Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Art.243-T Intra Vires; S.9-A(5),Municipalities Act Ultra Vires; Rules 6 & 6-A Illegal & Invalid
JUDGEMENT TITLE : Heera Lal Umar And Anr. Vs. State Of U.P. On 06/02/2006 By Allahabad High Court
CASE NO : WRIT - C NO. 2247 OF 2001
CORAM : Hon'ble R.K. Agrawal,J. And Hon'ble Saroj Bala,J

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Civil Misc. Writ Petition No.2247 Of 2001
Heera Lal Umar And Another V. State Of U.P. And Others

And

Civil Misc. Writ Petition No.63611 Of 2005
Dr. Naresh Chandra V. The State Of U.P. And Another



Hon'ble R.K.Agrawal, J.
Hon'ble (Mrs.) Saroj Bala, J.

(Delivered By R.K.Agrawal, J.)

VASUDHAIVA KUTUMBAKAM, A Sukta Of One Of Our Ancient Veda - Riga Veda, Means "The Whole World Is One Family". It Is The Code Of Life That Is Embedded In Our Heart Beat, In Our Breath, In Birth, In Death, In Our Food, In Love, In The Experience Of Life And All That It Contains. It Is Always And Has Always Been True. People In Our Country Have Long Cherished Values Which, In Modern Times, Are Best Expressed Under The Rubric Of Universalism And Various Dimensions Of Democracy. Before The Colonial Intervention Of The West And The Rulers Of The Foreign Origin, The Participatory Mode Of Governance From The Grass Roots To The Top, Devolution Of Political Power At All Levels, And Cultural Plurality Were Hallmarks Of Our Social-political System. We Had Our Own Failings Such As The Obnoxious Practice Of Untouchability. Mahatma Gandhi, The Father Of Nation, Called Such Persons As "Harijan" - Son Of God. The Communitarian Principles Manifested Through The Caste System Degenerated Into Hierarchical Fundamentalism Leading To A Wide Gap Between The Members Of The Society. For A Section Of The Society All Material Resources And Posts/offices Were Available In Plenty. For Others Who Were Not So Fortunate Even One Square Meal Was Not Available. These Persons Remained Backward And Were Cut Off From The Main Stream Of The Nation's Life. After Our Country Got Independence From Foreign Rule, The Founding Fathers Of Our Constitution In The True Spirit Of Vasudhaiva Kutumbakam Like Any Parent Who Take Special Care For Any Child Who By Birth Or By Other Natural Circumstances Or Otherwise Is Not Equal To Other Children, Were Concerned For The Upliftment Of Socially Backward Classes Identified As Scheduled Castes And Scheduled Tribes And That Is Why Special Provisions For Those People Were Made In The Matter Of Membership Of State Legislature And Parliament For A Specified Period And Also In The Matter Of Public Employment. After A Passage Of Four Decades, When The Necessity Was Felt For Making Provisions For Local Self-government Both At The Village Panchayat Level And Urban Municipality, While Amending The Constitution, Specific Provision Was Made Providing For Reservation For Specified Categories Of Persons Which By Now Not Only Meant Scheduled Castes, Scheduled Tribes But Also Women And Persons Belonging To Other Socially Backward Classes Both For The Membership As Also For The Chairpersons. We Are Reminded Of The Well Known Principle Enunciated By The Famous Scientist Newton - "To Every Action There Is Always An Equal And Opposite Reaction And Action-reaction Forces Act On The Different Bodies", Commonly Known As Newton's Third Law Of Motion, Not Only Applies To The Field Of Science But Has Universal Application In Our Life Also. Here The Reaction Is By Way Of Challenge Regarding The Constitutional Validity Of The Provisions In The Constitution Enabling The State Legislature To Make Laws For Providing Reservation For The Office Of Chairpersons In Municipalities For Persons Belonging To Scheduled Castes, Scheduled Tribes, Women And Other Socially Backward Classes. Whether It Is Within The Framework Of The Constitution And Is Permissible Or Not, Is The Question On Which Thought Provoking Arguments Have Been Advanced In The Present Two Writ Petitions.
In Civil Misc. Writ Petition No.2247 Of 2001 The Two Petitioners, Heera Lal Umar And Bhikhari Lal, Who Are Residents Of Town Gola Bazar, District Gorakhpur, Have Challenged The Provisions Of Clauses (4) And (6) Of Article 243-T Of The Constitution Of India, As Inserted By The Constitution (Seventy-fourth Amendment) Act, 1992 (hereinafter Referred To As "the Constitution Amendment Act"), In Part IX-A Of The Constitution Of India, As Unconstitutional. It May Be Mentioned Here That The Whole Of Part IX-A Was Inserted By The Aforementioned Constitution Amendment Act. They Have Also Challenged The Validity Of The Provisions Of Section 9-A(5) Of The U.P. Municipalities Act, 1916 (hereinafter Referred To As "the Act") And The U.P. Municipality (Reservation And Allotment Of Seats And Offices) Rules, 1994 (hereinafter Referred To As "the Rules") As Amended From Time To Time And To Declare Them As Ultra Vires. Apart From The Aforesaid Challenge, The Petitioners Have Also Sought For Quashing Of The Notification Dated 24.10.2000 And The Subsequent Election Of The President In Respect Of The Nagar Panchayat, Gola Bazar, District Gorakhpur With A Further Direction To The Secretary, Nagar Vikas, Government Of Uttar Pradesh, Respondent No.1, To Conduct Fresh Election Of The President, Nagar Panchayat, Gola Bazar, District Gorakhpur, According To The Provisions Of The Amended Rules Whereas In Civil Misc. Writ Petition No.63611 Of 2005 Which Has Been Filed By Dr. Naresh Chandra Who Claims Himself To Be The President, Nagar Palika Parishad, Mawana, District Meerut, The Provision Of Section 9-A(5) Of The Act Is Sought To Be Declared As Invalid In Law And Also For Quashing The Rules. He Has Further Sought A Writ In The Nature Of Mandamus Directing The Principal Secretary, Local Body, U.P., Lucknow, Respondent No.1, Not To Reserve The Post Of The President In The Coming Election Of The Nagar Palika Parishad And Treat It As A General Seat So That The Candidates Of All Categories May Contest The Election And The Citizens Also Have A Better Choice Of Electing A Better Candidate. In This Petition, Dr. Naresh Chandra Has Not Challenged The Validity Of Clauses (4) And (6) Of Article 243-T Of The Constitution Of India.
Briefly Stated, The Facts Giving Rise To Both The Petitions Are As Follows:-
Facts :
Civil Misc. Writ Petition No.2247 Of 2001 :
The Two Petitioners Claim To Be The Office Bearers Of A National Political Party, Namely, The Bhartiya Janta Party. Whereas The Petitioner No.1 Was Nominated By The Said Party As Its Candidate For The Post Of The President, Nagar Panchayat, Gola Bazar, District Gorakhpur, Which Was To Be Held In The Year 2000, The Petitioner No.2 Claims Himself To Be The President, Nagar Mandal Of The Said Party. According To Them, The Government Of Uttar Pradesh, Vide Notification Dated 28.9.2000 Published A Lit Of The Offices Of The President Of The Nagar Panchayats In The State Applying Reservation To Various Categories According To The Rules As Amended By The U.P. Municipalities (Reservation And Allotment Of Seats And Offices) (Fifth Amendment) Rules, 2000. On The Basis Of The Aforementioned Notification, The District Magistrate, Gorakhpur, Respondent No.2, Notified A List On 4.10.2000 Of The President Of The Nagar Panchayats In Gorakhpur In Which The Office Of The President, Gola Bazar, Was Shown As Unreserved. He Invited Objections To The Aforesaid List Within Seven Days. According To The Petitioners, In View Of The Amended Rules, The Nagar Panchayats Were Arranged Firstly In The Increasing Percentage Of Population Of Scheduled Caste And Thereafter In The Increasing Percentage Of Population Of Scheduled Tribe And Then In The Increasing Percentage Of Population Of Other Backward Classes Upto The Number Of Seats Reserved For Them And Lastly In The Increasing Population. The Nagar Panchayat, Gola Bazar, Gorakhpur, Was Put At Serial No.306 And Was Shown As Unreserved. The Petitioners Claim That No Body Had Filed Any Objection To The Notification Dated 4.10.2000 Within The Time Or Even After The Expiry Of Seven Days' Period, Either Before The District Magistrate, Gorakhpur Or Before The State Government. After 11.10.2000 Political Activities Started And Various Candidates Made Up Their Mind To Contest The Election. The Petitioner No.1 Having Been Nominated By The Bhartiya Janta Party As Its Candidate For The Office Of The President, Nagar Panchayat, Gola Bazar, Gorakhpur, Started His Election Campaign. However, The Final Notification For Election Was Published On 24.10.2000 In Which The Nagar Panchayat, Gola Bazar Was Put At Serial No.64 (from Serial No.306) And Has Been Reserved For Woman (backward) On The Basis Of Which Election For The Office Of The President, Nagar Panchayat, Gola Bazar, Had Been Held. According To The Petitioners, They Filed Representation Dated 30.10.2000/8.11.2000 Before The State Election Commission, U.P., And Also A Representation Was Sent To The Chief Minister, Government Of Uttar Pradesh, Through Fax On 30.10.2000. The Petitioners Claim To Have Made Another Representation Before The State Election Commission, Uttar Pradesh, On 20.12.2000 And Also Personally Met The State Election Commissioner On 4.1.2001, Whereupon He Was Informed That The State Election Commission Has Nothing To Do With The Notice Dated 4.10.2000 And The Elections Are To Be Conducted On The Said Basis. Thereafter, The Petitioners Made A Representation On 10.1.2001 Before The Secretary, Nagar Vikas, Government Of Uttar Pradesh, Respondent No.1, Through Fax But Without Any Response, Whereafter The Petitioners Have Invoked The Extra Ordinary Jurisdiction Of This Court Under Article 226 Of The Constitution Of India By Challenging The Vires Of The Provisions Of The Constitution Amendment Act, The Act And The Rules Mentioned Hereinabove. They Have Also Challenged The Alleged Arbitrary Action Of The State Government In Reserving The Office Of The President, Nagar Panchayat, Gola Bazar, Gorakhpur For Woman (backward) Instead Of The General/unreserved, As Proposed.
Civil Misc. Writ Petition No.6364 Of 2005 :
In Civil Misc. Writ Petition No.6364 Of 2005, Filed By Dr. Naresh Chandra, Who Claims To Be A Renowned Surgeon Of Mawana, District Meerut Had Been Elected As The President Of The Nagar Panchayat Parishad, Mawana, In The Election Held In The Year 2000, Which Office, At That Time, Was Not Reserved For Any Of The Specified Categories. He Has Approached This Court On The Ground That The Respondents Are Bent Upon To Declare The Schedule Of Reservation For The Post Of The Presidents Of The Nagar Panchayat Parishads And To Hold The Election Thereafter On The Basis Of Such Reservation. According To The Petitioner, The Post Of The President Of The Nagar Panchayat Parishad Is A Single Unit Post And No Reservation On Such Post Can Be Made.
We Have Hard Sri Kunal Ravi Singh, Learned Counsel, And Sri V.K.S.Chaudhary, Learned Senior Counsel, In The Writ Petition Filed By Heera Lal Umar; Sri Ravi Kiran Jain, Learned Senior Counsel, Assisted By Sri Ajai Rajendra, Advocate, On Behalf Of The Petitioner In The Writ Petition Filed By Dr. Naresh Chandra; Sri S.M.A.Kazmi, Learned Additional Advocate General, Assisted By Sri S.P.Kesarwani, Standing Counsel, On Behalf Of The State Of U.P. And Other State Respondents And Sri Devi Shanker Shukla, Learned Standing Counsel, Appearing For The Union Of India.
Rival Submissions :
Sri V.K.S.Chaudhary, Learned Senior Counsel, Submitted That The Democracy Is The Basic Feature Of The Constitution Of India. By Clauses (4) And (6) Of Article 243-T Of The Constitution Of India, Which Have Been Inserted By The Constitution Amendment Act, The Right To Contest The Election On The Post Of The President Of The Nagar Panchayat, Which Is A Part Of The Democracy, Is Sought To Be Taken Away By Excluding Person Other Than The Persons Belonging To The Specified Categories, To Contest And Hold The Office Of The President. He Submitted That The Insertion Of Clauses (4) And (6) Of Article 243-T In The Constitution Of India, Therefore, Contravenes The Provisions Of Article 368 Of The Constitution Of India. In This Connection, He Invited The Attention Of The Court To The Provision Of Section 13-C Of The Act, Which Lays Down The Qualification For Election Of A Member. According To Him, A Person Who Is An Elector For Any Ward In The Municipality, Can Seek Election As A Corporator In The Said Municipality From Any Ward And It Is Not Necessarily Confined To That Ward From Where He Is An Elector. Under Section 43-AA Of The Act, Qualification For The Presidentship Of A Municipality Has Been Given. It Also Specifies That A Person To Be Chosen As A President Of A Municipality Should Be An Elector For Any Ward In The Municipal Area. He, Thus, Submitted That For Holding The Post Of The President Of A Municipality, The Only Requirement Is That The Person Should Be An Elector From Any Ward In The Municipal Area. By Virtue Of The Provisions Of Clauses (4) And (6) Of Article 243-T Of The Constitution Of India, The State Of U.P. Has Amended Section 9-A Of The Act By The U.P.Act Nos.XII Of 1994 And XXVI Of 1995, Whereby Under Sub-section (5), The Office Of The President And The Vice-President Of A Municipality In The State Have Been Reserved For The Scheduled Caste, The Scheduled Tribe, The Backward Class And The Women, To Be Prescribed By The Rules, Thus, Depriving The Petitioners From Contesting For The Post Of The President Of The Municipality. He Further Submitted That Unlike The Provisions Of Articles 84 And 173 Of The Constitution Of India, Which Provides For Qualification For Membership Of The Parliament/State Legislature, Whereunder A Citizen Of India Is Free To Contest From Any Constituency Throughout The Country/State, Except The Reserved Constituency For Becoming A Member Of The Parliament/State Legislature, A Person Cannot Contest The Election For The Presidentship Of A Municipality Unless He Is An Elector In Any Ward Of The Said Municipal Area.
Sri Chaudhary Submitted That Clause (4) Of Article 243-T Of The Constitution Of India In So Far As It Makes The Provision For Reservation In The Office Of The President In Municipalities, Is Violative Of The Basic Structure Of The Constitution Of India. According To Him, Equality Before The Law Is A Part Of The Basic Structure Of The Constitution. Reservation, Except As Provided Under Article 16(4) Of The Constitution, Runs Counter To This Basic Structure. The Parliament Was, Thus, Not Empowered Under Article 368 Of The Constitution Of India To Amend And Insert Such A Provision In The Constitution And, Therefore, Insertion Of Clauses (4) And (6) Of Article 243-T Of The Constitution Of India Contravenes Article 368 Of The Constitution Of India. According To Him, Equality Before The Law As Provided Under Articles 14 And 15 Of The Constitution Of India Are Basic Structure Of The Constitution. Article 15(4) Which Was Added Later, Does Not Speak About Reservation, As Does Article 16(4) Of The Constitution Of India. According To Him, In The Case Of Socially And Educationally Backward Classes, There Is No Other Question But To Improve Them In Respect Of Social Status And Education. This Matter Calls For Positive Action For Improvement In Their Social Life And Learning. This Is The Object. The Special Provision Spoken Of Must Be Something Other Than Reservation, Some Constructive And Affirmative Action For These Classes For Removal Of Deficiency And For Their Upliftment.
Sri Chaudhary Further Submitted That Even If Clauses (4) And (6) Of Article 243-T Of The Constitution Of India, Without Conceding Are Assumed To Be Valid, The Reservation Has To Be Provided By The Legislature Of A State And Not By The State Government Which Is The Rule Making Body Under The Act. According To Him, The Provisions Of Sub-section (5) Of Section 9-A Of The Act Suffers From The Vice Of Excessive Delegation Inasmuch As The State Legislature Has Abdicated Its Essential Legislative Function Without Laying Down The Policy And Percentage Of Reservation For The Scheduled Caste, The Scheduled Tribe, The Backward Class And The Women For The Office Of The President And The Vice-President Of The Municipality In The State Of U.P.
He Also Submitted That It Is Well Settled By The Apex Court In A Catena Of Decisions That A Single Post/office Cannot Be Reserved And The Post/office Of The President Of A Municipality Being A Single Post, Could Not, Therefore, Be Reserved And The Provisions Empowering Reservation On Such A Single Post Is Wholly Illegal And Unconstitutional.
Sri Chaudhary Further Submitted That The Provisions Of Clauses (4) And (6) Of Article 243-T Of The Constitution Of India Cannot Also Be Saved By Taking Recourse To The Provisions Of Clause (4) Of Article 15 And Clause (4) Of Article 16 Of The Constitution Of India, As Both These Provisions Operate In Different Field.
Sri Chaudhary Further Submitted That In Order To Implement Reservation Policy, There Must Be Some Reasonable Nexus With The Object Sought To Be Achieved. Nexus Behind Reservation In Public Employment Is To Provide Job To Those Persons Who Due To Their Social And Economic Backwardness May Not Get The Jobs. Reservation In Election Without Ascertaining That A Particular Class Is Not Represented In The Ratio Of Its Population Is Illegal And Without Jurisdiction.
So Far As Challenge To The Merits Of The Notification Dated 4.10.2000 Issued By The State Of U.P. Is Concerned, He Submitted That In The Notification Dated 28.9.2000 Gola Bazar Was Mentioned At Serial No.306 And Was Proposed To Be Unreserved For The Election To Be Held In The Year 2000. It Was Reserved For The Other Backward Class In The Election Held In The Year 1995. However, Without There Being Any Objection, The Government Of Uttar Pradesh, Vide Notification Issued On 24.10.2000 By Which At Serial No.64 Against Gola Bazar The Office Of The President Has Been Reserved For The Backward Class (woman). He Further Invited The Attention Of The Court To Page 24A Of The Paper Book, Which Is Part Of Annexure 1 To The Writ Petition, And Submitted That The State Government Has Reserved The Office Of The President Of The Nagar Panchayat, Gola Bazar, For The Backward Class And Not For The Backward Class (woman), Which Establishes That Some Forgery Has Been Done.
In Support Of His Various Pleas, He Has Relied Upon The Following Decisions:-
1. His Holiness Kesavananda Bharati Sripadagalvaru And Others V. State Of Kerala And Another, AIR 1973 SC 1461 = (1973) 4 SCC 225;
2. Dr. Chakradhar Paswan V. State Of Bihar And Others, (1988) 2 SCC 214;
3. S.R.Bommai And Others V. Union Of India And Others, (1994) 3 SCC 1;
4. Post Graduate Institute Of Medical Education And Research, Chandigarh V. Faculty Association And Others, (1998) 4 SCC 1;
5. Rasik Auto Stores And Others V. Navin V. Hantodkar And Another, (1998) 8 SCC 176;
6. Indira Sawhney (II Case) V. Union Of India And Others, (2000) 1 SCC 168; And
7. Bidhya Charan Singha V. State Of W.B., AIR 2004 Calcutta 27.

Sri Ravi Kiran Jain, Learned Senior Counsel, Submitted That Under Entry 5 Of List II Of The Seventh Schedule, The State Legislature Is Competent To Enact Laws Relating To Local Self-government. Any Law To Be Enacted By The State Legislature Is Subject To The Provision Of The Constitution Of India As Provided Under Article 245. According To Him, The Mandate Of The Constitution By Clauses (4) And (6) Of Article 243-T Is That The State Legislature Has To Provide For Reservation Of The Office Of The President In The Municipality For The Scheduled Caste, The Scheduled Tribe, And The Women As Also For The Other Backward Class Of Citizens. The Mandate Being Positive And Clear, The State Legislature By Inserting Sub-section (5) Of Section 9-A In The Act, Has Failed To Make Any Provision For Reservation For The Abovementioned Categories And Instead Has Abdicated Its Essential Legislative Function In Favour Of The Rule Making Authority, I.e., The Government Of Uttar Pradesh, Which, Under Law, Could Not Have Been Done. He Submitted That The Provisions Of Sub-sections (1), (3), (4) And (6) Of Section 9-A Of The Act Are Verbatim Reproduction Of The Provisions Of Clauses (1), (2), (3) And (5) Of Article 243-T Of The Constitution Of India Except That The Words "backward Classes" Have Been Incorporated In Sub-sections (1), (3), (4) And (6) Of Section 9-A Of The Act Alongwith The Words "Scheduled Caste And Scheduled Tribe". The Parliament While Empowering The State Legislature By Providing Reservation For The Office Of The President Of Municipality In Favour Of The Scheduled Caste, The Scheduled Tribe, The Women And The Backward Class Has Left The Percentage And The Number Of Seats In Respect Of Each Category At The Discretion Of The State Legislature And That Is Why It Has Not Fixed The Maximum Limit Of 1/3rd Or Any Other Limit As Provided For Number Of Seats In Every Municipality Mentioned In Clauses (1), (2) And (3) Of Article 243-T Of The Constitution Of India. He, Thus, Submitted That The State Legislature Could Have Provided For Reservation Of The Office Of The President Of Municipality But Could Not Have Left It To The Rule Making Authority To Do So. Thus, The Reservation For The Post Of The President In Municipality Which Has Been Done Under The Rules Is Wholly Illegal And Unconstitutional. In Support Of His Various Pleas, He Has Relied Upon The Following Decisions:-
1. Hamdard Dawakhana And Another V. The Union Of India And Others, AIR 1960 SC 554;
2. M/s Jalan Trading Co. Pvt. Ltd. V. Mill Mazdoor Sabha, AIR 1967 SC 691;
3. New Manek Chowk Spg. And Wvg. Mills Co. Ltd. V. Municipal Corporation Of The City Of Ahmedabad And Others, AIR 1967 SC 1801;
4. M/s Devi Das Gopal Krishnan V. State Of Punjab And Others, AIR 1967 SC 1895;
5. The Municipal Corporation Of Delhi V. Birla Cotton, Spinning And Weaving Mills, Delhi And Another, AIR 1968 SC 1232; And
6. Krishna Mohan (P) Ltd. V. Municipal Corporation Of Delhi And Others, AIR 2003 SC 2935 = (2003) 7 SCC 151.

Sri Devi Shanker Shukla, Learned Standing Counsel Appearing For The Union Of India, Submitted That Part IX-A Has Been Inserted In The Constitution Of India By The Constitution Amendment Act. The Aims And Objects Of Inserting The Said Part Was For Strengthening The Urban Local Bodies As It Had Come To The Notice Of The Government Of India That In Many States Urban Local Bodies Had Become Weak And Ineffective For Various Reasons Including Failure To Hold Regular Elections, Prolonged Suppression And Inadequate Devolution Of Powers And Functions With The Result That The Urban Local Bodies Were Unable To Perform Effectively As A Vibrant Democratic Unit Of Local Self-government. Having Regard To These Inadequacies, It Was Considered Necessary That The Provisions Relating To The Urban Local Bodies Be Incorporated In The Constitution Itself, Partly For Putting On A Firmer Footing, The Relationship Between The State Government And The Urban Local Bodies With Respect To The Functions And Taxing Powers, Area For Revenue Sharing, Ensuring Regular Conduct Of Elections, Ensuring Timely Elections In Case Of Supersession And Providing Adequate Representation For The Weaker Sections, Like, The Scheduled Caste, The Scheduled Tribe And The Women. According To Him, The Constitution Can Be Amended By The Parliament In Exercise Of Its Power Under Article 368. Relying Upon Clause (4) Of Article 368 Of The Constitution Of India, He Submitted That The Provisions Of Article 13 Has No Application To Any Amendment Made In The Constitution Itself And, Therefore, The Constitution Amendment Act Cannot Be Challenged For Violation Of The Fundamental Rights Guaranteed Under Part III.
According To Him, Special Provision In The Form Of Reservation Can Be Made For Advancing Any Socially And Educationally Backward Class Of Citizens And For The Scheduled Caste And The Scheduled Tribe And There Is No Limit To The Extent Of Reservation Under Clause (4) Of Article 15. The Provisions Of Clause (4) Of Article 15 And Clause (4) Of Article 16 Of The Constitution Of India Have To Be Read Harmoniously. According To Him, The Concept Of Reservation On A Single Post Under The Service Jurisprudence Is Not Applicable In The Case Of Reservation Of The Office Of The President Of Municipality. The Office Of The President Of Municipality Is Neither An Employment Nor Appointment Within The Meaning Of Article 16 Of The Constitution Of India As There Is No Employer And Employee Relationship. No Person Is Appointed As The President Of A Municipality But, On The Contrary, He Is Elected To The Office. The Concept Of Single Cadre Post As Applicable To Service Jurisprudence Has No Application To A Democratic Office Which Is Filled By Way Of Election And Hence The Principle Of 100% Reservation Would Not Be Applicable. He Further Submitted That The View Taken By The Patna High Court In The Case Of Krishna Kumar Misra And Another Etc. Etc. V. State Of Bihar And Others, AIR 1996 Patna 112 And The Calcutta High Court In The Case Of Bidhya Charan Singha (supra) Do Not Lay Down The Correct Law As They Have Not Taken Into Consideration The Scope Of Article 13(4) And Article 368(3) Of The Constitution Of India Nor They Have Considered The Question As To Whether The Office Of The President Is An Appointment Or Employment Under The State. In Support Of His Aforesaid Pleas, He Has Relied Upon The Following Decisions:-
1. In Re Art.143, Constitution Of India And Delhi Laws Act (1912) Etc., AIR 1951 SC 332;
2. C.K.Achutan V. The State Of Kerala And Others, AIR 1959 SC 490;
3. Champaklal Chimanlal Shah V. The Union Of India, AIR 1964 SC 1854;
4. Sajjan Singh And Others. V. The State Of Rajasthan And Others, AIR 1965 SC 845;
5. L.C. Golaknath And Others V. State Of Punjab And Others, AIR 1967 SC 1643;
6. A.V.S. Narsimha Rao And Others V. The State Of Andhra Pradesh And Another, AIR 1970 SC 422;
7. His Holiness Kesavananda Bharati Sripadagalvaru And Others V. State Of Kerala And Another, AIR 1973 SC 1461;
8. State Of Maharashtra V. Chandrabhan, AIR 1983 SC 803;
9. Toguru Sudhakar Reddy And Another V. The Govt. Of Andhra Pradesh And Others, AIR 1994 SC 544;
10. Govt. Of Andhra Pradesh V. P.B.Vijaykumar And Another, AIR 1995 SC 1648;
11. Sanjoy Bhattacharjee V. Union Of India And Others, (1997) 4 SCC 283;
12. Ajit Singh (II) V. State Of Punjab And Others, (1999) 7 SCC 209;

Sri S.M.A.Kazmi, Learned Additional Advocate General, Raised A Preliminary Point Regarding Maintainability Of The Writ Petitions. He Submitted That The Cause Of Action To The Petitioners In Civil Misc. Writ Petition No.2247 Of 2001 Does Not Survive As The Term Of The President, Nagar Panchayat, Gola Bazar, Gorakhpur Had Expired. He Further Submitted That In Respect Of The Ensuing Election, Reservation To Various Post Of The President In The Municipalities Is Yet To Be Made And, Therefore, The Petitioner In Civil Misc. Writ Petition No.63611 Of 2005 Also Do Not Have Any Cause Of Action Either To Challenge The Constitutional Validity Of Clauses (4) And (6) Of Article 243-T Of The Constitution Of India Or The Provisions Of Sub-section (5) Of Section 9-A Of The Act And The Rules, In Support Whereof He Has Relied Upon The Following Two Decisions :-
1. M/s Bharat Coking Ltd. And Another V. Sanjeev Coke Manufacturing Company, AIR 1983 SC 239; And
2. Basant Kumar V. State Of Rajasthan And Others, (2001) 7 SCC 201.

On Merits, He Submitted That The Parliament Has Incorporated Clauses (4) And (6) Of Article 243-T In The Constitution Of India To Promote The Welfare Of The People By Securing And Protecting A Social Order In Which Social, Economical And Political Justice Is Available In All The Institutions Of The National Life And Further To Minimize The Inequalities In Status, Facilities And Opportunities Amongst Individuals Residing In Different Areas And Engaged In Different Vocations, As Provided Under Article 38 Of The Constitution Of India, Which Forms Part Of Part IV Being The Directive Principles Of State Policy. It Is To Give Effect To A Social Order For The Promotion Of The Welfare Of The People And Any Amendment Made In The Constitution With An Object To Promote Or To Incorporate The Directive Principles Of State Policy, Cannot, By Any Stretch Of Imagination, Be Held To Be Unconstitutional Or Destructive Of The Basic Feature Of Our Constitution. According To Him, The Right To Contest Any Election Is Not A Fundamental Right. It Has To Be Conferred By A Statute. Likewise, The Right, If Any, To Contest For The Office Of The President Of A Municipality Is Not A Fundamental Right. It Is Only A Statutory Right. If The Parliament In Its Wisdom Has Taken Away The Right Of A Particular Class Of Person To Contest For The Membership Of The Municipality Or For The Office Of The President Of A Municipality, The Person So Aggrieved Cannot Complain Of Any Breach Of His Fundamental Right. Further, The Right To Contest For The Office Of The President Has Not Been Abrogated But Has Only Been Abridged Inasmuch As In View Of Clause (5) Of Article 243-T, Reservation Provided Under Clauses (1), (2) And (4) Shall Cease To Have Effect On Expiration Of The Period Specified In Article 334 Which At Present Provides For A Period Of Sixty Years From The Commencement Of The Constitution. According To Him, As Under Clause (4) Of Article 15 Of The Constitution Of India, The States Have Been Empowered To Make Special Provision For The Advancement Of Any Socially And Educationally Backward Classes Of Citizens, The Scheduled Caste And The Scheduled Tribe As Also Clause (3) Of Article 15 Empowers The State For Making Special Provision For Women And Children, The Provision Of Clauses (4) And (6) Of Article 243-T Of The Constitution Of India Is Not A Negation Of Any Fundamental Right. In Fact, It Serves The Objective Provided In Article 38 Of The Constitution Of India. According To Him, The Spirit For Making The Special Provision For Women, Children, Socially And Educationally Backward Classes Of Citizens, The Scheduled Caste, And The Scheduled Tribe Has Been Enshrined In Our Constitution Under Articles 15 And 16 And, Therefore, The Provisions Of Clauses (4) And (6) Of Article 243-T Of The Constitution Of India Cannot Be Said To Have Altered The Basic Structure Of The Constitution. On The Other Hand, It Is A Step In The Right Direction For Advancement Of The Have-not And Oppressed Citizens. It Gives Them A Chance To Hold The Office Of The President Of A Municipality And, Therefore, Is A Step Towards Removal Of Inequalities.
Sri Kazmi Further Submitted That There Is A Presumption Regarding Constitutionality Of Legislation And Heavy Burden Lies Upon The Petitioners To Prove Unconstitutionality Of The Act Which The Petitioners Have Failed To Discharge In The Present Case.
So Far As The Question Regarding 100% Reservation On A Single Post Is Concerned, He Submitted That The Principle Applicable In Service Jurisprudence Regarding Non-reservation On A Single Post Would Not Be Applicable In Respect Of Election To Be Held For The Post Of President Of A Municipality. According To Him, The Parliament Itself Has Taken Care Of Such A Situation While Providing That The State Legislature Can Make Laws For The Scheduled Caste, The Scheduled Tribe, The Women, Backward Classes Of Citizens For The Office Of The President In The Municipalities. The Words "Presidents In Municipalities" Have Been Used In A Plural Sense Meaning Thereby That All The Municipalities In The State Have To Be Taken As A Body For Providing Reservation On The Post Of The President. Such A Provision Has Not Been Made In Respect Of Appointment/employment Under The Service Law And, Therefore, The Decisions Relied Upon By The Learned Counsel For The Petitioners Regarding Reservation On A Single Post Which All Are Under The Service Jurisprudence, Would Not Be Applicable.
He Further Submitted That The State Legislature While Substituting Section 9-A Of The Act By The U.P.Act No.XII Of 1994 And After Amendment By The U.P.Act No.XXVI Of 1995 Has, By Sub-section (5), Treated All The Municipalities As A Group For The Purposes Of Reserving The Office Of The Presidents And Vice-Presidents Of Municipalities In Favour Of The Specified Categories Of Persons. He, Thus, Submitted That The Provision Of Sub-section (5) Of Section 9-A Of The Act Is A Valid Piece Of Legislation.
Coming To The Submission Advanced By The Learned Counsel For The Petitioners That The State Legislature Has Abdicated Its Essential Legislative Function By Authorizing The Rule Making Authority To Provide The Manner Of Reservation Of The Office Of The Presidents And Vice-Presidents In Municipalities In The State In Favour Of Specified Categories Of Person, He Submitted That Under Clauses (4) And (6) Of Article 243-T Of The Constitution Of India The Parliament Had Empowered The State Legislature To Provide Reservation By Law. Law, According To Him, Not Only Comprises An Ordinance Promulgated By The Governor Or An Act Passed By The State Legislature But Also Encompasses Within Its Ambit The Rules Made Under The Statutory Provision, Regulations, Bye-laws, Notifications And The Orders Issued By The Executive. He, Thus, Submitted That If Under Sub-section (5) Of Section 9-A Of The Act The State Legislature Has Empowered The Rule Making Authority To Provide For Reservation, It Cannot Be Faulted. The Necessary Guidelines Are Available Under Section 9-A Of The Act Itself Which Provides For Reservation Of Seats. The Object Of Reservation Can Be Gathered From The Provisions Of Article 243-T Of The Constitution Of India And Section 9-A Of The Act. The Basic Reservation Policy Has Been Enacted By The State Legislature Which Is Reflected Under Section 9-A Of The Act And Other Matters Are Only Ancillary. He Also Pressed Into Aid The Provision Of Articles 73 And 162 Of The Constitution Of India Which Provides That The Executive Power Of The Union And The State Respectively Shall Extend To All Matters With Respect To Which The Parliament/State Legislature Has The Power To Make Laws. In This View Of The Matter Also, Sri Kazmi Submitted That The Provisions Of Sub-section (5) Of Section 9-A And The Rules Are Valid Piece Of Legislation And The Reservations Have Been Made Accordingly.
He Also Referred To The Provisions Of Article 243ZA And 243ZF Of The Constitution Of India Which Provides That The Legislature Of A State May, By Law, Make Provision With Respect To All Matters Relating To Or In Connection With Election To The Municipalities Or For Continuance Of Existing Laws And Municipalities For A Period Of One Year From The Commencement Of The Constitution Amendment Act Unless Earlier Amended Or Repealed By The Competent Legislature.
In Support Of His Various Pleas, He Has Relied Upon The Following Decisions:-
1. Rai Sahib Ram Jawaya, Kanpur And Others V. State Of Punjab, AIR 1955 SC 549;
2. Sri Ram Krishna Dalmiya Etc. V. Sri Justice S.R. Chandolkar And Others, AIR 1958 SC 538;
3. M/s Tata Iron And Steel Co. Ltd. V. Workmen Of M/s Tata Iron And Steel Co. Ltd. And Others, AIR 1972 SC 1917;
4. His Holiness Kesavananda Bharati Sripadagalvaru And Others V. State Of Kerala And Another, AIR 1973 SC 1461;
5. Smt. Indira Nehru Gandhi V. Sri Raj Narain, AIR 1975 SC 2299 = 1975 Supp. SCC 1;
6. The Superintendent And Remembrancer Of Legal Affairs, West Bengal V. Girish Kumar Navalakha And Others, (1975) 4 SCC 754;
7. The State Of Madhya Pradesh V. Ramcharan, AIR 1977 MP 68;
8. The Registrar Of Cooperatife Societies And Another V. K.Kunjabmu And Others, AIR 1980 SC 350;
9. Waman Rao And Others V. Union Of India And Others, (1981) 2 SCC 362 = AIR 1981 SC 271;
10. Sanjeev Coke Manufacturing Company V. M/s Bharat Coking Ltd. And Another, AIR 1983 SC 239;
11. Balasinor Nagrik Cooperative Bank Ltd. V. Babubhai Shankerlal Pandya And Others, AIR 1987 SC 849;
12. Indira Sawhney Etc. Etc. (I Case) V. Union Of India And Others, AIR 1993 SC 477;
13. Krishna Kumar Misra And Another Etc. Etc. V. State Of Bihar And Others, AIR 1996 Patna 112;
14. State Of Bihar V. Bihar Distillery Ltd., AIR 1997 SC 1511;
15. Saraswati Devi V. Shanti Devi (Smt.) And Others, (1997) 1 SCC 122;
16. Agricultural Market Committee V. Shalimar Chemical Works Ltd., (1997) 5 SCC 516 = AIR 1997 SC 2502;
17. Kasambhai F. Ghanchi V. Chandubhai D. Rajput And Others, AIR 1998 SC 815;
18. Union Of India V. Elphin Stone Spinning And Weaving Co. Ltd. And Others, AIR 2001 SC 724;
19. Basant Kumar V. State Of Rajasthan And Others, (2001) 7 SCC 201;
20. In Special Reference No.1 Of 2002, AIR 2003 SC 87; And
21. Bidhya Charan Singha V. State Of W.B. And Others, AIR 2004 Calcutta 27.

Sri Kazmi Further Submitted That The Controversy Raised Before The Patna High Court And The Calcutta High Court Was Entirely Different. He Submitted That A Full Bench Of The Andhra Pradesh High Court In The Case Of Prakarsham District Sarpanchas Association V. Government Of Andhra Pradesh, Panchayat Raj Department, 2001 ALT -1-138, Has Upheld The Validity Of Clause (6) Of Article 243-D Of The Constitution Of India. He Also Referred To A Division Bench Decision Of Lucknow Bench Of This Court In Civil Misc. Writ Petition No.3963 (M/B) Of 2005, Krishna Dutt Mishra And Another V. State Of U.P. And Others, Decided On 18.7.2005, Wherein This Court Has Upheld The Validity Of The Provisions Of The Third Proviso To Section 11-A(2) And The Second Proviso To Section 12(5)(a) Of The U.P.Panchayat Raj Act, 1948 And Other Allied Provisions Of The U.P. Kshettra Panchayats And Zila Panchayats Adhiniyam, 1961
Sri Kunal Ravi Singh, In Reply Submitted That Under Clauses (4) And (6) Of Article 243-T Of The Constitution Of India, The Parliament Has Mandated The State Legislature To Make Laws For Providing Reservation For The Offices Of The Presidents Of Municipalities For Specified Categories Of Persons. The Mandate Being Clear Upon The State Legislature To Make Law, It Could Not Have Provided For The Rule Making Authority To Provide For Reservation For Carrying Out The Purpose Of Clauses (4) And (6) Of Article 243-T Of The Constitution Of India. In Effect, He Referred To The Maxim "Delegatus Non Potest Delegare" Which Means That A Delegatee Cannot Sub Delegate Its Power. He Further Submitted That The Provisions Of Sub-section (5) Of Section 9-A Of The Act Gives Uncanalised And Unguided Powers To The Rule Making Authority For Providing Reservation. According To Him, The State Legislature In Sub-section (5) Of Section 9-A Of The Act Has Neither Laid Down The Policy Nor The Maximum Percentage Of Each Category Of Specified Persons For Whom The Reservation Has To Be Made For The Offices Of The Presidents And Vice-Presidents Of Municipalities. Such A Delegation Is Not Permissible. According To Him, The Powers Can Be Delegated But Essential Legislative Function Cannot Be Delegated At All. In The Present Case The State Legislature Has Delegated The Essential Legislative Function.
He Has Further Submitted That A Single Post Cannot Be Reserved And The Directive Principle Of State Policy Is Only A Guiding Factor. It Cannot Be Taken Recourse To For Destroying The Basic Features Of The Constitution. The Right To Contest Election Is A Statutory Right Which Flows From The Representation Of Peoples Act, Which Is A Parliamentary Enactment And Cannot Be Set At Naught By Making Reservation On The Office Of President Of A Municipality.
According To Him, Clauses (3) And (4) Of Article 15 And Clause (4) Of Article 16 Had Empowered The State To Make Laws For The Upliftment Of Certain Categories Of Persons But It Does Not Mean That While Uplifting Them, They Should Be Converted Into Majority, I.e., More Than 50%. In The Present Case, As The Office Of The President In A Municipality Is A Single Post, It Cannot Be Reserved At All. Thus, The Petitioners Are Entitled For The Reliefs Claimed.
In Support Of His Aforesaid Pleas, He Has Referred To The Following Decisions:-
1. Mangulal Chunnilal V. Manilal Maganlal And Another, AIR 1968 SC 822;
2. Krishna Kumar Misra And Another Etc. Etc. V. State Of Bihar And Others, AIR 1996 Patna 112;
3. Agricultural Market Committee V. Shalimar Chemical Works Ltd., AIR 1997 SC 2502 = (1997) 5 SCC 516;
4. Post Graduate Institute Of Medical Education And Research, Chandigarh V. Faculty Association And Others, (1998) 4 SCC 1;
5. S.R.Murthy V. State Of Karnataka And Others, (1999) 8 SCC 176;
6. Anand Narain Singh V. U.P.Secondary Education Services Selection Board, Allahabad And Others, 2004 ALJ 1211; And
7. State Of Rajasthan And Others V. Basant Nahata, JT 2005(8) SC 171.

Discussion :
Prelimianry Objection Regarding Maintainability Of The Petitions :
Taking Up The Preliminary Objection Raised By Sri S.M.A.Kazmi, Learned Additional Advocate General, Regarding Maintainability Of The Writ Petition First, We Find That Civil Misc. Writ Petition No.2247 Of 2001, Preferred By Heera Lal Umar And Another, Was Presented Before The Registry On 17.1.2001. It Came Up Before The Court On 19.1.2001 When The Court Was Pleased To Issue Notices To The Attorney General Of India And The Advocate General Of The State Of U.P., Returnable After Eight Weeks. Notices Were Also Issued To Other Respondents Also. At That Time, The Elections For The Post Of The President Of The Nagar Panchayat, Gola Bazar, District Gorakhpur Had Already Been Held. The Said Post Had Been Reserved For The Backward Class (woman). The Petitioners Therein Have Exhausted All The Remedies, Viz., Making Of Representation Before The State Election Commissioner, The Secretary, Nagar Vikas, Government Of Uttar Pradesh, As Also All Other Concerned Authorities, But Without Any Response. The Matter Remained Pending For About 2 Years When The Registry, On 11.3.2003, Gave A Report That The Counter Affidavit Filed On Behalf Of The Respondent No.3 (a Private Respondent Who Had Been Elected As President, Nagar Panchayat, Gola Bazar, District Gorakhpur) And The Rejoinder Affidavit Had Been Placed On Record. None Of The Parties Took Any Steps Nor Made Any Efforts To Get The Matter Decided At An Early Date Presumably For The Reason That The Election For The Post Of The President Had Already Been Held. When The Next Election Became Due And Was Expected To Be Held Shortly There Was An Anxiety To Get The Matter Decided Before The Next Election. However, From The State There Was No Anxiety To Get The Matter Decided As They, For Reasons Best Known, Did Not Choose To File The Response/counter Affidavit For Bringing On Record Their Stand. The Case Was Thereafter Listed For Admission Before The Court On 27.7.2005, When It Was Directed To Be Listed On 1.8.2005. On 1.8.2005, The Court Issued Fresh Notices To The Learned Attorney General Of India And The Learned Advocate General, State Of U.P. The Matter Was Directed To Be Listed On 29.8.2005. On 29.8.2005, The Case Was Taken Up When The Counsel For The Union Of India Was Not Present And, Therefore, It Was Directed To Be Listed Peremptorily In The Next Cause List Whereupon It Was Listed On 5.9.2005 When Sri K.C.Sinha, Learned Additional Solicitor General Of India Prayed For And Was Granted Three Weeks And No More Time To File The Counter Affidavit. The State Of U.P. Was Also Directed To File The Counter Affidavit Within The Same Period And The Matter Was Directed To Be Listed On 5.10.2005. On 5.10.2005, Sri Devi Shanker Shukla, Learned Standing Counsel For The Union Of India, Appeared And Prayed For Further Time To File The Counter Affidavit Which Prayer Was Opposed By Sri V.K.S.Chaudhary, Learned Senior Counsel. However, As The Constitutional Validity Of Some Of The Provisions Of The Constitution Amendment Act Was Challenged, The Court, In The Interest Of Justice, Granted Four Weeks' Further Time To File The Counter Affidavit And The Matter Was Fixed For 16.11.2005. Upon An Application Being Filed On 16.11.2005 By The Learned Standing Counsel Appearing For The Union Of India That A Draft Counter Affidavit Had Been Sent To The Ministry Concerned For Vetting And Was Expected Very Shortly, The Time For Filing The Counter Affidavit Was Extended Upto 31.11.2005 And The Matter Was Directed To Be Listed Peremptorily As First Case On 7.12.2005. It May Be Mentioned Here That On Behalf Of The Respondent No.4, I.e., The Union Of India, Counter Affidavit Has Been Filed Only On 5.12.2005. The State Of U.P. And The District Magistrate, Gorakhpur Had Not Filed Any Counter Affidavit. It Appears That The Matter Was Listed On 7.12.2005 But Because Of Paucity For Time It Could Not Be Taken Up. It Was Again Listed Before The Court On 21.12.2005 When On A Joint Request Of The Learned Counsel For The Parties, It Was Directed To Be Listed Peremptorily On 4.1.2006. The Matter Was Taken Up On 4.1.2006 On Regular Basis And Has Been Heard Thereafter.
From The Aforesaid Narration Of Fact, It Would Be Seen That The Petitioners Have Approached This Court For Redressal Of Their Grievance At The Earliest And If On Account Of Non-listing Of The Case Or Being Not Taken Up For One Reason Or The Other, The Petitioners Cannot Be Put To Any Blame. Even Otherwise, As The Validity Of A Constitutional Provision Was Involved, In The Absence Of Any Counter Affidavit Being Filed By The Union Of India, The Interest Of Justice Required To Await The Response Of The Union Of India So That Adjudication Of Such An Important Issue Can Be Done In A Proper Manner, Without Giving An Opportunity Of Having Any Grievance Of Any Party That They Could Not Be File Their Respnse.
Moreover, We Find That In Civil Misc. Writ Petition No.63611 Of 2005, Dr. Naresh Chandra Had Challenged The Validity Of Sub-section (5) Of Section 9-A Of The Act As Also The Rules And Had Further Sought A Direction To The Respondent No.1, I.e., The State Of U.P. Through Its Principal Secretary, Local Bodies, U.P., Lucknow, Not To Reserve The Post Of The President Of The Nagar Panchayat In The Coming Election And Treat It As A General Seat So That The Candidate Of All Categories May Contest The Election And The Citizens Also Have A Better Choice Of Electing A Better Candidate. The Election Of The President, Nagar Panchayats, Are Scheduled To Be Held In This Year And, Therefore, The Plea Regarding Maintainability Of The Writ Petition On The Ground That The Cause Of Action Does Not Survive Or Reservations To Various Post Of The Presidents In Municipalities Is Yet To Be Made, Would Not Hold Good.
It May Be Mentioned Here That A Constitution Bench Of Five Hon'ble Judges Of The Apex Court In The Case Of Minerva Mills Ltd. And Others V. Union Of India And Others, AIR 1980 SC 1789, Has Repelled A Similar Preliminary Objection Raised By The Attorney General And The Additional Solicitor General Of India Regarding Consideration Of The Question Raised By The Petitioners Therein As Regards The Validity Of Sections 4 And 55 Of The Forty Second Amendment Made To The Constitution. The Preliminary Objection Raised Was To The Effect That The Issue Formulated For Consideration Of The Court ''whether The Provisions Of The Forty Second Amendment Of The Constitution Which Deprived The Fundamental Rights Of Their Supremacy And, Inter Alia, Made Them Subordinate To The Directive Principles Of State Policy Are Ultra Vires The Amending Power Of Parliament?' Is Too Wide And Academic And It Was Urged That Since It Is A Settled Practice Of The Court Not To Decide The Academic Question And Since The Property Rights Claimed By The Petitioners Under Articles 19(1)(f) And 31 Do Not Survive After The Forty Fourth Amendment, The Court Should Not Entertain Any Argument On The Point Raised By The Petitioners. The Apex Court Was Of The View That "it Is Settled Principle Of This Court Not To Decide The Academic Question And Our Court Had Consistently Taken The View That We Will Not Formulate A Rule Of Constitutional Law Broader Than Is Required By The Precise Facts To Which It Is To Be Applied. It Is Only When The Rights Of Persons Are Directly Involved That Relief Is Granted By This Court." However, The Court Did Not Upheld The Preliminary Objection In The Following Words:-
"43. But, We Find It Difficult To Uphold The Preliminary Objection Because, The Question Raised By The Petitioners As Regards The Constitutionality Of Ss.4 And 55 Of The 42nd Amendment Is Not An Academic Or A Hypothetical Question. The 42nd Amendment Is There For Any One To See And By Its Ss. 4 And 55 Amendments Have Been Made To Arts. 31C And 368 Of The Constitution. An Order Has Been Passed Against The Petitioners And Section 18A Of The Industries (Development And Regulation) Act, 1951, By Which The Petitioners Are Aggrieved.

44. Besides There Are Two Other Relevant Considerations Which Must Be Taken Into Account While Dealing With The Preliminary Objection. There Is No Constitutional Or Statutory Inhibition Against The Decision Of Questions Before They Actually Arise For Consideration. In View Of The Importance Of The Question Raised And In View Of The Fact That The Question Has Been Raised In Many A Petition, It Is Expedient In The Interest Of Justice To Settle The True Position. Secondly, What We Are Dealing With Is Not An Ordinary Law Which May Or May Not Be Passed So That It Could Be Said That Our Jurisdiction Is Being Invoked On The Hypothetical Consideration That A Law May Be Passed In Future Which Will Injure The Rights Of The Petitioners. We Are Dealing With A Constitutional Amendment Which Has Been Brought Into Operation And Which, Of Its Own Force, Permits The Violation Of Certain Freedoms Through Laws Passed For Certain Purposes. We, Therefore, Overrule The Preliminary Objection And Proceed To Determine The Point Raised By The Petitioners."

In The Case Of M/s Bharat Coking Ltd. (supra), Relied Upon By Sri Kazmi, Another Constitution Bench Of The Same Strength Of The Apex Court Had Occasion To Consider Its Earlier Decision In The Case Of Minerva Mills Ltd. (supra) And Had Expressed Serious Reservation Upon The View Expressed For Overruling The Preliminary Objection In The Following Words:-
"11.......An Objection Was Raised Before The Court By The Learned Attorney General That The Court Should Not Concern Itself With Hypothetical Or Academic Questions. The Objection Was Overruled On The Ground That The Forty-second Amendment Was There For Any One To See And That The Question Raised Was An Important One Dealing With, Not An Ordinary Law, But, A Constitutional Amendment Which Had Been Brought Into Operation And Which Of Its Own Force Permitted The Violations Of Certain Freedoms Through Laws Passed For Certain Purposes. We Have Serious Reservations On The Question Whether It Is Open To A Court To Answer Academic Or Hypothetical Questions On Such Considerations, Particularly So When Serious Constitutional Issues Are Involved. We (judges) Are Not Authorised To Make Disembodied Pronouncements On Serious And Cloudy Issues Of Constitutional Policy Without Battle Lines Being Properly Drawn. Judicial Pronouncements Cannot Be Immaculate Legal Conceptions. It Is But Right That No Important Point Of Law Should Be Decided Without A Proper Lis Between Parties Properly Ranged On Either Side And A Crossing Of The Swords. We Think It Is Inexpedient For The Supreme Court To Delve Into Problems Which Do Not Arise And Express Opinion Thereon."

In The Case Of Basant Kumar (supra), The Apex Court Has Held That Where The Stage At Which The Dead Rent Has To Be Fixed In A Case Of This Nature Has Not Arisen, We Shall Not Engage Ourselves In An Academic Exercise Of Finding Out That The Relevant Rules Are In Conformity With The View Expressed By This Court Or Not And Such An Exercise Will Be Undertaken In A Case Where It Is Necessary To Do So.
It May Be Mentioned Here That A Constitution Bench Of The Apex Court In Special Reference No.1 Of 2002, AIR 2003 SC 87, Has Held That If The Questions Referred Are Likely To Arise In Future Or Such A Question Is Of Public Importance Or There Is No Decision Of The Supreme Court Which Has Already Decided The Questions Referred, The Supreme Court Is Well Within Its Jurisdiction To Answer/advice The President In A Reference Made Under Article 143(1) Of The Constitution.
The Decisions Relied Upon By Sri Kazmi Would Not Be Applicable In The Present Case For The Reason That The Election For The Post Of The Presidents Of The Nagar Panchayat And The Municipality Are To Be Held Shortly In The Year 2006 Itself. The Government Of Uttar Pradesh Is Going To Make Reservation For The Scheduled Caste, Scheduled Tribe, Backward Class And The Women In Accordance With The Rules. The Question Raised In The Present Petitions Is Of Great Importance And, Therefore, It Would Be Expedient In The Interest Of Justice To Settle Once For All The True Position. If The Preliminary Objection Is Sustained, The Result Would Be That If The Petitions Remain Pending In A Court Of Law For No Fault Of The Petitioners, Then After Some Time, The Petitioner Would Be Non-suited Only On The Ground That No Relief Can Be Granted As The Matter Has Become Academic Only. In The Present Case The Validity Of The Constitutional Amendment As Also The Provisions Of The Act And The Rules Are Up For Consideration Providing For Reservation On The Post Of The President In A Municipality Which Is Also Otherwise Of Great Public Importance And, Therefore, It Would Not Be In The Interest Of Justice To Throw Out The Petitions Only On This Ground. We, Therefore, Overrule The Preliminary Objection Raised By The Learned Additional Advocate General.
Validity Of Clause (4) And (6) Of Article 243-T
of The Constitution Of India :

Provisions Of The Constitution Of India :

The Following Provisions Of The Constitution Of India Are To Be Taken Into Consideration While Deciding The Validity Of Clauses (4) And (6) Of Article 243-T Of The Constitution, Which, For Ready Reference, Are Reproduced Below :-
"12. Definition. - In This Part, Unless The Contest Otherwise Requires, "the State" Includes The Government And Parliament Of India And The Government And The Legislature Of Each Of The States And All Local Or Other Authorities Within The Territory Of India Or Under The Control Of The Government Of India."

"13. Laws Inconsistent With Or In Derogation Of The Fundamental Rights.--(1) All Laws In Force In The Territory Of India Immediately Before The Commencement Of This Constitution, In So Far As They Are Inconsistent With The Provisions Of This Part, Shall, To The Extent Of Such Inconsistency, Be Void.
(2) The State Shall Not Make Any Law Which Takes Away Or Abridges The Rights Conferred By This Part And Any Law Made In Contravention Of This Clause Shall, To The Extent Of The Contravention, Be Void.
(3) In This Article, Unless The Context Otherwise Requires,--
(a) "law" Includes Any Ordinance, Order, Bye-law, Rule, Regulation, Notification, Custom Or Usage Having In The Territory Of India The Force Of Law;
(b) "laws In Force" Includes Laws Passed Or Made By A Legislature Or Other Competent Authority In The Territory Of India Before The Commencement Of This Constitution And Not Previously Repealed, Notwithstanding That Any Such Law Or Any Part Thereof May Not Be Then In Operation Either At All Or In Particular Areas.
(4) Nothing In This Article Shall Apply To Any Amendment Of This Constitution Made Under Article 368."

"14. Equality Before Law.--The State Shall Not Deny To Any Person Equality Before The Law Or The Equal Protection Of The Laws Within The Territory Of India."

"15. Prohibition Of Discrimination On Grounds Of Religion, Race, Caste, Sex Or Place Of Birth.--(1) The State Shall Not Discriminate Against Any Citizen On Grounds Only Of Religion, Race, Caste, Sex, Place Of Birth Or Any Of Them.
(2) No Citizen Shall, On Grounds Only Of Religion, Race, Caste, Sex, Place Of Birth Or Any Of Them, Be Subject To Any Disability, Liability, Restriction Or Condition With Regard To--
(a) Access To Shops, Public Restaurants, Hotels And Places Of Public Entertainment; Or
(b) The Use Of Wells, Tanks, Bathing Ghats, Roads And Places Of Public Resort Maintained Wholly Or Partly Out Of State Funds Or Dedicated To The Use Of The General Public.
(3) Nothing In This Article Shall Prevent The State From Making Any Special Provision For Women And Children.
(4) Nothing In This Article Or In Clause (2) Of Article 29 Shall Prevent The State From Making Any Special Provision For The Advancement Of Any Socially And Educationally Backward Classes Of Citizens Or For The Scheduled Castes And The Scheduled Tribes."

"16. Equality Of Opportunity In Matters Of Public Employment.--(1) There Shall Be Equality Of Opportunity For All Citizens In Matters Relating To Employment Or Appointment To Any Office Under The State.
(2) No Citizen Shall, On Grounds Only Of Religion, Race, Caste, Sex, Descent, Place Of Birth, Residence Or Any Of Them, Be Ineligible For, Or Discriminated Against In Respect Of, Any Employment Or Office Under The State.
(3) Nothing In This Article Shall Prevent Parliament From Making Any Law Prescribing, In Regard To A Class Or Classes Of Employment Or Appointment To An Office Under The Government Of, Or Any Local Or Other Authority Within, A State Or Union Territory, Any Requirement As To Residence Within That State Or Union Territory Prior To Such Employment Or Appointment.
(4) Nothing In This Article Shall Prevent The State From Making Any Provision For The Reservation Of Appointments Or Posts In Favour Of Any Backward Class Of Citizens Which, In The Opinion Of The State, Is Not Adequately Represented In The Services Under The State.
(4A) Nothing In This Article Shall Prevent The State From Making Any Provision For Reservation In Matters Of Promotion, With Consequential Seniority, To Any Class Or Classes Of Posts In The Services Under The State In Favour Of The Scheduled Castes And The Scheduled Tribes Which, In The Opinion Of The State, Are Not Adequately Represented In The Services Under The State.
(4B) Nothing In This Article Shall Prevent The State From Considering Any Unfilled Vacancies Of A Year Which Are Reserved For Being Filled Up In That Year In Accordance With Any Provision For Reservation Made Under Clause (4) Or Clause (4A) As A Separate Class Of Vacancies To Be Filled Up In Any Succeeding Year Or Years And Such Class Of Vacancies Shall Not Be Considered Together With The Vacancies Of The Year In Which They Are Being Filled Up For Determining The Ceiling Of Fifty Per Cent. Reservation On Total Number Of Vacancies Of That Year.
(5) Nothing In This Article Shall Affect The Operation Of Any Law Which Provides That The Incumbent Of An Office In Connection With The Affairs Of Any Religious Or Denominational Institution Or Any Member Of The Governing Body Thereof Shall Be A Person Professing A Particular Religion Or Belonging To A Particular Denomination."

"38. State To Secure A Social Order For The Promotion Of Welfare Of The People.--(1) The State Shall Strive To Promote The Welfare Of The People By Securing And Protecting As Effectively As It May A Social Order In Which Justice, Social, Economic And Political, Shall Inform All The Institutions Of The National Life.
(2) The State Shall, In Particular, Strive To Minimise The Inequalities In Income, And Endeavour To Eliminate Inequalities In Status, Facilities And Opportunities, Not Only Amongst Individuals But Also Amongst Groups Of People Residing In Different Areas Or Engaged In Different Vocations."

"243-T. Reservation Of Seats. - (1) Seats Shall Be Reserved For The Scheduled Castes And The Scheduled Tribes In Every Municipally And The Number Of Seats So Reserved Shall Bear, As Nearly As May Be, The Same Proportion To The Total Number Of Seats To Be Filled By Direct Election In That Municipality As The Population Of The Scheduled Castes In The Municipal Area Or Of The Scheduled Tribes In The Municipal Area Bears To The Total Population Of That Area And Such Seats May Be Allotted By Rotation To Different Constituencies In A Municipality.
(2) Not Less Than One-third Of The Total Number Of Seats Reserved Under Clause (1) Shall Be Reserved For Women Belonging To The Scheduled Castes Or, As The Case May Be, The Scheduled Tribes.
(3) Not Less Than One-third (including The Number Of Seats Reserved For Women Belonging To The Scheduled Castes And The Scheduled Tribes) Of The Total Number Of Seats To Be Filled By Direct Election In Every Municipality Shall Be Reserved For Women And Such Seats May Be Allotted By Rotation To Different Constituencies In A Municipality.
(4) The Offices Of Chairpersons In The Municipalities Shall Be Reserved For The Scheduled Castes, The Scheduled Tribes And Women In Such Manner As The Legislature Of A State May, By Law, Provide.
(5) The Reservation Of Seats Under Clauses (1) And (2) And The Reservation Of Offices Of Chairpersons (other Than The Reservation For Women) Under Clause (4) Shall Cease To Have Effect On The Expiration Of The Period Specified In Article 334.
(6) Nothing In This Part Shall Prevent The Legislature Of A State From Making Any Provision For Reservation Of Seats In Any Municipality Or Offices Of Chairpersons In The Municipalities In Favour Of Backward Class Of Citizens."

"368. Power Of Parliament To Amend The Constitution And Procedure Therefor.-- (1) Notwithstanding Anything In This Constitution, Parliament May In Exercise Of Its Constituent Power Amend By Way Of Addition, Variation Or Repeal Any Provision Of This Constitution In Accordance With The Procedure Laid Down In This Article.
(2) An Amendment Of This Constitution May Be Initiated Only By The Introduction Of A Bill For The Purpose In Either House Of Parliament, And When The Bill Is Passed In Each House By A Majority Of The Total Membership Of That House And By A Majority Of Not Less Than Two-thirds Of The Members Of That House Present And Voting, It Shall Be Presented To The President Who Shall Give His Assent To The Bill And Thereupon The Constitution Shall Stand Amended In Accordance With The Terms Of The Bill:
Provided That If Such Amendment Seeks To Make Any Change In--
(a) Article 54, Article 55, Article 73, Article 162 Or Article
241, Or
(b) Chapter IV Of Part V, Chapter V Of Part VI, Or
Chapter I Of Part XI, Or
(c) Any Of The Lists In The Seventh Schedule, Or
(d) The Representation Of States In Parliament, Or
(e) The Provisions Of This Article,
the Amendment Shall Also Require To Be Ratified By The Legislatures Of Not Less Than One-half Of The States By Resolutions To That Effect Passed By Those Legislatures Before The Bill Making Provision For Such Amendment Is Presented To The President For Assent.
(3) Nothing In Article 13 Shall Apply To Any Amendment Made Under This Article.
(4) No Amendment Of This Constitution (including The Provisions Of Part III) Made Or Purporting To Have Been Made Under This Article Whether Before Or After The Commencement Of Section 55 Of The Constitution (Forty-second Amendment) Act, 1976 Shall Be Called In Question In Any Court On Any Ground.
(5) For The Removal Of Doubts, It Is Hereby Declared That There Shall Be No Limitation Whatever On The Constituent Power Of Parliament To Amend By Way Of Addition, Variation Or Repeal The Provisions Of This Constitution."

Coming To The Merits Of The Case, We Find That The Para Meters Of The Organs Of The Local Self-government Contained In Part IX-A Which Consists Of Article 243-P To 243-ZG, Was Inserted By The Constitution Amendment Act With Effect From 1.6.1993. The Statement Of Objects And Reasons Appended To The Seventy Third Amendment Bill 1991, Which Was Enacted As The Constitution (Seventy Fourth Amendment) Act, 1992, Amongst Others, Mentions For Reservation Of The Office Of The Chairperson For The Scheduled Caste, Scheduled Tribe And The Women, As May Be Specified In The State Law. The Statement Of Objects And Reasons Are Reproduced Below:-
"STATEMENT OF OBJECTS AND REASONS

In Many States Local Bodies Have Become Weak And Ineffective On Account Of A Variety Of Reasons, Including The Failure To Hold Regular Elections, Prolonged Supersessions And Inadequate Devolution Of Powers And Functions. As A Result, Urban Local Bodies Are Not Able To Perform Effectively As Vibrant Democratic Units Of Self-government.

2. Having Regard To These Inadequacies, It Is Considered Necessary That Provisions Relating To Urban Local Bodies Are Incorporated In The Constitution Particularly For-
(i) Putting On A Firmer Footing The Relationship Between The State Government And The Urban Local Bodies With Respect To-
(a) The Functions And Taxation Powers; And
(b) Arrangements For Revenue Sharing;
(ii) Ensuring Regular Conduct Of Elections;
(iii) Ensuring Timely Elections In The Case Of Supersession; And
(iv) Providing Adequate Representation For The Weaker Sections Like Scheduled Castes, Scheduled Tribes And Women.

3. Accordingly, It Is Proposed To Add A New Part Relating To The Urban Local Bodies In The Constitution To Provide For-
(a) Constitution Of Three Types Of Municipalities:
(i) Nagar Panchayats For Areas In Transition From A Rural Area To Urban Area;
(ii) Municipal Councils For Smaller Urban Areas;
(iii) Municipal Corporations For Larger Urban Areas.
The Broad Criteria For Specifying The Said Areas Is Being Provided In The Proposed Article 243-0;
(b) Composition Of Municipalities, Which Will Be Decided By The Legislature Of A State, Having The Following Features:
(i) Persons To Be Chosen By Direct Election;
(ii) Representation Of Chairpersons Of Committees, If Any, At Ward Or Other Levels In The Municipalities;
(iii) Representation Of Persons Having Special Knowledge Or Experience Of Municipal Administration In Municipalities (without Voting Rights);
(c) Election Of Chairpersons Of A Municipality In The Manner Specified In The State Law;
(d) Constitution Of Committees At Ward Level Or Other Level Or Levels Within The Territorial Area Of A Municipality As May Be Provided In The State Law;
(e) Reservation Of Seats In Every Municipality-
(i) For Scheduled Castes And Scheduled Tribes In Proportion To Their Population Of Which Not Less Than One-third Shall Be For Women;
(ii) For Women Which Shall Not Less Than One-third Of The Total Number Of Seats;
(iii) In Favour Of Backward Class Of Citizens If So Provided By The Legislature Of The State;
(iv) For Scheduled Castes, Scheduled Tribes And Women In The Office Of Chairpersons As May Be Specified In The State Law;
(f) Fixed Tenure Of 5 Years For The Municipality And Re-election Within Six Months Of End Of Tenure. If A Municipality Is Dissolved Before Expiration Of Its Duration, Elections To Be Held Within A Period Of Six Months Of Its Dissolution;
(g) Devolution By The State Legislature Of Powers And Responsibilities Upon The Municipalities With Respect To Preparation Of Plans For Economic Development And Social Justice, And For The Implementation Of Development Schemes As May Be Required To Enable Them To Function As Institutions Of Self-government;
(h) Levy Of Taxes And Duties By Municipalities, Assigning Of Such Taxes And Duties To Municipalities By State Governments And For Making Grants-in-aid By The State To The Municipalities As May Be Provided In The State Law;
(i) A Finance Commission To Review The Finances Of The Municipalities And To Recommend Principles For-
(1) Determining The Taxes Which May Be Assigned To The Municipalities;
(2) Sharing Of Taxes Between The State And Municipalities;
(3) Grants-in-aid To The Municipalities From The Consolidated Fund Of The State;
(j) Audit Of Accounts Of The Municipal Corporations By The Comptroller And Auditor-General Of India And Laying Of Reports Before The Legislature Of The State And The Municipal Corporation Concerned;
(k) Making Of Law By A State Legislature With Respect To Elections To The Municipalities To Be Conducted Under The Superintendence, Direction And Control Of The Chief Electoral Officer Of The State;
(l) Application Of The Provisions Of The Bill To Any Union Territory Or Part Thereof With Such Modifications As May Be Specified By The President;
(m) Exempting Scheduled Areas Referred To In Clause (1), And Tribal Areas Referred To In Clause (2), Of Article 244, From The Application Of The Provisions Of The Bill. Extension Of Provisions Of The Bill To Such Areas May Be Done By Parliament By Law;
(n) Disqualifications For Membership Of A Municipality;
(o) Bar Of Jurisdiction Of Courts In Matters Relating To Elections To The Municipalities.

4. The Bill Seeks To Achieve The Aforesaid Objectives."

From A Reading Of The Provisions Of Article 243-T, It Is Seen That It Provides For Reservation Of Seats. Clause (1) Deals With The Reservation Of Seats For The Scheduled Castes And The Scheduled Tribes In Every Municipality Vis-a-vis Their Population And Proportion Of Total Number Of Seats To Be Allotted By Rotation To Different Constituencies. Clause (2) Deals With The Reservation Of Seats For The Women To The Extent Of 1/3rd Of The Total Number Of Seats Reserved Under Clause (1) Belonging To The Scheduled Castes And The Scheduled Tribes, As The Case May Be. Clause (3) Deals With The Overall Reservation Provided To Women In A Municipality. Clause (4) Provides For Reservation Of The Office Of Chairperson In The Municipality In Favour Of The Scheduled Castes, Scheduled Tribes, And Women In A Manner To Be Provided By Law By The Legislature Of The State. Clause (5) Provides That The Reservation Provided Under Clauses (1) And (2) And The Reservation Of The Office Of Chairperson Other Than The Reservation For Women Under Clause (4), Would Cease After The Expiration Of The Period Specified Under Article 334 Which Is Sixty Years From The Date Of Commencement Of The Constitution Of India. However, Clause (6) Enables The State Legislature To Make Provision For Reservation Of Seats In A Municipality Or The Office Of The Chairperson In A Municipality In Favour Of Backward Classes Of Citizens.
The Parliament Has Been Empowered To Amend The Constitution Under Article 368. The Parliament Has Amended The Constitution By Inserting Part IX-A By The Constitution Amendment Act. The Bill Has Been Ratified By Resolutions Of Not Less Than Half Of The State Legislature In The Country.
Presumption Regarding Constitutionality :
It Is Well Settled That An Act, What To Say Of A Constitution Amendment Act, Is Presumed To Have Been Enacted Within The Four Corners Of The Provisions Of The Constitution. There Is A Presumption Regarding Its Constitutionality.
In The Case Of Charanjit Lal Chowdhury V. The Union Of India And Others, AIR 1951 SC 41, And Shri Ram Krishna Dalmia And Others V. Shri Justice S.R.Tendolkar And Others, AIR 1958 SC 538, The Apex Court Has Held That It Is Well Founded That The Presumption Is Always In Favour Of The Constitutionality Of An Enactment And The Burden Is Upon Him Who Attacks It To Show That There Has Been Clear Transgression Of The Constitutional Principles.
In The Case Of The State Of Bombay And Another V. F.N.Balsara, AIR 1951 SC 318, And Mahant Modi Das V. S.P.Sahi, AIR 1959 SC 942, The Apex Court Has Held That The Presumption Is Always In Favour Of The Constitutionality Of An Enactment, Since It Must Be Assumed That The Legislature Understands And Correctly Appreciates The Needs Of Its Own People, That Its Laws Are Directed To Problems Made Manifest By Experience And Its Discriminations Are Based On Adequate Grounds.
The Aforesaid Decisions Have Been Followed By The Apex Court In The Case Of Hamdard Dawakhana (supra).
In The Case Of Jalan Trading Co. (P) Ltd. (supra) The Apex Court Has Held That There Is A Presumption Regarding Constitutionality Of A Statute When The Challenge Is Founded On Article 14 Of The Constitution And The Onus Of Proving Unconstitutionality Lies Upon The Person Challenging It.
The Apex Court In The Case Of Girish Kumar Navalakha (supra) Has Held That Approach Of Judicial Restraint And Presumption Of Constitutionality Requires That The Legislature Is Given The Benefit Of Doubt About Its Purpose.
In The Case Of Bihar Distillery Ltd. (supra) The Apex Court Has Held That The Approach Of The Court While Examining The Challenge To The Constitutionality Of An Enactment Is To Start With The Presumption Of Constitutionality And The Court Should Try To Sustain Its Validity To The Extent Possible. It Should Strike Down The Enactment Only When It Is Not Possible To Sustain It. The Apex Court Has Further Held That The Court Should Not Approach The Enactment With A View To Pick Hole Or To Search Defects For Drafting Much Less Inexactitude Of Language Employed. Indeed Any Such Defects Of Drafting Should Be Ironed Out As Part Of The Attempt To Sustain The Validity/constitutionality Of The Enactment. After All, An Act Made By The Legislature Represents The Will Of The People And That Cannot Be Lightly Interferred With. Unconstitutionality Must Be Plainly And Clearly Established Before The Enactment Is Declared As Void.
In The Case Of Union Of India V. Elphinstone Spinning And Weaving Co. Ltd. And Others, AIR 2001 SC 724, The Apex Court Has Held That A Statute Is Construed So As To Make It Effective And Operative. There Is Always A Presumption That The Legislature Does Not Exceed Its Jurisdiction And The Burden Of Establishing That The Legislature Has Transgressed Constitutional Mandates Such As, Those Relating To Fundamental Rights Is Always On The Person Who Challenges Its Vires. Unless It Becomes Clear Beyond Reasonable Doubt That The Legislation In Question Transgresses The Limits Laid Down By The Organic Law Of The Constitution It Must Be Allowed To Stand As The True Expression Of The National Will.
Thus, We Have To Treat Clauses (4) And (6) Of Article 243-T Of The Constitution Of India As Valid Unless The Petitioners Prove Otherwise.
It Is Also Well Established That Mere Possibility Of Abuse Of A Provision Of Law Does Not Per Se Invalidate The Legislation. It Must Be Presumed Unless The Contrary Is Proved, That The Administration And Application Of A Particular Law Would Be Done Not With An Evil Eye And Unequal Hand, As Held By The Apex Court In The Case Of A.Thangal Kunju Musaliar V. M. Venkatichalam Potti, AIR 1956 SC 246.
In The Case Of Budhan Chowdhry V. State Of Bihar, AIR 1955 SC 191, A Contention Was Raised That A Provision Of Law May Not Be Discriminatory But It May Lend Itself To Abuse Bringing About Discrimination Between The Persons Similarly Situated. The Apex Court Repelled The Contention Holding That On The Possibility Of Abuse Of A Provision By The Authority, The Legislation May Not Be Held Arbitrary Or Discriminatory And Violative Of Article 14 Of The Constitution.
In The Case Of Mafatlal Industries Ltd. V. Union Of India, (1997) 3 SCC 536, A Bench Of Nine Hon'ble Judges Of The Apex Court Observed That Mere Possibility Of Abuse Of A Provision By Those In Charge Of Administering It Cannot Be A Ground For Holding A Provision Procedurally Or Substantively Unreasonable.
In The Case Of Collector Of Customs V. Nathella Samapthu Chetty, (1962) 3 SCR 786, The Apex Court Observed That The Possibility Of Abuse Of A Statute Otherwise Valid Does Not Impart To It Any Element Of Invalidity.
In The Case Of State Of Rajasthan V. Union Of India, AIR 1977 SC 1361, The Apex Court Has Held That It Must Be Remembered That Merely Because Power May Sometime Be Abused, It Is No Ground For Denying The Existence Of Power. The Wisdom Of Man Has Not Yet Been Able To Conceive Of A Government With Power Sufficient To Answer All Its Legitimate Needs And At The Same Time Incapable Of Mischief. (See Commissioner, H.R.E. V. Sri Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt, AIR 1954 SC 282).
The Apex Court In The Case Of Maulavi Hussein Haji Abraham Umarji V. State Of Gujarat, (2004) 6 SCC 672; Unique Butyle Tube Industries (P) Ltd. V. U.P.Financial Corporation, (2003) 2 SCC 455; And Padma Sundara Rao V. State Of T.N., (2002) 3 SCC 533, While Interpreting A Provision Has Held That The Court Only Interprets The Law And Cannot Legislate It. If A Provision Of Law Is Misused And Subjected To The Abuse Of The Process Of Law, It Is For The Legislature To Amend, Modify Or Repeal It, If Deemed Necessary.
The Apex Court In The Case Of Sushil Kumar Sharma V. Union Of India And Others, (2005) 6 SCC 281, Has Held That From The Decided Cases In India As Well As In The United States Of America, The Principle Appears To Be Well Settled That If A Statutory Provision Is Otherwise Intra Vires, Constitutional And Valid, Mere Possibility Of Abuse Of Power In A Given Case Would Not Make It Objectionable, Ultra Vires Or Unconstitutional. In Such Cases, Action And The Section May Be Vulnerable. If It Is So, The Court By Upholding The Provision Of Law, May Still Set Aside The Action, Order Or Decision And Grant Appropriate Relief To The Person Aggrieved.
In View Of The Settled Principles As Mentioned Above, We Cannot Hold A Provision To Be Ultra Vires Or Unconstitutional Merely Because There Is A Possibility Of It Being Misused.
So Far As The Argument Of Sri Devi Shanker Shukla, L