Delhi High Court

Shoaib Iqbal vs Union Of India (Uoi) And Ors. on 9 July, 2007

Author: M Mudgal

Bench: M Mudgal, J Singh

JUDGMENT

Mukul Mudgal, J.

Page 1984

1. This writ petition challenges the constitutional validity of the notification dated 20th September, 2006 issued by the Respondent No. 2, the Delimitation Commission of India, in respect of the exercise of delimitation carried out by it, as being ultra vires, unconstitutional, illegal, null and void for being carried without the jurisdiction and contrary to the provisions of the Government of National Capital Territory Act, 1991 (hereinafter referred to as the 'NCT Act').

2. The brief facts of this case as per the case set up by the petitioner are as follows:

a) The NCT Act was passed in the year 1991 which empowered the Election Commission to carry out the exercise of delimitation and to pass Delimitation orders under Section 38 and Section 39 of the NCT Act. Sections 38 and 39 of the NCT Act read as follows:

38. Election Commission to delimit constituencies (1) The Election Commission shall, in the manner herein provided, distribute the seats assigned to the Legislative Assembly under Section 3 to single member territorial constituencies and delimit them having regard to the following provisions, namely:

(a) All constituencies shall, as far as practicable, be limited in such a manner that the ratio between the population of each of such constituencies and the total population of the Capital is the same; and

(b) Constituencies in which seats are received for the Scheduled Castes shall, as far as practicable, be located in areas where the proportion of their population to the total population is comparatively large.

(2) The Election Commission shall-

(a) Publish its proposals for the delimitation of constituencies in the Official Gazette and also in such other manner as the Commission may consider fit, together with a notice inviting objections and suggestions in relation to the proposals and specifying a date on or after which the proposals will be further considered by it;

(b) Consider all objections and suggestions which may have been received by it before the date specified;

(c) After considering all objections and suggestions which may have been received by it before the date so specified, determine by one or more orders the delimitation of constituencies and cause such order or orders to be published in the Official Page 1985 Gazette; and upon such publication, the order shall have the full force of law and shall not be called in question in any court.

39. Power of Election Commission to maintain delimitation orders up-to-date. The Election Commission may, from time to time, by notification in the Official Gazette,-

(a) correct any printing mistakes in any order made under Section 38 or any error arising therein from inadvertent slip or omission; and

(b) where the boundaries or name of any territorial division mentioned in any such order are or is altered, make such amendments as appear to it to be necessary or expedient for bringing such order up-to-date.

b) On 4th June 2002, the Delimitation Act was passed for the purposes of carrying out the delimitation of Parliament and Assembly Constituencies in respect of all the States and Union Territories of India.

c) On 13th July 2002, the Delimitation Commission issued a letter by which the entire NCT was treated as one district for the purposes of delimitation.

d) On 23rd July 2004, the Divisional Commissioner of Delhi informed the Delimitation Commission that the NCT of Delhi is not one district as was stated by the Delimitation Commission by its letter dated 13th July 2002 and it was informed that the Ministry of Home Affairs by a letter dated 13th September 1996 had conveyed the approval of nine districts in Delhi, coterminus with the nine police districts.

e) On 27th February, 2006 a notification was published in the Nav Bharat Times (Hindi), the Times of India and the Delhi Gazette extraordinary by which a proposal was made for inviting objections/suggestions by the respondent with respect to the Delimitation process. In addition to Hindi and English, the said proposal was not published in Urdu and Punjabi, which are the second official languages of Delhi as per the Delhi Official Language Act, 2000 and it fixed an unreasonably short time period of two weeks to file the objections. In addition, the Matia Mahal Constituency which has a 65% Muslim population required that the proposal ought to have been published in Urdu.

f) On 9th February 2006, a representation was made to the respondent stating that the ward No. 110 be retained in the Matia Mahal Constituency. On 10th February 2006 the petitioner wrote a letter to the respondent in which it was specifically pointed out that the ward No. 110 should not be transferred from The Matia Mahal Constituency to Chandni Chowk and a request was also made to retain EB 1 to 83 in The Matia Mahal constituency.

Page 1986

g) On 21st February 2006, the petitioner participated in a public meeting held by the Delimitation Commission and agreed to its proposal to not to shift the Ward No. 110 to the Chandni Chowk Constituency. But, the minutes of the meeting showed that the ward No. 110 was shifted to Chandni Chowk.

3. The learned senior counsel for the petitioner, Shri R.K. Anand submitted as follows:

a) Section 11 of the Delimitation Act 2002 (hereinafter referred to as the Delimitation Act) empowers the Election Commission to keep the delimitation orders up to date. Section 11 of the Delimitation Act reads as follows:

Section 11-Power to maintain delimitation orders up-to date.

(1) The Election Commission may, from time to time, by notification in the Gazette of India and in the Official Gazette of the State concerned-

(a) correct any printing mistake in any of the orders made by the Commission under Section 9 or any error arising therein from an inadvertent slip or omission; and

(b) where the boundaries or name of any district or any territorial division mentioned in any of the said orders are or is altered, make such amendments as appear to it to be necessary or expedient for bringing the orders up-to-date, so, however, that the boundaries or areas or extent of any constituency shall not be changed by any such notification.

(2) Every notification under this section shall be laid, as soon as may be after it is issued, before the House of the People and the Legislative Assembly of the State concerned.

Thus, it was the intention of the legislature that at the time of enactment of the Delimitation Act that the delimitation exercise was to be done only by the delimitation commission after each census after which it had no role to play and it was the Election Commission which was empowered by the Parliament to keep the delimitation orders up to date.

b) Article 239AA of the Constitution, which was inserted in the Constitution by the 69th Amendment Act 1991 with effect from 1st February 1992, which provides for a special provision with respect to Delhi. Article 239-AA(2)(b) reads as follows:

239AA. Special provisions with respect to Delhi

(2)(b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament.

The NCT Act was passed by the Parliament to give effect to Article 239-AA of the Constitution and came into force on Page 1987 1st February 1992, which provides for a special provision with respect to Delhi. Article 239-AA(2)(b) reads as follows:

239AA. Special provisions with respect to Delhi

The NCT Act was passed by the Parliament to give effect to Article 239-AA of the Constitution and came into force on 1st Feburary. Article 239-AA(2)(b) states that the total number of seats in the Legislative assembly shall be regulated by the law made by the Parliament. Accordingly, the Parliament under Section 3(1) of the NCT Act fixed the total number of seats in the NCT of Delhi at 70. Sections 38 and 39 of the NCT Act provides for the continuous power of the election Commission to keep its delimitation orders up-to-date. In the year 2002, the Delimitation Act, 2002 came into force which provided for the delimitation by the Delimitation Commission on the basis of the census of the year 1999. It is pertinent to note that the Delimitation Act, 2002 did not supersede or repeal the provisions of the NCT Act. Thus, the Parliament could not have created two parallel authorities, i.e. the Election Commission and the Delimitation Commission for carrying the exercise of delimitation in the NCT of Delhi on the basis of the same census figures of the year 1999. Thus, Articles 170(3), 239-AA(2)(b) and 327 of the Constitution of India, Section 3, 38 and 39 of the NCT Act and Section 11 of the Delimitation Act make it clear that the Parliament by conscious decision has specifically granted the continuous power to carry delimitation and to keep delimiation orders up-to-date in the NCT of Delhi to the election Commission. Further, by an amendment in the year 2005 in the NCT Act, the Parliament has continued to grant the power to carry out delimitation exercise in the NCT of Delhi on the basis of 2001 census to the Election Commission.

(i) Section 8 of the Delimitation Act, 2002 provides only for readjustment of the number of seats which has been specifically dealt with under Section 3(1) of the NCT Act which had fixed the number of seat for the Legislative Assembly as 70 as per the mandate of Article 239-AA(2)(b) of the Constitution of India. Therefore, Section 9 of the Delimitation Act, 2002 has no application to the NCT of Delhi.

(ii) A comparison of the objects and reasons of the Delimitation Act 1972 and the Delimitation Act 2002 proves that whereas the former was made specifically applicable to Delhi, the latter was not made applicable to the NCT of Delhi.

Page 1988

(iii) The NCT Act was enacted by the Parliament under Article 239-AA of the Constitution of India whereas the Delimitation Act, 2002 was enacted under Articles 82, 170 and 327 of the Constitution of India.

(d) The power of the Election Commission under the NCT Act is continuous and not for the first constitution of the Assembly as per para 3 of the Statement of objects and reasons of the NCT Act. Para 3 of the Statement of objects and reasons of the NCT Act reads as follows:

Under the Bill the delimitation of constituencies will be made by the Election Commission in accordance with the procedure set out therein. Having regard to the special conditions prevailing in Delhi, it has been provided that in respect of the first constitution of the Assembly, such delimitation will be on the basis of provisional figures of population in relation to 1991 census, if final figures have not been published by then.

The word 'first constitution of the Assembly' is used with respect to the provisional figures of the census of the year 1991 as the basis for the delimitation exercise to be carried out in the Government of NCT of Delhi. The 1991 Census figures were not available at the time when the NCT Act came into force, i.e., 1st February, 1992. It is pertinent to note that prior to coming into force of the NCT Act, the Delimitation Act, 1972 which was in force continued to provide for the delimitation on the basis of 1971 Census. It was in this background that the word 'first constitution of the Assembly' was mentioned in para 3 of the Statement of objects and reasons.

(e) Further, Sections 38 and 39 of the NCT Act empower the Election Commission to carry out the exercise of the delimitation regularly in future. The Parliament by Act 2005 amended and the added first proviso in Section 3 of the NCT Act, whereby it was stated that the reference...to the last preceding census of which the relevant figures have been published shall...be construed as a reference to the 2001 Census. Had the intention of the Legislature been to grant the power to the Election Commission only for the first constitution of the Legislative Assembly for the NCT of Delhi, there would have been no need to amend the NCT Act in 2005.

(f) The amendment to the NCT Act in the year 2005 also shows that the Parliament while amending the NCT Act was aware of the Delimitation Act, 2002. No provision of the NCT Act giving power to the Election Commission to carry out the delimitation exercise has been repealed either by the Delimitation Act or its subsequent amendment in the year 2005.

(g) The submission of the learned Counsel for the respondents that the proviso to Section 3 of the NCT Act been inserted by Act 5 of 2006, thus, giving powers to the Delimitation Commission under the NCT Act, cannot be countenanced as the second proviso states that role of the Delimitation Commission is only with respect to 'readjustment' and not 'delimitation'.

Page 1989

(h) Article 329 of the Constitution of India provides for bar in respect of election matters. Article 329 of the Constitution of India reads as follows:

329. Bar to interference by courts in electoral matters. - 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;

(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.

Article 329 is not applicable in the facts and circumstances of the present case since the Delimitation Commission was never authorized by any law to carry the delimitation exercise in the NCT of Delhi. Further, the bar under Article 329 presupposes that the exercise of power has been carried by an authority under proper authorization and in a legal manner, whereas the said delimitation exercise has been carried out by the Delimitation Commission not under any authority of law but under a mistaken authorization. The power of the High Court under Article 226 of the Constitution of India are wide enough and the bar under Article 329 would not prevent the Court from exercising its jurisdiction under Article 226 of the Constitution of India to correct/quash the illegalities committed by the authorities. In Venkatachalam v. A. Swamickan the Hon'ble Supreme Court approved the exercise of power by the High Court under Article 226 in a matter challenging an election in spite of the constitutional bar Article 329(b).

(i) The NCT Act enacted under Article 239-AA of the Constitution of India is a special law since the heading of Article of 239-AA clearly mentions 'Special Provisions with respect to Delhi' as stated earlier no repugnancy between the NCT Act and the Delimitation Act, 2002. Assuming that there is a repugnancy between the two Acts, the provisions of the NCT Act being special law would prevail over the Delimitation Act. Further, the fact that the Parliament amended both the Acts without repealing or superceding the provisions of NCT Act where the power to carry out the delimitation exercise in the NCT of Delhi was given to the Election Commission. The Parliament while amending both the Acts was aware that there exists no repugnancy and both the Acts operate in different fields.

4. The learned Additional Solicitor General, Shri A. Sharan, on behalf of the Attorney General of India, Shri Milon Banerjee appearing for the respondent No. 1, the Union of India submitted as follows:

(a) Article 327 of the Constitution read with Article 239-AA(2)(c), Article 246 and Entry 72, List 1 of the 7th Schedule of the Constitution clearly shows Page 1990 that the Parliament is empowered to enact the law in the NCT of Delhi providing for delimitation of its constituencies. Articles 246, 327 and Entry 72, List 1 of the 7th Schedule read as follows:

246. Subject-matter of laws made by Parliament and by the Legislatures of States.-

(1) Notwithstanding anything in Clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").

(2) Notwithstanding anything in Clause (3), Parliament, and, subject to Clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").

(3) Subject to Clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List").

(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.

327. Power of Parliament to make provision with respect to elections to Legislatures.-- 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 constituencies and all other matters necessary for securing the due constitution of such House or Houses.

Entry 72. Elections to Parliament, to the Legislatures of States and to the offices of President and Vice-President; the Election Commission.

By exercising the power to frame laws with respect to the Delimitation of constituencies provided by the above mentioned Articles, the Delimitation Act was enacted by the Parliament. Section 8 of the Delimitation Act makes a specific reference to Article 239-AA(2)(b) as the source of power to pass an order of delimitation of constituency in the NCT of Delhi. Therefore, the submission of the petitioner that the Delimitation Act 2002 is not applicable to the NCT of Delhi cannot be accepted.

(b) In Gobind Sugar Mills Ltd. v. State of Bihar and Ors. , it was held that the special statute will prevail over general statute. In the event of clash between the NCT Act and the Delimitation Act, 2002 Page 1991 it is the Delimitation Act, 2002 which will prevail because it is the special law enacted later in point of time by the Parliament. It was also held that while determining the question as to whether a statute is a general or a special one, the focus must be on the principal subject matter with reference to the intendment of the Act. The relevant portion of the said judgment reads as follows:

10. While determining the question whether a Statute is a general or a special one, focus must be on the principal subject-matter coupled with particular perspective with reference to the intendment of the Act. Keeping in mind this basic principle, we will have to examine the provisions of the two Acts to find out whether it is possible to construe harmoniously the provisions of Section 4 of the Finance Act and Section 49 of the Sugarcane Act. If it is not possible then an effort will have to be made to ascertain whether the legislature had intended to accord the levy on sugarcane a special treatment vis-a-vis the levy of purchase tax on other items, and a further endeavor will have to be made to find out whether Section 49 of the Sugercane Act excludes the applicability of the levy under Section 4 of the Finance Act. On a perusal of the provisions of the above Acts including the objects of the two Acts, it could be seen that the two enactments in question contemplate levy of purchase tax. While the Finance Act empowers the State to levy all commercial taxes generally, the Sugarcane Act empowers the levy of purchase tax only on sugarcane. In this background, there can be no doubt that the Legislature intended to enact a special enactment for the purchase of levy of purchase tax with reference to sugarcane under the Sugarcane Act to the exclusion of such levy under the Finance Act. Once we come to the conclusion that this is the intention of the legislation then the rule "general provision should yield to special provision" is squarely attracted.

In the present case, the Delimitation Act, 2002 is a special Act having regard to its nature of dealing with delimitation of constituency whereas the NCT Act is a re-organization Act with the constitution of the new State, namely, the NCT of Delhi. Therefore, the Delimitation Act, 2002 will prevail over the NCT Act.

(c) In case of conflict between Section 38 of the NCT Act and the provisions of the Delimitation Act, the provisions of the Delimitation Act will prevail as it is a well settled principle that later special statute impliedly repeals the previous enactment occupying that field hitherto as the legislature is presumed to know all the existing laws while enacting the new law. This position of law was also laid down by the Hon'ble Supreme Court in the case of Ratan Lal Adukia v. UOI . The relevant paragraph of the said judgment reads as follows:

In Municipal Council Palai v. T.J. Joseph, this Court considered the tests of repugnancy applied under Article 254(2) of the Constitution, Page 1992 relevant in the examination of circumstances bringing about an implied repeal. Strictly speaking the examination of the question whether an act of Parliament prevails against the law enacted by a State under Article 254, does not really involve any question of repeal. In Zaverbhai Amaida v. State of Bombay this Court applied the test conversely, of the principle of implied repeal to cases (of) repugnancy under Article 254(2). It was observed : (at p. 758)

It is true, as already pointed out, that on a question under Article 254(1) whether an Act of Parliament prevails against a law of the State, no question of repeal arises, but the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question under Article 254(2) where the further legislation by Parliament is in respect of the same matter as that of the State law.

The present writ petition is barred under Article 329(a) of the Constitution of India read with Section 10(2) of the Delimitation Act, 2002. Section 10(2) of the Delimitation Act, 2002 reads as follows:

10. Publication of orders and their date of operation.

(1) ...

(2) Upon publication of any law relating to delimitation cannot be called in question in any court of law as the same is barred under Article 329(a) of the Constitution. The present order of the delimitation is further protected by the mandate of law contained in Section 10(2) of the Delimitation Act.

(d) In the case of Election Commission v. Mohd. Abdul Gam , the Hon'ble Supreme Court held that considering the provisions of the Delimitation Act, 1972, the Election Commission has no power to restructure the constituencies. It has to be noted that the provisions of the Delimitation Act, 1972 are pari materia to that of the Delimitation Act, 2002. The relevant para of the said judgment reads as follows:

10. In our opinion the entire scheme of these enactments and the nature of power conferred on the Election Commission to merely update the Delimitation Order by making the necessary changes on account of subsequent events to correct the description in the Delimitation Order which has become inappropriate, lead to the conclusion that the power of the Election Commission under these provisions ins only in this kind. This power cannot extend to alteration of the boundaries or area or extent of any constituency as shown in the Delimitation Order. The prayer made in the writ petition filed in the High Court which has been granted by the High Court is contrary to the express prohibition contained in Section 11(1)(b) of the Delimitation Act, 1972. This being so, a Page 1993 mandamus could not be issued to the Election Commission to perform an exercise expressly forbidden by law. This appeal has, therefore be allowed.

5. One of the preliminary objections raised by the learned ASG is to the maintainability of this writ petition by raising the bar under Article 329(a) of the Constitution. The challenge in this writ petition is undoubtedly to the Notification dated 20th September, 2006 issued by the Delimitation Commission of India which has been published in the Gazette of the Government of NCT of Delhi on the same date. Section 10(2) of the Delimitation Act 2002 categorically states that 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." The Constitution Bench of the Hon'ble Supreme Court in Meghraj Kothari v. Delimitation Commission explained the law governing Article 329(a) of the Constitution. The facts in that case were that the petitioner, a resident of Ujjain, approached the High Court of Madhya Pradesh at Jabalpur by filing a writ petition under Article 226 of the Constitution for a writ of certiorari for quashing a notification issued by the Delimitation Commission in terms of Section 10(1) of the Delimitation Commission Act, 1962 in respect of the delimitation of certain parliamentary and assembly constituencies in the State of Madhya Pradesh. The said writ petition came to be dismissed summarily by the High Court on the ground of non-maintainability. The petitioner then appealed to the Hon'ble Supreme Court. Upholding the judgment of High Court and dismissing the appeal, the Hon'ble Supreme Court by a unanimous verdict held that AIR 1967 page 675:

19. ---Once the orders made by the Commission under Sections 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 Sections 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 Sections 8 and 9 published under Section 10(1) were to be treated as law which was not to be questioned in any court.

It was also held that (AIR 1967 page 676)

23. once the Delimitation Commission has made orders under Sections 8 and 9 and they have been published under Section 10(1), the orders are to have the same effect as if they were law made by Parliament itself.

6. Consequently, the Court also negatived the contentions advanced in the said case that the Delimitation Act was enacted in terms of Article 82 of the Constitution. In rejecting the contention, the Hon'ble Supreme Court explained as under AIR page 672):

11. It will be noted from the above that it was the intention of the legislature that every order under Sections 8 and 9 after publication Page 1994 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 Section 10(2) wanted to make it clear that orders passed under Sections 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-section (4) of Section 10 according to which the readjustment of representation 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 Section 8 or Section 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 Sections 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 Article 327 of the Constitution.

7. The above decision in Meghraj Kothari has held the field till date. The explanation offered by the petitioner that the jurisdiction of this Court under Article 226 is not ousted in view of the judgment of the Hon'ble Supreme Court in Venkatachalam (supra) cannot be accepted. In the first place, there was no occasion for the Hon'ble Supreme Court to consider the correctness or otherwise of the judgment of the Constitution Bench of the same Court in Meghraj Kothari (supra). The facts of the said case in Venkatachalam (supra) did not concern the question of delimitation of constituencies or the applicability of the power under Article 329(a). Therefore, the judgment in Venkatachalam (supra) cannot be relied upon to contend that the jurisdiction of the High Court under Article 226 cannot be curtailed with reference to the power under Article 329(a). It requires to be noticed as long as the judgment of the Hon'ble Supreme Court in Meghraj Kothari (supra) holds the field it is not possible for this Court to overlook the said judgment and hold that the jurisdiction of this Court under Article 226 in writ petition challenging the gazette notification of the Delimitation Commission is not ousted. In view of the above settled position of law, this Court is inclined to uphold the preliminary objection raised by the respondent with regard to the maintainability of this writ petition.

8. The writ petition can be dismissed on the above short ground itself. Nevertheless, since extensive and erudite arguments were advanced by the learned Senior counsel for the petitioner Shri. R.K. Anand, on the powers and the jurisdiction of the Delimitation Commission in issuing the impugned notification. This Court is inclined to decide that issue as well.

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9. The principal ground on which the impugned notification is sought to be challenged is that it has been issued without the authority of law since the Delimitation Commission has no jurisdiction with regard to the exercise of delimitation of Assembly constituencies for the NCT of Delhi. It is submitted by the petitioners that the NCT Act read with Article 239-AA(2) of the Constitution is a special law exclusively dealing with the task of delimitation of constituencies of the NCT of Delhi and therefore, there is no question of the Delimitation Commission exercising powers and jurisdiction with respect to such topic. The petitioners further pointed out that there is no repugnancy between the Delimitation Act and the NCT Act and that each operates in a different field. However, even assuming that there is such repugnancy, the NCT Act being a special law should prevail over the Delimitation Act, 2002 which is a general law. Lastly it is submitted that since the Parliament has carried out amendments in the NCT Act on two occasions and lastly in 2006 without repealing or superseding the provisions of the NCT Act, the intention was that in regard to the NCT of Delhi, the Delimitation Act was not intended to apply.

10. The reply of the respondents to this submission is that the objects and purposes for which the NCT Act was enacted shows that it was intended to operate only in a limited sphere in the context of the initial delimitation of Assembly Constituencies for the NCT of Delhi. However, when the Delimitation Act was enacted, it was intended to apply to all the States and with reference to all the parliamentary and assembly constituencies in the country. The Delimitation Act applies exclusively for the purposes of delimitation in the entire country whereas the NCT Act only incidentally deals with the question of limitation of constituencies in the NCT of Delhi. The respondents too maintain that there is no repugnancy between the two laws if the scope of each is correctly understood. They also contend that the Delimitation Act is a special law which is enacted later in point of time and that it should therefore prevail over the NCT Act which was enacted earlier.

11. This Court finds merit in the submissions of the respondents. While it is true that Part III of the NCT Act is titled "Delimitation of Constituencies", it is significant that Section 38 does not begin with a non-obstante clause. In other words, it is not as if the said provision is to apply notwithstanding any other law that may have been enacted by the Parliament. Secondly, although under Section 38 of the NCT Act it is the Election Commission that has been given the powers to initially delimit the constituencies of the NCT of Delhi, the Parliament is presumed to have been conscious of the scope and powers of the Delimitation Commission and the fact that the Delimitation Commission is constituted from time to time by special laws made by the Parliament itself under Article 327 of the Constitution. The law enacted by the Parliament constituting the Delimitation Commission from time to time is only for a limited duration. The Delimitation Commission, as explained by the Hon'ble Supreme Court in Meghraj Kothari (supra), has a very specific task of delimiting the parliamentary and assembly constituencies keeping in view the changes in the demographic patterns which is reflected in the census figures from time to time. That is why in Meghraj Kothari (supra) it was said that notwithstanding the provisions contained in any other earlier orders including the Page 1996 Representation of the People Act, 1950, once the order by the Delimitation Commission is made under Sections 8 and 9 of the Delimitation Act there would be "the complete effacement of all provisions of this nature which were in force before the passing of the orders under Sections 8 and 9.

12. In the instant case, it is clear that the Delimitation Act, 2002 is a later central law governing the field of delimitation of the constituencies of the NCT of Delhi. There is no exception provided in this law for its applicability to the NCT of Delhi. It is meant to apply to all the States and Union Territories in the country. The point made by the petitioners that in the Preamble to this Act, unlike the Preamble in the earlier corresponding statutes, there is no specific mention of the NCT of Delhi, is to no avail. The NCT of Delhi, has, with the enactment of the NCT Act, become a State and is no longer considered a Union Territory for the purpose of Schedule II of the Constitution. Therefore, the Delimitation Act 2002 which applies to all the states in the country naturally includes the NCT of Delhi as well.

13. The further point that requires to be noticed is that the Delimitation Commission undertakes the exercise of readjusting the constituencies from time to time as a result of the changes in the demographic pattern. This is clear from Section 4 of the Delimitation Act 2002 which reads as under:

4. Duties of the Commission:

(1) the readjustment made, on the basis of the census figures as ascertained at the census held in the year 1971 by the Delimitation Commission constituted under Section 3 of the Delimitation Act, 1972, of the allocation of seats in the House of the People to the several States and the total number of seats in the Legislative Assembly of each State shall be deemed to be the readjustment made by the Commission for the purposes of this Act.

(2) Subject to the provisions of Sub-section (1) and any other law for the time being in force, the Commission shall readjust the division of each state into territorial constituencies for the purpose of elections to the House of People and to the State Legislative Assembly on the basis of the census figures as ascertained at the census held in the year 1991:

Provided that where on such readjustment only one seat is allocated in the House of the People to a State, the whole of that State shall form one territorial constituency for the purpose of elections to the House of the People from that State.

14. In contrast, Section 39 of the NCT Act only talks of a single time exercise to be performed by the Election Commission for "distributing the seats assigned to the legislative assembly under Section 3 of that Act." Further Section 39 requires the Election Commission "to maintain the delimitation orders up to date." As explained by the Hon'ble Supreme Court in Election Commission v. Mohd. Abdul Gam , once the Delimitation Commission is in place, there is no question of the Election Page 1997 Commission exercising the powers of the Delimitation Commission. Section 11 of the Delimitation Act, 2002 reads as under:

11. Power to maintain delimitation orders up-to-date

(1) The Election Commission may, from time to time, by notification in the Gazette of India and in the Official Gazette of the State concerned-

(a) correct any printing mistake in any of the orders made by the Commission under Section 9 or any error arising therein from an inadvertent slip or omission; and

(2) Every notification under this Section shall be laid, as soon as may be after it is issued, before the House of the People and the Legislative Assembly of the State concerned.

Between the time one Delimitation Commission completes its exercises and the next one is constituted, the Election Commission would, in term of Section 39 of the NCT Act and Section 11 of the Delimitation Act, be required to maintain the delimitation orders up to date in the manner explained in those provisions. There is, therefore, no apparent or real conflict between the functions of the Election Commission under the NCT Act and that of the Delimitation Commission under the Delimitation Act, 2002.

15. This is also evident from a perusal of Section 8 of the Representation of the People Act, 1950 which contemplates the exercise of the delimitation to be made by the Delimitation Commission or as the case may be by the Election Commission. Section 8 reads as follows:

Section 8 - (1) Consolidation of delimitation orders. - As soon as may be, after all the orders referred to in Sub-section (5) of Section 4 or in Sub-section (3) of Section 7 relating to the delimitation of Parliamentary and Assembly constituencies have been made by the Delimitation Commission or, as the case may be, the Election Commission and published in the Official Gazette, the Election Commission shall, after making such amendments as appear to it to be necessary for bringing up-to-date the description of the extent of the Parliamentary and Assembly constituencies as given in such orders, consolidate all such orders into one single order to be known as [the Delimitation of Parliamentary and Assembly Constituencies Order, 1976] and shall send authentic copies of that Order to the Central Government and to the Government of each State having a Legislative Assembly; and thereupon that order shall supersede all the orders referred to in Sub-section (5) of Section 4 or in Sub-section (3) of Section 7 and shall have the force of law and shall not be called in question in any Court.

16. This also explains the apparent distinction that was drawn by the petitioner between the words "Delimit" and "Delimitation" used in Sections 38 Page 1998 and 39 of the NCT Act and the words "Readjustment" used in Section 8 of the Delimitation Act, 2002. 5. The word delimitation has been defined in Black's Law Dictionary 1, as the act of fixing, marking off or describing the limits or boundary line of a territory, country, authority, right, statutory exception or the like. It is not as if the concept of the Delimitation is only used in Section 38 of the NCT Act. Section 9 of the Delimitation Act explains the concept as involving the distribution of seats allocated to each State or assigned to the Legislative Assembly of each State as "Readjusted on the basis of 1971 census...." Therefore, the distribution/readjustment are all part of the exercise of delimitation itself. In other words, the delimitation exercise will perforce involve the redetermination of the territorial limits of constituencies, the distribution of readjustment as the case may be of seats or readjustment of the number of seats. As already explained it is not as if the nature of the powers exercised by the Delimitation Commission under the Delimitation Act, 2002 is different from what is exercised by the Election Commission under Section 38 of the NCT Act. Only the stages are different.

17. The learned Senior Counsel for the petitioner Shri R.K. Anand submitted that the Parliament could not have created two parallel authorities, namely, the Election Commission and the Delimitation Commission for carrying out the exercise of delimitation in the NCT of Delhi. However, we do not agree with this submission of the learned Senior counsel for the petitioner, as in our view, the Election Commission exercises the power of delimitation under the NCT Act initially whereas the Delimitation Commission possesses the power to carry out the exercise of delimitation from time to time with the updating of the previous census figures. Again, in the interregnum as explained earlier, the Election Commission will keep the delimitation orders up-to-date.

18. In view of the above position of law, there is no need to consider if there is any repugnancy between the two statutes and whether the doctrine of implied repeal is, therefore, attracted in the facts of the case.

19. Accordingly, this Court upholds the validity of the impugned Notification dated 20th September, 2006 issued by the Respondent No. 2 Delimitation Commission and gazetted in the Gazette of NCT of Delhi of the same date. This Court also finds no legal or constitutional infirmity in the delimitation exercise undertaken in respect of the NCT of Delhi by the Delimitation Commission. Consequently, there is no merit in this writ petition and it is dismissed as such with no order as to costs.