliminary objection that in view of Article 329 of the Constitution of India, the writ petition is not maintainable. Mr. Rao, learned counsel for the petitioner has urged that he is not challenging the validity of the delimitation law but he has challenged reservation of constituency for Scheduled Tribes. He urged that in view of Section 9(1)(d) Delimitation Act, 2002, as amended on 01/01/2004 by the Delimitation (Amendment) Act, 2003 and the Guidelines and Methodology for Delimitation of Assembly and Parliamentary Constituencies, ClauseIII Population, it has been provided that, 'the total population of the State has to be considered as per 2001 census' and in ClauseVII Reservation of seats for SCs and STs, it has been provided that, 'the constituencies to be reserved for STs will be those where the percentage of ST population to the total population of the constituencies is the largest'. According to the learned counsel for the petitioner, in Bardoli constituency, there are 1,99,225 ST voters and the total numbers of SC voters are 35,563, therefore, since the largest population of ST was there, therefore, seat was required to be reserved for ST candidate, instead the respondent has reserved seat for SC candidate. The learned counsel further urged that the Delimitation Commission of India has issued Notification dated 12/12/2006, wherein, order No. 33 had been issued. According to the learned counsel for the petitioner was not applied to assembly elections 2008 as the public made a hue and cry. However, according to Mr. Kavina the notification was not applied to 2008 elections as Presidential assent was not received.
2.1 Learned counsel for the petitioner has placed reliance on a decision of the Apex Court in Laxmikant Bajpai Vs. Haji Yaqoob and Others, reported in (2010) 4 Supreme Court Cases 81. On the other hand, learned senior counsel for the respondent has relied on a decision of the Apex Court in Association of Residents of Mhow (ROM) and another Vs. Delimitation Commission of India and Others, reported in (2009) 5 Supreme Court Cases 404, wherein, in Para 30, the Apex Court has held as under:
“30. In the present case, the High Court of Madhya Pradesh at Jabalpur summarily dismissed the writ petition under Article 226 of the Constitution praying for writ of certiorari for quashing the notification issued in pursuance of subsection (1) of Section 10 of the Act in respect of the delimitation of Indore Parliamentary Constituency. The petition was rejected on the short ground that the order of the Commission once published under Section 10(2) of the Act is law made under Article 327 of the Constitution and cannot be called in question in any court by virtue of Article 329 of the Constitution.”
3. Be that as it may, since a clear mandate is there in Article 329 of the Constitution of India that there is a bar to interfere by the Court in electorate matters and since the petitioner is challenging the delimitation of constituency and in the instant case, as the Commission has already published order under Section 10(2) of the Delimitation Act, 2002 – Order No. 33 on 12/12/2006, which has also received the assent of the President subsequent to election of 2008, therefore, it is a law made under Article 327 of the Constitution, which cannot be called in question in any Court in view of Article 329 of the Constitution of India. For the reasons as aforesaid, we do not find merits in the writ petition. This writ petition fails and is accordingly dismissed.
[ V. M. Sahai, J. ] [ G. B. Shah, J. ] hiren