Suvendu Adhikari vs The State Of West Bengal & Ors
2023 Latest Caselaw 2044 Cal

                    IN THE HIGH COURT AT CALCUTTA
                   CONSTITUTIONAL WRIT JURISDICTION
                              (Appellate Side)
                                                     WPA (P) 611 of 2022
                                                     Reserved on: 17.03.2023
                                                     Pronounced on: 28.03.2023
Suvendu Adhikari
                                                                    ...Petitioner
                                          -Vs-
The State of West Bengal & Ors.
                                                                   ...Respondents

Present:-

Mr. Paramjit Singh Patwalia, Sr. Adv.

Mr. Nilanjan Bhattacharya Mr. Kabir Shankar Bose Ms. P. Tibrewal Mr. L.K. Chatterjee Mr. S. Chakraborty Ms. H. Verma Mr. V. Singh Mr. C. Pal Mr. R.N. Banerjee Mr. A.K. Mukherjee Mr. S. Das Ms. O. Chowdhury ... ... for the petitioner Mr. S.N. Mookherjee, AG Mr. A. Ray, GP Mr. Md. T.M. Siddiqui Mr. N. Chatterjee Ms. A. Pandey ... ... for the State Mr. Jayanta Mitra, Sr. Adv.

Mr. Jishnu Saha, Sr. Adv.

Ms. Sonal Sinha ... ... for the WBSEC Mr. Ashok Kumar Chakraborty Mr. Kumar Jyoti Tewari Mr. Sukanta Ghosh ... ... for the respondent no. 6

Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE

THE HON'BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE 2 WPA (P) 611 of 2022

Prakash Shrivastava, CJ:

1. Learned senior counsel for the petitioner has, at the outset,

submitted that he is confining this petition to the prayers relating to the

challenge to the notifications dated 29th of July, 2022 and 2nd of August,

2022 and to the issue relating to computation of population for the purpose

of reservation of seats for SC/ST and Backward Classes. He has sought

permission to withdraw the petition in respect of other prayers with liberty

to file a fresh petition in respect thereof after the elections are notified.

2. The prayer is allowed and the petitioner is permitted to confine the

petition to the above prayer which is pressed during argument by granting

liberty to file fresh petition in respect of other prayers at the appropriate

stage, if the need so arises.

3. The Gram Panchayat Elections are due to be held in the State of

West Bengal this year, 2023. The State Election Commission had, vide

notifications dated 29th of July, 2022 and 2nd of August, 2022, issued

various directives to compute the population of the Backward Classes for

the purpose of delimitation during the upcoming Gram Panchayat Elections.

The said notifications direct a State-wide survey to obtain the relevant

information for determination of population of Backward Classes in West

Bengal for reservation of seats in Panchayat General Elections. It further

states that since no public figure of population of Backward Classes

disaggregated to the level of Gram Panchayat Constituencies are available

in the State, a decision to conduct State-wide survey for determination of

population belonging to Backward Classes in the areas under 3-tier

Panchayat Raj Institutions is taken by the State. In respect of SC/ST, the

population figure is to be arrived at by adding 7.5% decadal growth rate of

population to the census figure of 2011. The petitioner being aggrieved with 3 WPA (P) 611 of 2022

the same, had submitted the representation dated 1st of November, 2022 to

the West Bengal State Election Commission. The said representation was

rejected by the State Election Commission vide order dated 17th of

November, 2022. Thereafter, the present petition was filed on 6th of

December, 2022.

4. Submission of learned counsel for the petitioner is that in view of

Section 5 of the West Bengal Panchayat Act, 1973 and Section 17 of the

West Bengal Pancyat Elections Act, 2003 and Rule 22 of the West Bengal

Panchayat Elections Rules, 2006, reservation of seats for SC/ST and

Backward Classes in the Gram Panchayat should bear the same proportion

to the total number of seats in that Gram Panchayat to be filled up by

election as the population of SC/ST or Backward Classes in that gram bears

to the total population of that gram. His further submission is that the

decision of the State to arrive at the figure of population of SC/ST on the

basis of census figure of 2011 by adding the decadal growth of 7.5% and

arriving the figure of population of Backward Classes on the basis of survey

in 2022 is defective as two different yardsticks cannot be adopted for

ascertaining the proportion of population of SC/ST and OBC. He submits

that for SC/ST population, estimated figure of 2021 are considered whereas

for OBC population, population figure of 2022 are taken into account which

itself is defective and will lead to incorrect result as numerator and

denominator should be ascertained by adopting some formula and for the

same year.

5. Learned counsel appearing for the respondent State Election

Commission has submitted that the term of the Gram Panchayats in the

State is expiring in May, 2023 and elections are imminent, therefore, no

interference at this stage is required. He submits that delimitation of 4 WPA (P) 611 of 2022

constituency is done every 10 years and reservation is done every 5 years,

therefore, for this election, delimitation and reservation, both are required to

be done. He submits that since the census figure of population of Backward

Classes is not available, therefore, the same is ascertained by conducting

survey and since the census population figure of SC/ST is available in

census, 2011, therefore, their population is arrived at by adding 7.5%

decadal growth. He has further submitted that the order rejecting the

petitioner's representation has not been challenged in this petition and that

the final notification relating to reservation of constituencies for SC/ST and

BC and delimitation has already been published.

6. Learned Advocate General has also opposed the petition by

submitting that this Court at this stage should not exercise the discretion on

going into the issue raised as the same will indefinitely postpone the

elections. He submits that the process of delimitation and reservation was

completed in November, 2022 whereas the writ petition has been filed on

6th of December, 2022. He has also submitted that the petitioner has not

challenged the order of the Election Commission deciding the petitioner's

representation and that there is a constitutional bar of interference

contained in Article 243-O of the Constitution.

7. Learned counsel appearing for the Union of India has submitted

that UOI is a formal party which is not concerned with the issue being

argued.

8. We have heard the learned counsel for the parties and have perused

the record.

9. Article 243D of the Constitution provides for reservation of seats in

Panchayats. In terms of clause (6) of Article 243D, the State Legislature has 5 WPA (P) 611 of 2022

been empowered to make provision for reservation of seats in any

Panchayat in favour of backward class of citizens.

10. Section 4 of the West Bengal Panchayat Act, 1973 provides for

Gram Panchayat and its Constitution. The first and second proviso to Sub-

section (2) of Section 4 relates to reservation of seats for Scheduled Castes,

Scheduled Tribes and Backward Classes in Gram Panchayat and reads as

under:

"(2) Persons whose names are included in the electoral roll prepared in accordance with such rules as may be made by the State Government in this behalf and in force on such date as the State Election Commissioner may declare for the purpose of an election pertaining to the area comprised in the Gram, shall elect by secret ballot at such time and in such manner as may be prescribed, from among themselves such number of members not being less than five or more than thirty as the prescribed authority may, having regard to the number of voters in hill areas and other areas and in accordance with such rules as may be made in this behalf by the State Government, determine:

Provided that seats shall be reserved for the Scheduled Castes, the Scheduled Tribes and the Backward Classes in a Gram Panchayat, and the number of seats so reserved shall bear, as nearly as may be and in accordance with such rules as may be made in this behalf by the State Government, the same proportion to the total number of seats in that Gram Panchayat to be filled up by election as the population of the Scheduled Castes or of the Scheduled Tribes or of the Backward Classes as the case may be, in that Gram, bears to the total population of that Gram and such seats shall be subject to allocation by rotation, in the manner prescribed, to such different constituencies having Scheduled Castes, Scheduled Tribes or Backward Classes population which bears with the total population in that constituency not less than one-half of the proportion that the total Scheduled Castes population, the Scheduled Tribes population or, the Backward Classes population, 6 WPA (P) 611 of 2022

as the case may be, in that Gram, bears with the total population in that Gram:

Provided further that the total number of seats so reserved for the Scheduled Castes, the Schedules Tribes and the Backward Classes, severally or jointly, as the case may be, shall not exceed fifty per cent of the total number of seats in the Gram Panchayat as determined in terms of the first proviso:"

11. Section 17(2A) of the West Bengal Panchayat Elections Act,

2003 provides for reservation of seats for the Backward Classes and the

proportion thereof and reads as under:

"17. ...

(2A) Seats shall be reserved for the Backward Classes in every Gram Panchayat, Panchayat Samiti, Zilla Parishad or the Siliguri Mahakuma Parishad in such manner as may be prescribed and the number of seats so reserved shall bear as nearly as may be, the same proportion with the total number of seats to be filled by direct election to the Gram Panchayat, the Panchayat Samiti, the Zilla Parishad or the Siliguri Mahakuma Parishad, as the case may be, as the population of the Backward Classes in the area of the Gram Panchayat, Panchayat Samiti, Zilla Parishad or the Siliguri Mahakuma Parishad, as the case may be, bears with the total population of that area, and such seats may be allotted by rotation to different constituencies of that Gram Panchayat, Panchayar Samiti, Zilla Parishad or the Siliguri Mahakuma Parishad in such manner as may be prescribed."

12. Rule 22 of the West Bengal Panchayat Elections Rules, 2006

provides for delimitation of constituencies of a Gram Panchayat and

allocation of seats, assignment of serial numbers for the constituencies and

the reservation of seats. First and second proviso to Explanation II of Rule 7 WPA (P) 611 of 2022

22 provides for determination of proportion of the SC/ST or Backward

Classes and reads as under:

"Explanation II: For the final stage of calculation for arriving at the number of seats to be reserved, the digit in the second place of decimal, if any shall be totally ignored, and the whole number in the figure obtained shall be raised by one if the digit at the first place of decimal is not less than five while ignoring any digit below five at the first place of decimal.

Provided also that the number of the Scheduled Castes or the Scheduled Tribes population of a Gram or the proportion of the Scheduled Castes or the Scheduled Tribes or the Backward classes population as aforesaid shall be determined on the basis of the last preceding census of which the relevant figures have been published:

Provided also that when census figures are not available for any Gram or constituency or for any portion of any constituency, the prescribed authority shall, subject to such order of the Commission as may be made in this behalf, determine the proportion which the Scheduled Castes or the Scheduled Tribes or the Backward Classes population bears with the total population on the basis of any other authenticated record maintained by any office or organization of any department of the State Government or, where no such record is available, on the basis of a local enquiry, which may include house to house enumeration, caused by him for the purpose after consulting, whenever necessary, any portion of the census report, electoral roll of the West Bengal Legislative Assembly or any other authenticated record of any other department of the State Government that may be of assistance."

13. In terms of the first proviso, the SC, ST and BC of a gram or their

proportion is to be determined on the basis of the last preceding census. The

second proviso deals with the eventuality when census figures are not

available for gram or constituency or for any portion of any constituency

and requires determination of proportion which the SC, ST or BC bears

with the total population on the basis of any other authenticated record and 8 WPA (P) 611 of 2022

in the absence of such record, on the basis of local enquiry which may

include house to house enumeration after consultation, whenever necessary,

any portion of the census report.

14. In the present case, though the 2011 census figures for SC/ST

population are available but no such census figures for Backward Classes

are available. The Government of West Bengal, Department of Panchayat

and Rural Development had issued the notification dated 29th of July, 2022

to conduct State-wide survey for determination of the population of

Backward Classes in the State for reservation of seats in Panchayat General

Elections. The detailed guidelines of survey were enclosed with the

notification. The enumerators were required to visit all the household under

the unit in order to identify the household belonging to Backward Classes.

The guidelines provide for draft publication of constituency-wise list of

households visited by the enumerators for the survey, invitation of claims

and objection and final publication of list of households with population

figure in Gram Panchayat constituencies along with data on population of

Backward Classes for Gram Panchayats and Blocks. As per the schedule

enclosed with the notification, the final publication of data on population

for Backward Classes, after decision of objections, was to be made on 2nd of

September, 2022. By the order dated 2nd of August, 2022, it was clarified

that the existing polling station-wise survey for determination of population

of Backward Classes could be undertaken instead of the Gram Panchayat

constituency-wise survey.

15. The undisputed facts show that the figures of SC/ST and total

population have been arrived at by adding the decadal growth of 7.5% in

the 2011 census figure of SC/ST and total population. Hence, the estimated

figures so arrived at for SC/CT relate to the year 2021, whereas, household 9 WPA (P) 611 of 2022

survey in respect of only the Backward Classes has been conducted in

August, 2022. Therefore, we find substance in the argument of the learned

counsel for the petitioner that the numerator and denominator in the present

case have been taken by adopting different yardsticks and that the estimated

population figure for the two categories relate to different years.

16. So far as method of household survey adopted for ascertaining BC

population is concerned, learned Advocate General and learned counsel for

the Election Commission have pointed out paragraph 33 of the judgment of

the Hon'ble Supreme Court in the matter of Anugrah Narain Singh and

Another vs. State of U.P. and Others reported in (1996) 6 SCC 303

wherein similar issue in respect of elections of municipalities in the State of

U.P. was examined and the Hon'ble Supreme Court held that:

"33. In our view, the argument advanced on behalf of the State must be upheld. It is true that Article 243-P(g) has defined 'population' to mean "population as ascertained by the last preceding census of which the relevant figures have been published". The delimitation of constituencies and also preparation of electoral rolls will have to be done on the basis of the figures available from the last census which was taken in 1991. Reservation of seats for Scheduled Castes and Scheduled Tribes is mandatory under Article 243-T of the Constitution. This must also be done on the basis of the available figures from the census. Clause (6) of Article 243-T of the Constitution has made it permissible for the State Government to reserve seats for other Backward Classes. The census of 1991 has not enumerated the number of persons belonging to Backward Classes. Therefore, in order to reserve seats for citizens belonging to Backward Classes, their number will have to be found out. Clause (6) of Article 243-T has impliedly empowered the State Government to ascertain the Backward 10 WPA (P) 611 of 2022

Classes and the number of people belonging to such classes. Otherwise, the provisions of clause (6) of Article 243-T will become otiose and meaningless. Merely because, such an enumeration of people belonging to Backward Classes was made, does not mean that the figures enumerated by the last census were discarded. The latest available census figures had to be the basis for delimitation of the constituencies, preparation of electoral rolls and also for reservation of seats for Scheduled Castes, Scheduled Tribes and women. But census figures are not available for persons belonging to Backward Classes. The next census will be in the year 2001. There is no way to reserve seats for Backward Classes in the meantime except by making a survey of the number of persons belonging to such classes for the purpose of giving them assured representation in the municipal bodies. To do this exercise is not to do away with the last available census figures but to find out what was not to be found by the last census. Had such counting been done in the census, then it would not have been open to the State Government to embark upon a survey of its own. The State Government here had only two choices. It could say that there will be no reservation for people belonging to Backward Classes because, the census figures of such people are not available or it could make a survey and count the number of people belonging to the Backward Classes and reserve seats for them in the municipal bodies. The State Government has taken the latter course. This is in consonance with the provisions of clause (6) of Article 243-T. Therefore, the survey made by the State Government for finding out the number of persons belonging to Backward Classes was not in any way contrary to or in conflict with any of the provisions of the Constitution."

17. In the above paragraph 33, Hon'ble Supreme Court has considered

the constitutional scheme and Clause (6) of Article 243-T which is same as

Clause (6) of Article 243D of the Constitution and upheld the mode of

calculation of BC population by survey and count.

                                   11                   WPA (P) 611 of 2022


18.     The Hon'ble      Supreme Court in paragraph 34 of the above

judgment in the case of Anugrah Narain Singh (supra) has considered the

provisions of U.P. Act of 1959 as also Article 243-ZG of the Constitution

which relates to bar to interference by Courts in electoral matters in the

election to the municipalities, which is pari materia to Article 243-O

relating to bar to interference by Courts in election matters of Panchayats,

and has held that:

"34. Moreover, the U.P. Act of 1959 was amended to make it consistent with the provisions of Part IX-A of the Constitution. 'Population' was defined in Section 2(53-A) to mean "population as ascertained at the last preceding census of which the relevant figures have been published". This is identical to the definition given in Article 243-P(g). Section 32 which deals with delimitation, inter alia, provides that the State Government shall by order determine the number of seats to be reserved for Scheduled Castes, Scheduled Tribes, Backward Classes and for women. Section 7 lays down that in every Corporation, seats shall be reserved for Scheduled Castes, Scheduled Tribes and Backward Classes. There is a second proviso to Section 7 which lays down that if the figures of Backward Classes are not available, their population may be determined by carrying out a survey in the manner prescribed by the rules. These provisions come within the ambit of the phrase "any law relating to the delimitation of the constituencies or allotment of seats to such constituencies". The validity of this law cannot be challenged because of the protection given by Article 243-ZG of the Constitution. Therefore, the question whether the survey made by the State Government to ascertain the figures of persons belonging to Backward Classes was lawful or not cannot be raised in any Court."

19. In the above judgment, the view taken by the Hon'ble Supreme

Court is that the question relating to lawfulness of the survey made by the 12 WPA (P) 611 of 2022

State Government to ascertain the figure of persons belonging to Backward

Classes cannot be raised in any Court.

20. It is also worth noting that in the present case, the notifications for

reservation for SC/ST/BC and delimitation of constituencies, on the basis of

population figures arrived at in pursuance to impugned notification, have

already been issued and the elections are due in May, 2023, hence, any

interference at this stage will result in postponement of the elections.

21. Hon'ble Supreme Court in the matter of Lakshmi Charan Sen

and Others vs. A.K.M. Hassan Uzzaman and Others reported in (1985)

4 SCC 689 where the electoral roles were questioned, though held that the

electoral roles are not part of the process of election within the meaning of

Article 329(b) of the Constitution but expressed that the High Court ought

not to have passed the interim order as a result of which, the election to the

Legislative Assembly stood at risk of being postponed indefinitely and that

very often, the exercise of jurisdiction, especially the writ jurisdiction,

involves questions of propriety rather than of power and that the fact that

the Court has power to do a certain thing does not mean that it must

exercise that power regardless of the consequences. In the matter of

Kishansing Tomar vs. Municipal Corporation of the City of

Ahmedabad and Others reported in (2006) 8 SCC 352, Hon'ble Supreme

Court has expressed about timely holding of the election.

22. Having regard to the above analysis, though we find substance in

the argument of the learned counsel for the petitioner but we decline to

interfere at this stage by leaving it open to the respondent Election

Commission to consider the effect of the anomaly noted above in arriving at

proportion of SC/ST/BC population on the basis of the population of SC/ST

arrived at by adding decadal growth of 7.5% in census figure of 2011 and 13 WPA (P) 611 of 2022

calculation of population of Backward Classes on the basis of household

survey in August, 2022. The Election Commission is expected to ensure

that the object of the proviso to Sub-section 2 of Section 4 of West Bengal

Panchayat Act, 1973, the provisions of Sub-section 2A of Section 17 of the

West Bengal Panchayat Elections Act, 2003 and proviso to Explanation II

of Rule 22 of the West Bengal Panchayat Elections Rules, 2006 is not

defeated.

23. The petition is accordingly disposed of.

(PRAKASH SHRIVASTAVA) CHIEF JUSTICE

(RAJARSHI BHARADWAJ) JUDGE Kolkata 28.03.2023 ________ PA(RB)

(A.F.R. / N.A.F.R.)