HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & ORS.

A through the Delimitation Commission. Hence, we hold that there is no illegality associated with the establishment of the Delimitation Commission under the impugned Order dated 6th March 2020.

36Copy pinpoint36. Under the notification dated 6th March 2020, the appointment of the Chairperson of the Delimitation Commission who was a retired B Judge of this Court was for a period of one year. By the notification dated 3rd March 2021, the said period was extended up to two years. By the third impugned notification dated 21st February 2022, the said period of two years was extended to two years and two months. Once the Delimitation Commission was established, there is nothing wrong if the Central Government extended the period of appointment of the C Chairperson till the task of delimitation/readjustment was completed. The Delimitation Act, 2002 is silent about the term of the appointment of the Chairperson. Exclusion of the North-Eastern States from the purview of the notification dated 6th March 2020 D

37Copy pinpoint37. Another challenge which is seriously pressed is to that part of the second impugned notification dated 31st March 2021 by which the States of Arunachal Pradesh, Assam, Manipur and Nagaland were excluded from the purview of the Delimitation Commission constituted under the notification dated 6th March 2020. In the counter affidavit E filed by the Union of India, reliance has been placed on the letter dated 22nd February 2021 issued by the Deputy Secretary (NE-III), Ministry of Home Affairs, Government of India. In paragraphs 5 and 6 of the counter affidavit, it is stated that the Delimitation Commission set up on 12th July 2002 under the Chairmanship of a retired Judge of this Court F had completed the delimitation exercise in respect of the entire country except for four North-Eastern States of Assam, Arunachal Pradesh, Manipur and Nagaland. It is stated that delimitation of these four States was deferred due to security reasons. Section 10A of the Delimitation Act, 2002 permitted such a course to be adopted. Though these four States were a part of the notification dated 6th March 2020, it is stated in the letter dated 22nd February 2021 that there were number of petitions pending in this Court as well as in the Manipur High Court concerning delimitation exercise in North-Eastern States and that in the Court cases, discrepancies in census figures of 2001 in relation to these States were pointed out. In fact, it is stated that a number of notices have been issued regarding the said discrepancies. Therefore, the said letter was

HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 547 ORS. [ABHAY S. OKA, J.]

issued with the approval of the competent authority in which it was stated that it may not be conducive to grant an extension for the process of delimitation in the four North-Eastern States. The term of the Chairman of the Delimitation Commission constituted under the first impugned notification dated 6th march 2020 was to expire on 5th March 2021. In view of the aforesaid letter, while extending the term of the Chairman B by one more year by the second impugned notification dated 3 rd March 2021, the said four States were excluded. Thus, in effect, the term of the Delimitation Commission constituted under the notification dated 6th March 2020 was extended by a period of one year only in relation to the Union territory of J & K. By the third impugned notification, the period was further extended by a period of two months. Section 10A of the C Delimitation Act, 2002 itself permits the postponement of the exercise of delimitation in certain contingencies. Moreover, the position and the status of the newly created Union Territory of J&K under the Constitution is completely different from the four North-Eastern States. In its applicability to the Union Territory of J & K, Sections 4 and 9 of the D Delimitation Act, 2002 stand amended by requiring readjustment to be carried out on the basis of the census figures of 2011. In case of the North Eastern States, there is no such amendment. Therefore, two unequal cannot be treated as equals. Hence, the argument based on the violation of Constitutional provisions including Article 14 deserves to be rejected. E

38Copy pinpoint38. The learned counsel appearing for the petitioners did not dispute that the draft order of delimitation was issued on 14th March 2022. The final order was issued on 5th May 2022 which was brought into force with effect from 20 th May 2022. While accepting that he has not challenged these subsequent orders, the learned counsel submitted that F the petitioners cannot challenge the said order in view of sub-Section (2) of Section 10 which lays down that every such order shall have the force of law and shall not be called in question in any Court. In fact, the learned Solicitor General by relying upon a decision of the Constitution Bench in the case of Megharaj Kothari2 urged that the intention of the legislature is that once an order passed by the Delimitation Commission G is published in accordance with sub-Section (1) of Section 10, the same are treated as law, which cannot be questioned in any Court. In paragraph 21 of the said decision, the Constitution Bench held that though orders passed under Sections 8 and 9 of the Delimitation Act, 2002 in accordance with sub-Section (1) of Section 10 are not part of an act of the Parliament H

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A but its effect would be the same. In any event, the order of the Delimitation Commission has not been questioned in this petition.

39Copy pinpoint39. We may note here that there is a great deal of substance in the argument of the learned Solicitor General that the challenge to the notification dated 6th March 2020 was belatedly made by filing the present petition on 28th March 2022 and for the said delay, there is no valid explanation. Moreover, the notification dated 6th March 2020 was substantially acted upon by completing the exercise of delimitation as the draft Order was also published on 14th March 2022.

40Copy pinpoint40. In the writ petition, the first prayer is for challenging the increase in number of seats from 107 to 114. The said provision is made by sub- Section (1) of Section 60. Without challenging the legality of any of the provisions of the J&K Reorganisation Act, it is contended that the Act of increasing the number of seats is violative of Articles 81, 82, 170, 330 and 332 of the Constitution of India. Article 81 deals with the composition of the House of the People; Article 82 deals with the readjustment and allocation of seats of the House of Parliament after the census and Article 170 deals with legislatures of the States. None of these provisions deal with the Legislature of any Union territory. Article 330 deals with the reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People. Article 332 deals with the reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States. Both these provisions do not deal with reservation of seats for the House of legislature of Union Territories. In any case, even assuming that Article 332 can be applied to the reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislatures of Union territories, it is not shown how the act of increasing the total number of seats in the legislature will offend Article 332, so long as the reservation is maintained as per the formula provided under Article 332.

41Copy pinpoint41. Another argument sought to be made is that the provision made for 114 seats in the legislature of the newly constituted Union Territory of J & K is illegal. This submission calls for no consideration as there is no challenge to the validity of sub-section (1) of Section 60 of the J&K Reorganisation Act.

42Copy pinpoint42. Another argument was canvassed that the Delimitation Order of 2008 published by the Election Commission cannot be deviated from. The perusal of the said Order shows that it reproduces the delimitation H

HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 549 ORS. [ABHAY S. OKA, J.]

of the Parliamentary and Legislative Assembly Constituencies made by the Delimitation of Parliamentary and Assembly Constituencies Orders of 1976 and 1995 for the State of Jammu and Kashmir. Both the orders of 1976 and 1995 have been expressly modified by the J&K Reorganisation Act by virtue of Sections 11(4) and 14(5) as provided in the second and third Schedules thereto. Hence, the argument deserves to be rejected.

43Copy pinpoint43. The petitioners have overlooked the fact that clause (b) of sub-Section (1) of Section 62 of the J&K Reorganisation Act has further amended the Delimitation Act, 2002 by providing that words and figures ‘census held in the year 2001’ appearing in the Delimitation Act shall be construed as ‘census held in the year 2011’. To its application to the C Union territory of J & K, the year 2001 in sub-section (1) of Section 9 of the Delimitation Act, 2002 has been substituted by the year 2011 and therefore, distribution of seats in the House of the People and seats assigned to the Legislative Assembly will have to be readjusted on the basis of 2011 census and the delimitation will have to be carried out on the basis of the figures of the census held in the year 2011. The effect of Section 63 is that once the exercise of readjustment/delimitation is made on the basis of 2011 census figures, the same will be frozen till the relevant figures of the first census taken after 2026 are available. Therefore, the exercise of delimitation/readjustment of the seats in the Union Territory of J & K was required to be made by the Delimitation Commission on the basis of the figures of the 2011 census. In view of Section 63, further readjustment can be carried out only after the publication of figures from the census held after the year 2026.

44Copy pinpoint44. Reliance placed on the opinion of the learned Attorney General of India is misplaced as it deals only with the provisions of the A.P. F Reorganisation Act, 2014. The petitioners cannot rely upon the answer given by Hon’ble Minister in the Lok Sabha as it deals with delimitation of Constituencies in Telangana in the context of Article 170. In any event, the said opinion as well as the answer given by the Hon’ble Minister have no bearing on the interpretation of the J&K Reorganisation Act. G

45Copy pinpoint45. A vague attempt was made by the learned senior counsel appearing for the petitioners to submit that the exercise which is undertaken for the newly created Union territory of J & K was not undertaken on the basis of the Uttar Pradesh Reorganisation Act, 2000 and Andhra Pradesh Reorganisation Act, 2014. In both the Acts, there is H

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A no provision which is pari materia with clause (b) of sub-Section (1) of Section 62 of the J&K Reorganisation Act which amended the provisions of the Delimitation Act 2002 in its applicability to the newly formed Union Territories by substituting the year 2001 with 2011.

46Copy pinpoint46. Thus, there is absolutely no merit in any of the contentions B raised by the petitioners. We may, however, clarify that the findings rendered in the judgment are on the footing that the exercise of power made in the year 2019 under clauses (1) and (3) of Article 370 of the Constitution is valid. We are aware that the issue of the validity of the exercise of the said powers is the subject matter of petitions pending before this Court. Therefore, we have not dealt with the issue of validity. C Nothing stated in this judgment shall be construed as giving our imprimatur to the exercise of powers under clauses (1) and (3) of Article 370 of the Constitution.

47Copy pinpoint47. Hence, writ petition is dismissed with no order as to costs.

D Bibhuti Bhushan Bose Writ petition dismissed. (Assisted by : Varun Dhond, LCRA)