Reserved On 05.10.202 vs Unknown
2021 Latest Caselaw 1282 j&K

                                                             Case No.5




      HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                       AT JAMMU

                                                  OWP No.200/2009
                                                  IA No. 248/2009


                                                Reserved on 05.10.2021.
                                                Pronounced on 08 .10.2021.



                                                              ..... petitioner (s)
Chaman Lal Kanathia and ors
                               Through :-   Mr. Roop Lal Advocate

                         V/s

                                                             .....Respondent(s)
UOI and others
                               Through :- Mr. Vishal Sharma ASGI

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                JUDGMENT

1 In this petition, the petitioners, who claim to be the members of

Schedule Caste and Scheduled Tribe categories seek a mandamus to the

respondents to reserve one Parliamentary Seat in the Lok Sabha in the State of

Jammu and Kashmir for the Scheduled Castes and one Parliamentary Seat for

the Scheduled Tribe categories under Article 330 (1) & (2) read with Article

341 & 342 of the Constitution of India. They also pray for an order restraining

the respondents from conducting Parliamentary elections in near future.

2 Mr. Vishal Sharma, learned ASGI, appearing for the respondents,

relies upon the counter affidavit which the respondents filed on behalf of

Election Commission of India in OWP No. 816/1999 which already stands

disposed of by a Division Bench of this Court vide its judgment dated

31.07.2000. He submits that the present writ petition is filed on a wrong

premise and without proper understanding of provisions of Articles 82, 170,

330 and 332 of the Constitution of India as they stood before the amendments

made thereto by the Constitution (42nd Amendment )Act, 1976. It is submitted

that the existing Articles 82 and 170 as they stand after 42nd Amendment

peremptorily provide that no further delimitation of the existing parliamentary

and assembly constituencies in any State which were last determined on the

basis of 1971 Census shall be made by any authority, until the relevant

population figures for the first Census taken after the year 2000 have been

published. Likewise, Articles 330 and 332 also provided that the reservation

for seats for the Scheduled Castes and Scheduled Tribes in the House of the

People and the Legislative Assemblies of the States shall be made having

regard to the population of the Scheduled Castes and the Scheduled Tribes as

ascertained at the 1971 Census.

3 Reliance is placed by Mr. Sharma, learned ASGI on the judgment

of the Hon'ble Supreme Court in the case of Megh Raj Kothari vs.

Delimitation Commission, AIR 1967 SC 669 to contend that the validity of

any law relating to delimitation of constituencies or the allotment of seats to

such constituencies, made or purported to be made under Article 327 or Article

328 is not open to challenge in any Court.

4 Having heard learned counsel for the parties and perused the

material on record, I am of the considered view that this Court cannot issue a

mandamus to the respondents to reserve a particular parliamentary

constituency for the Scheduled Caste or Scheduled Tribe categories. A view in

this regard is required to be taken by the competent authority on the basis of

recommendations made by the Delimitation Commission constituted under The

Delimitation Act, 2002. [Act of 2002].

5 It has been brought to the notice of this Court that the Ministry of

Law and Justice (Legislative Department), Government of India vide S.O

1015 (E) dated 06.03.2020 has constituted a Delimitation Commission for

allocation of seats in the House of People to the UT of Jammu and Kashmir

and number of seats in the Legislative Assembly. The Delimitation

Commission constituted for Jammu and Kashmir was given one year's time to

complete its exercise and submit its report. However, vide S.O 1023 (E) dated

03.03.2021, the period of Delimitation Commission has been extended from

one year to two years.

6 In view of the aforesaid when the Delimitation Commission is

seized of the matter and exercise is under way, it would not be appropriate for

this Court to make intervention in the matter. The petitioners, if aggrieved, are

well within their right to approach the Commission with their representation

and seek consideration of their grievance. It is for the Delimitation

Commission constituted for Jammu and Kashmir to consider the grievance of

the petitioners and redress the same if found genuine. In due deference to the

doctrine of separation of powers, I refrain myself from issuing any mandamus

to the respondents to reserve one Parliamentary Seat each for SCs and STs as is

claimed by the petitioners in this petition. This petition is, accordingly, found

not maintainable and dismissed, leaving it open to the petitioners to approach

the Delimitation Commission with an appropriate representation.

                                                 (SANJEEV KUMAR)
                                                           JUDGE
JAMMU
08 .10.2021
Sanjeev                   Whether order is speaking: Yes

                          Whether order is reportable: Yes/No