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

- **Citation:** [2023] 5 S.C.R. 503
- **Court:** Supreme Court of India
- **Decided:** 2023-02-13
- **Bench:** Sanjay Kishan Kaul, Abhay S. Oka
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/haji-abdul-gani-khan-anr-v-union-of-india-ors-37085
- **Pages:** 48

## Headnote

Constitution of India - Arts.170 and 239A - Jammu and
Kashmir Reorganisation Act, 2019 - s.13 - Art. 170 forming part
of Chapter III of Part VI of the Constitution under the title "The
State Legislature" - Issue of applicability of Art.170 to the Union
Territory of J&K - Held: As far as the Legislative Assembly of the
Union territory of J&K is concerned, Art.170 will have no
application as it forms a part of Chapter III of Part VI which deals
with only the State Legislature - It has no application to the
Legislatures of Union Territories - The reason is that the Legislative
Assemblies of the concerned Union Territories will be governed by
the law made by the Parliament in accordance with Art.239A and
not by the provisions of Chapter III of Part VI - By virtue of s.13 of
the J&K Reorganisation Act, with effect from 31st October 2019,
Art. 239A became applicable to the Union Territory of J&K.
Delimitation Act, 2002 - s.9 - Jammu and Kashmir
Reorganisation Act, 2019 - ss.60 and 62 - Action of constituting a
Delimitation Commission for the Union Territory of Jammu and
Kashmir under provisions of the Delimitation Act, 2002 and exercise
of delimitation undertaken by the Commission - Readjustment of
seats - Legality and validity of - Held: Part V of the J&K
Reorganisation Act deals with the Delimitation of Constituencies -
By virtue of clause (a) of sub-section (1) of s.62, the provisions of
the Delimitation Act, 2002 were made applicable to the Union
Territory of J & K with effect from 31st October 2019 - Sub-section
(1) of s.60 provides that the exercise of the division of the newly
constituted Union Territory into 90 assembly constituencies and
providing for reservation may be undertaken by the Election
Commission - However, the purport of s.62 is that if a Delimitation
Commission is constituted under the Delimitation Act 2002, the
exercise provided by clauses (a) to (c) of sub-section (1) of s.60
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shall be carried out by the Delimitation Commission - Sub-section
(2) of s.62 refers to readjustment of the constituencies - Purport of
sub-section (2) of s.62 is that readjustment means the creation of
90 constituencies in the newly set up Union territory - Thus, the
process of readjustment contemplated by sub-section (2) of s.62 is
nothing but the exercise of delimitation under sub-section (1) of
s.60.
Delimitation Act, 2002 - s.9 - Jammu and Kashmir
Reorganisation Act, 2019 - ss.62 and 63 - Constitution of
Delimitation Commission for the Union Territory of Jammu and
Kashmir - Exercise of delimitation/ readjustment of the constituencies
undertaken on the basis of 2011 census figures - Challenge to -
Held: By virtue of clause (b) of sub-section (1) of s.62 of the J&K
Reorganisation Act, the year 2001 appearing in sub-section (1) of
s.9 of the Delimitation Act, 2002 will have to be read as 2011 -
Thus, nothing illegal about the exercise of delimitation/ readjustment
of the constituencies undertaken by the Delimitation Commission
for purposes of dividing the Union Territory into 90 constituencies
on the basis of the 2011 census figures - Clause (b) of sub-Section
(1) of s.62 of the J&K Reorganisation Act 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 Union
territory of J & K, the year 2001 in sub-section (1) of s.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 -
Effect of s.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 fi

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[2023] 5 S.C.R. 503
503
HAJI ABDUL GANI KHAN & ANR.
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 237 of 2022)
FEBRUARY 13, 2023
[SANJAY KISHAN KAUL AND ABHAY S. OKA, JJ.]
Constitution of India - Arts.170 and 239A - Jammu and
Kashmir Reorganisation Act, 2019 - s.13 - Art. 170 forming part
of Chapter III of Part VI of the Constitution under the title "The
State Legislature" - Issue of applicability of Art.170 to the Union
Territory of J&K - Held: As far as the Legislative Assembly of the
Union territory of J&K is concerned, Art.170 will have no
application as it forms a part of Chapter III of Part VI which deals
with only the State Legislature - It has no application to the
Legislatures of Union Territories - The reason is that the Legislative
Assemblies of the concerned Union Territories will be governed by
the law made by the Parliament in accordance with Art.239A and
not by the provisions of Chapter III of Part VI - By virtue of s.13 of
the J&K Reorganisation Act, with effect from 31st October 2019,
Art. 239A became applicable to the Union Territory of J&K.
Delimitation Act, 2002 - s.9 - Jammu and Kashmir
Reorganisation Act, 2019 - ss.60 and 62 - Action of constituting a
Delimitation Commission for the Union Territory of Jammu and
Kashmir under provisions of the Delimitation Act, 2002 and exercise
of delimitation undertaken by the Commission - Readjustment of
seats - Legality and validity of - Held: Part V of the J&K
Reorganisation Act deals with the Delimitation of Constituencies -
By virtue of clause (a) of sub-section (1) of s.62, the provisions of
the Delimitation Act, 2002 were made applicable to the Union
Territory of J & K with effect from 31st October 2019 - Sub-section
(1) of s.60 provides that the exercise of the division of the newly
constituted Union Territory into 90 assembly constituencies and
providing for reservation may be undertaken by the Election
Commission - However, the purport of s.62 is that if a Delimitation
Commission is constituted under the Delimitation Act 2002, the
exercise provided by clauses (a) to (c) of sub-section (1) of s.60
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shall be carried out by the Delimitation Commission - Sub-section
(2) of s.62 refers to readjustment of the constituencies - Purport of
sub-section (2) of s.62 is that readjustment means the creation of
90 constituencies in the newly set up Union territory - Thus, the
process of readjustment contemplated by sub-section (2) of s.62 is
nothing but the exercise of delimitation under sub-section (1) of
s.60.
Delimitation Act, 2002 - s.9 - Jammu and Kashmir
Reorganisation Act, 2019 - ss.62 and 63 - Constitution of
Delimitation Commission for the Union Territory of Jammu and
Kashmir - Exercise of delimitation/ readjustment of the constituencies
undertaken on the basis of 2011 census figures - Challenge to -
Held: By virtue of clause (b) of sub-section (1) of s.62 of the J&K
Reorganisation Act, the year 2001 appearing in sub-section (1) of
s.9 of the Delimitation Act, 2002 will have to be read as 2011 -
Thus, nothing illegal about the exercise of delimitation/ readjustment
of the constituencies undertaken by the Delimitation Commission
for purposes of dividing the Union Territory into 90 constituencies
on the basis of the 2011 census figures - Clause (b) of sub-Section
(1) of s.62 of the J&K Reorganisation Act 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 Union
territory of J & K, the year 2001 in sub-section (1) of s.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 -
Effect of s.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 s.63, further readjustment can be carried
out only after the publication of figures from the census held after
the year 2026.
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Delimitation Act, 2002 - ss.10(6) and 10A - Jammu and
Kashmir Reorganisation Act, 2019 - s.62 - Action of constituting a
Delimitation Commission for the Union Territory of Jammu and
Kashmir - Delimitation exercise - Time limit provided u/s.10(6) - If
mandatory - Held: s.10A of the Act, 2002 itself indicates that the
time limit of 31st July 2008 fixed under sub-Section (6) of s.10 is not
sacrosanct as it confers a power on the Hon'ble President to defer
the delimitation exercise in a State under certain circumstances -
Sub-section (6) of s.10 of the Delimitation Act, 2002 uses the word
"endeavour" - Thus, the time limit provided in sub-section (6) of
s.10 was never intended to be mandatory - While amending s.2(f)
of the Delimitation Act by the J&K Reorganisation Act, sub-section
(6) of s.10 has not been amended for enlarging the period provided
thereunder - However, the intention of the legislature as reflected
in sub-sections (2) and (3) of s.62 of the J&K Reorganisation Act is
crystal clear - The very fact that the duty of making the readjustment
as per sub-sections (2) and (3) of s.62 on the basis of the 2011
census figures has been entrusted to the Delimitation Commission
suggests that the legislature intended that the Delimitation
Commission for the Union Territory of Jammu & Kashmir will remain
unaffected by the requirement of completing the exercise by the end
of July 2008 - The provisions of sub-Sections (2) and (3) of s.62
will have to be interpreted in a manner that gives effect to the
intention of the legislature - If it is held that due to the failure of the
legislature to modify the time limit provided in sub-Section (6) of
s.10 of the Delimitation Act, 2002, the Central Government is
powerless to appoint a Delimitation Commission for the newly
created Union territory, the provisions of s.62 of the J&K
Reorganisation Act will be rendered nugatory.
Delimitation Act, 2002 - Delimitation Commission for the
Union Territory of Jammu and Kashmir - Chairperson of the
Delimitation Commission - Term of appointment of the Chairperson
- Under notification dated 6th March 2020, appointment of the
Chairperson of the Delimitation Commission who was a retired Judge
of this Court was for a period of one year - By notification dated
3rd March 2021, the said period was extended up to two years - By
third impugned notification dated 21st February 2022, the said
period of two years was extended to two years and two months -
Held: Once the Delimitation Commission was established, there is
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nothing wrong if the Central Government extended the period of
appointment of the Chairperson till the task of delimitation/
readjustment was completed - Delimitation Act, 2002 is silent about
the term of the appointment of the Chairperson.
Constitution of India - Arts. 3, 4 and 239A - Conversion of
an existing State into one or more Union territories - Power of the
Parliament - Conjoint reading of Arts. 3,4 and 239A - Held:
Parliament by making a law can convert an existing State into one
or more Union territories.
Practice and Procedure - Constitutional validity of a statute
- Challenge to - Challenge has to be specifically pleaded - Held:
When a party wants to challenge the constitutional validity of a
statute, he must plead in detail the grounds on which the validity of
the statute is sought to be challenged - The Constitutional Courts
cannot interfere with the law made by the Legislature unless it is
specifically challenged by incorporating specific grounds of
challenge in the pleadings - The reason is that there is always a
presumption of the constitutionality of laws - The burden is always
on the person alleging unconstitutionality to prove it - A
Constitutional Court cannot casually interfere with legislation made
by a competent Legislature only by drawing an inference from the
pleadings that the challenge to the validity is implicit.
Interpretation of Statutes - Held: A statute cannot be
interpreted in a manner that will render some of its provisions otiose
- A statute must be construed and interpreted in such a manner as
to make it workable.
Doctrines/ Principles - Equality - Two unequals cannot be
treated as equals.
Words and Phrases - Word "endeavour" - Use of the word
in Sub-section (6) of s.10 of the Delimitation Act, 2002.
Dismissing the writ petition, the Court
HELD: 1. Issue of applicability of Article 170 having the
title "Composition of the Legislative Assemblies" to the Union
Territory of J & K.
1.1. Article 170 forms part of Chapter III under the title
"The State Legislature". Chapter III has been incorporated in
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Part VI of the Constitution which deals with the States. Though
much emphasis was laid on the violation of the provisions
contained in the second Proviso to Clause (3) of Article 170 by
the petitioners, but the said Article does not deal with the
legislatures of Union Territory at all. Articles 239A and 239AA
which are included in Part VIII of the Constitution are the Articles
that deal with the creation of a body to function as legislature and
Council of Ministers for certain Union Territories. [Para 18][532B-D]
1.2. Article 239A as it originally stood provided that
Parliament may by law create for the Union Territory of
Puducherry a body to function as a Legislature for the Union
Territory or a Council of Ministers or both. Such a body to act as
a Legislature of the Union Territory covered by Article 239A
may be elected or partly nominated and partly elected. By virtue
of Section 13 of the J&K Reorganisation Act, with effect from
31st October 2019, Article 239A became applicable to the Union
Territory of J and K. As noted by clause (2) of Article 239A, the
law contemplated by clause (1) of Article 239A shall not be deemed
to be an amendment to the Constitution for the purposes of Article
368 notwithstanding that it contains any provision which amends
or has the effect of amending the Constitution. [Para 18][532-GH; 533-A-B]
1.3. On a conjoint reading of Articles 3,4 and 239A, it is
found that:- (a) Parliament by making a law can convert an existing
State into one or more Union territories; (b) Parliament is
empowered by law to create a body of legislature for the Union
territories of Puducherry and J&K. Accordingly, sub-Section (2)
of Section 14 of the J & K Reorganisation Act provides that there
shall be a Legislative Assembly for the Union Territory of J &
K.; and (c) Even if the law made by Parliament creating a body of
legislature for Union territories of Puducherry and J&K has the
effect of amending certain parts of the Constitution, it shall not
be deemed to be an amendment of the Constitution for the
purposes of Article 368. [Para 19][533-B-E]
1.4. As far as the Legislative Assembly of the Union
territory of J & K is concerned, Article 170 will have no
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application as it forms a part of Chapter III of Part VI which deals
with only the State Legislature. It has no application to the
Legislatures of Union Territories. The reason is that the
Legislative Assemblies of the concerned Union Territories will
be governed by the law made by the Parliament in accordance
with Article 239A and not by the provisions of Chapter III of Part
VI. As Article 170 is not applicable to the Legislature of the Union
Territory of J & K, the main thrust of the argument that certain
provisions of the J&K Reorganisation Act and actions taken
thereunder are in conflict with Article 170 and in particular Clause
(3) thereof is clearly misconceived and deserves to be rejected.
[Para 23][534-D-F]
Issue of delimitation of constituencies of the Legislative
Assembly of the Union territory of J and K.
2.1. There were two earlier enactments dealing with the
establishment of the Delimitation Commission. The first one was
the Delimitation Commission Act, 1962 and the second one was
the Delimitation Act, 1972. Both the Acts were not applicable to
the State of Jammu and Kashmir as the definition of the State
incorporated in both Acts specifically excluded the State of Jammu
and Kashmir. The same is the case with the Delimitation Act,
2002. Section 3 of the J&K RP Act laid down the requirement of
the establishment of the Delimitation Commission which provided
that the Delimitation Commission shall distribute the seats in
the Legislative Assembly to single member territorial
constituencies and delimit them having regard to various factors
mentioned in sub-section (2) of Section 3. Section 4-B of the J&K
RP Act provided for the Delimitation Commission to pass an order
regarding the delimitation of constituencies and publish the same.
In fact, the Delimitation of Assembly Constituencies Order, 1995
was issued which was applicable to the State of Jammu and
Kashmir. [Para 24][534-G-H; 535-A-B]
2.2. By virtue of sub-section (5) of Section 14 of the J&K
Reorganisation Act, the said Delimitation Order of 1995 was
amended as provided in the Third Schedule thereof. The Third
Schedule contains the details of the amendments to the
delimitation of the assembly constituencies made by the said
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Delimitation Order of 1995 in relation to the existing 83 assembly
constituencies out of a total 107 as provided in sub-section (3) of
Section 14. 24 constituencies covered by the Pakistan occupied
area were obviously not covered by the Delimitation Order. Thus,
by virtue of sub-section (5) of Section 14, the delimitation of 83
constituencies of the Legislative Assembly of the Union Territory
of J & K was incorporated in the form of the Third Schedule
which sets out the boundaries of and the areas incorporated in
the new individual 83 constituencies. [Para 25][535-D-F]
2.3. Part V of the J & K Reorganisation Act deals with the
Delimitation of Constituencies. By virtue of clause (a) of subsection (1) of Section 62, the provisions of the Delimitation Act,
2002 were made applicable to the Union Territory of J & K with
effect from 31st October 2019. [Para 26][535-F-G]
2.4. The delimitation of 83 constituencies of the Union
Territory was made under the J&K Reorganisation Act and was
incorporated in the Third Schedule as provided in sub-section
(5) of Section 14. By virtue of the mandate of sub-section (1) of
Section 60, the total number of seats in the Legislative Assembly
of the Union Territory was required to be increased from 107 to
114. Thus, by excluding 24 seats from Pakistan occupied areas,
the mandate was to increase the seats from 83 to 90. For giving
effect to the increase in the number of seats as aforesaid, the
exercise of delimitation for dividing the Union Territory into 90
constituencies and determining the number of seats to be
reserved for Scheduled Castes and Schedule Tribes was required
to be undertaken. Sub-section (1) of Section 60 provides that the
said delimitation exercise may be undertaken by the Election
Commission. However, sub-section (2) of Section 62 provides
that the readjustment of the constituencies as provided under
Section 60 in the successor Union Territory of J & K into
assembly constituencies shall be carried out by the Delimitation
Commission to be constituted under the Delimitation Act, 2002
as amended by the J&K Reorganisation Act. Sub-section (1) of
Section 60 provides that the exercise of the division of the newly
constituted Union Territory into 90 assembly constituencies and
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providing for reservation may be undertaken by the Election
Commission. However, the purport of Section 62 is that if a
Delimitation Commission is constituted under the Delimitation
Act 2002, the exercise provided by clauses (a) to (c) of sub-section
(1) of Section 60 shall be carried out by the Delimitation
Commission. However, sub-section (2) of Section 62 refers to
the readjustment of the constituencies. But, the purport of subsection (2) of Section 62 is that the readjustment means the
creation of 90 constituencies in the newly set up Union territory.
Thus, the process of readjustment contemplated by sub-section
(2) of Section 62 is nothing but the exercise of delimitation under
sub-section (1) of Section 60. [Para 27][539-A-F]
2.5. The provisions of the Delimitation Act 2002 indicate
what is readjustment. By virtue of Clause (b) of sub-section (1)
of Section 62 of the J&K Reorganisation Act, the year 2001 stands
substituted by the year 2011 in relation to the Legislative
Assembly of the Union Territory of J & K. Under Section 9 of
the Delimitation Act, 2002, a specific power has been conferred
on the Delimitation Commission of conducting the Delimitation
exercise. By virtue of clause (b) of sub-section (1) of Section 62
of the J&K Reorganisation Act, the year 2001 appearing in subsection (1) of Section 9 of the Delimitation Act, 2002 will have to
be read as 2011. Therefore, the Delimitation Commission
established under the Order dated 6th March 2020 had to
undertake the exercise of delimitation or readjustment on the
basis of the census figures of 2011 as the earlier exercise of
delimitation of the constituencies of the erstwhile State was not
made on the basis of the census figures of 2011. For the reasons
stated above, there is nothing illegal about the exercise of
delimitation/readjustment of the constituencies undertaken by
the Delimitation Commission for the purposes of dividing the
Union Territory into 90 constituencies on the basis of the 2011
census figures. [Paras 28 and 29][539-G; 540-D-E; 541-F-H; 542A]
2.6. In the First Schedule to the RP Act of 1950, a total of 6
seats were allocated to the erstwhile State of Jammu and Kashmir
with no reservation for Scheduled Castes and Schedule Tribes.
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Section 10 of the J&K Reorganisation Act provides that out of
the 6 seats allocated to the erstwhile State, 5 will be allocated to
the Union Territory of J & K and one will be to the Union Territory
of Ladakh. That is how Section 11 provides thereof that the
Delimitation of Parliamentary Constituencies Order, 1976 stands
amended as provided in the Second Schedule of the said Act.
Thus, the delimitation of the five parliamentary constituencies of
the Union Territory of J & K and one constituency of the Union
Territory of Ladakh was made by virtue of Section 11 as provided
in the Second Schedule. [Para 30][542-B-D]
2.7. Clause (c) of sub-section (1) of Section 60 of the J&K
Reorganisation Act provides that considering the increase in the
number of seats of the Legislative Assembly, the adjustments in
the boundaries and description of the extent of the Parliamentary
Constituencies in each Union Territory may be made by the
Election Commission. Sub-section (3) of Section 62 provides that
readjustment of the constituencies as provided in Section 11 in
the successor Union Territories into Parliamentary Constituencies
shall be carried out by the Delimitation Commission. The
readjustment referred to in sub-section (3) of Section 62 is the
adjustment of boundaries and description of the extent of the
Parliamentary Constituencies as provided in sub-section (1) of
Section 60. This became necessary as a result of the requirement
of readjustment /delimitation of 90 constituencies of the
Legislative Assembly. Therefore, there is no illegality associated
with the delimitation /readjustment of Parliamentary
constituencies of the Union Territory of J & K undertaken by
the Delimitation Commission. [Para 31][542-E-G]
Legality of the appointment of the Delimitation Commission
by the Notification of 6th March 2020
3.1. When the impugned notification dated 6th March 2020
constituting the Delimitation Commission requires the
Delimitation Commission to undertake the exercise of the
delimitation of Assembly and Parliamentary Constituencies in the
Union Territory of J & K, it refers to the exercise of readjustment
as provided in sub-section (2) and (3) of Section 62 which is
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nothing but delimitation exercise contemplated by sub-section
(1) of Section 60 due to the reason of the increase in the
membership of the Legislative Assembly from 83 to 90. Moreover,
the readjustment was necessary to be made on the basis of the
census figures of the 2011 census as contemplated by Section 4
and sub-section (1) of Section 9 of the Delimitation Act, 2002 as
amended by clause (b) of sub-section (1) of Section 62 of the
J&K Reorganisation Act. [Para 32][542-H; 544-A-C]
3.2. The Delimitation Act, 2002 contemplates the
constitution of only one Delimitation Commission and not more
than one. The Delimitation Act, 2002 was made applicable for
the first time to the State of Jammu and Kashmir with effect from
31st October 2019. Even the Delimitation Acts of 1962 and 1972
were not applicable to the State of Jammu and Kashmir. By virtue
of the J&K Reorganisation Act, not only provisions of the
Delimitation Act, 2002 were made applicable to the Union
Territory of J & K, but a mandatory duty of readjustment of the
constituencies in the Union Territory both of the Legislative
Assembly and Parliament was entrusted to the Delimitation
Commission by sub-Sections (2) and (3) of Section 62. Till 31st
October 2019, the Delimitation Commission for the State/Union
Territory of J & K under the Delimitation Act, 2002 could not
have been established as the said enactment was not made
applicable to the State of Jammu and Kashmir till then. [Para
33][544-D-E]
3.3. Sub-section (6) of Section 10 of the Delimitation Act,
2002 uses the word "endeavour". Section 10A of the Delimitation
Act, 2002 itself indicates that the time limit of 31st July 2008 fixed
under sub-Section (6) of Section 10 is not sacrosanct as it confers
a power on the Hon'ble President to defer the delimitation
exercise in a State under certain circumstances. Thus, the time
limit provided in sub-section (6) of Section 10 was never intended
to be mandatory. While amending Section 2(f) of the Delimitation
Act by the J&K Reorganisation Act, sub-section (6) of Section
10 has not been amended for enlarging the period provided
thereunder. However, the intention of the legislature as reflected
in sub-sections (2) and (3) of Section 62 of the J&K
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Reorganisation Act is crystal clear. The very fact that the duty of
making the readjustment as per sub-sections (2) and (3) of Section
62 on the basis of the 2011 census figures has been entrusted to
the Delimitation Commission suggests that the legislature
intended that the Delimitation Commission for the Union Territory
of Jammu & Kashmir will remain unaffected by the requirement
of completing the exercise by the end of July 2008. The provisions
of sub-Sections (2) and (3) of Section 62 will have to be interpreted
in a manner that gives effect to the intention of the legislature. If
it is held that due to the failure of the legislature to modify the
time limit provided in sub-Section (6) of Section 10 of the
Delimitation Act, 2002, the Central Government is powerless to
appoint a Delimitation Commission for the newly created Union
territory, the provisions of Section 62 of the J&K Reorganisation
Act will be rendered nugatory. A statute cannot be interpreted in
a manner that will render some of its provisions otiose. A statute
must be construed and interpreted in such a manner as to make
it workable. Therefore, the argument based on sub-Section (6)
of Section 10 of the Delimitation Act 2002 will have to be rejected.
[Para 34][544-H; 545-A-E]
3.4. Articles 2 and 3 of the Constitution enable the
Parliament to create new States and Union territories. Accordingly,
the two new Union territories have been created. The J&K
Reorganisation Act which created the two new Union territories
assigns the role of readjustment of constituencies to the
Delimitation Commission under the Delimitation Act, 2002.
Article 4 of the Constitution permits the Parliament to
incorporate such provisions in the law made in accordance with
Article 3 for the formation of new States and Union territories,
which may be necessary to give effect to the provisions of the
law. Such a law may also contain provisions as to representations
in Parliament and in the Legislature of the State or States affected
by such law. Therefore, such law which is made under Article 3
can always provide for readjustment of the Constituencies in the
newly constituted States or Union territories through the
Delimitation Commission. Hence, there is no illegality associated
with the establishment of the Delimitation Commission under
the impugned Order dated 6th March 2020. [Para 35][545-F-H;
546-A]
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3.5. Under the notification dated 6th March 2020, the
appointment of the Chairperson of the Delimitation Commission
who was a retired 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
Chairperson till the task of delimitation/readjustment was
completed. The Delimitation Act, 2002 is silent about the term
of the appointment of the Chairperson. [Para 36][546-B-C]
Exclusion of the North-Eastern States from the purview of
the notification dated 6th March 2020
4.1. Another challenge 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 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 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
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regarding the said discrepancies. Therefore, the said letter was
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 by one more year by the
second impugned notification dated 3rd 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 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 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. [Para 37][546-D-H; 547-A-E]
4.2. 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. [Para 39][548-B]
4.3. 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
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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. [Para 40][548-C-F]
4.4. 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.
[Para 41][548-G]
4.5. 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 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. [Para 42][548-H; 549-A-B]
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4.6. 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 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. [Para 43][549-C-E]
4.7. Reliance placed on the opinion of the Attorney General
is misplaced as it deals only with the provisions of the A.P.
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. [Para 44][549-FG]
4.8. A vague attempt was made by 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 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
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of the Delimitation Act 2002 in its applicability to the newly formed
Union Territories by substituting the year 2001 with 2011. [Para
45][549-G-H; 550-A]
4.9. There is absolutely no merit in any of the contentions
raised by the petitioners. 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. The issue of the validity of the exercise of the said powers
is the subject matter of petitions pending before this Court.
Therefore, this Court has not dealt with the issue of validity.
Nothing stated in this judgment shall be construed as giving
imprimatur to the exercise of powers under clauses (1) and (3) of
Article 370 of the Constitution. [Para 46][550-B-C]
Engineering Kamgar Union v. Electro Steel Casting,
2004 (6) SCC 36; Mangal Singh & Anr. v. Union of
India, 1967 (2) SCR 109; Meghraj Kothari v.
Delimitation Commission & Ors., 1967 (1) SCR 400 -
referred to.
Case Law Reference
2004 (6) SCC 36
referred to
Para 9(g)
1967 (2) SCR 109
referred to
Para 9 (r)
1967 (1) SCR 400
referred to
Para 10(f)
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
237 of 2022.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
Ravi Shankar Jandhyala, Sr. Adv., Sunny Kumar, Sriram P., Advs.
for the Petitioners.
Tushar Mehta, SG, K.M. Nataraj, ASG, Shailesh Madiyal, Kanu
Agrawal, Ms. Neela Kedar Gokhale, Saurav Roy, Nakul Chengappa K
K, Ms. Akriti A Manubarwala, Parth Awasthi, Vaibhav Sabharwal,
Sudhanshu Prakash, Ms. Vinayaka S Pandit, Rajan Parmar, Akshay
Kumar, Arvind Kumar Sharma, Gurmeet Singh Makker, Ms. Taruna
Ardhendumauli Prasad, Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua,
Advs. for the Respondents.
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The Judgment of the Court was delivered by
ABHAY S. OKA, J.
1. The main challenge in this writ petition under Article 32 of the
constitution of India is to the legality and validity of the action of
constituting a Delimitation Commission for the Union Territory of Jammu
and Kashmir under provisions of the Delimitation Act, 2002 and the
exercise of delimitation undertaken by the Commission.
RELEVANT FACTS
2. The Constitution (Application to Jammu and Kashmir) Order,
2019 bearing C.O. No.272 was issued by the Hon'ble President of India
on 5th August 2019. The said order was issued in the exercise of powers
conferred by clause (1) of Article 370 of the Constitution of India. The
said order directed that all the provisions of the Constitution, as amended
from time to time, shall apply in relation to the State of Jammu and
Kashmir, subject to modifications made to Article 367 as set out in the
said order. By the said order, Clause (4) was added to Article 367 providing
that the expression "Constituent Assembly of the State referred to in
clause (2)" in the proviso to clause (3) of Article 370 of the Constitution,
shall be read as "Legislative Assembly of the State". On 6th August
2019, a declaration under Clause (3) of Article 370 of the Constitution
bearing C.O.No.273 was made by the Hon'ble President of India on the
recommendation of the Parliament, by which it was declared that all the
clauses of Article 370 shall cease to be operative.
3. The Jammu and Kashmir Reorganisation Act, 2019 (for short,
'the J&K Reorganisation Act') was enacted which provided for the
reorganisation of the State of Jammu and Kashmir by dividing it into two
Union Territories. A new Union Territory of Ladakh was created
comprising territories of Kargil and Leh Districts in the erstwhile State
of Jammu and Kashmir. The Union Territory of Jammu and Kashmir
(for short, 'the Union Territory of J & K) was formed comprising the
existing State of Jammu and Kashmir other than Kargil and Leh Districts.
The J&K Reorganisation Act came into force with effect from 31st
October 2019. By virtue of Section 13 thereof, Article 239A of the
Constitution of India which was earlier applicable only to the Union
Territory of Puducherry, became applicable to the Union Territory of J
& K. Article 239A confers a power on the Parliament to enact a law for
creating a legislature for the Union Territory.
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4. The Delimitation Act, 2002 which was not applicable to the
erstwhile State of Jammu and Kashmir, was made applicable by virtue
of Section 62 of the J&K Reorganisation Act to the newly formed Union
Territory of J&K. On 6th March 2020, the Central Government
constituted a Delimitation Commission under Section 3 of the Delimitation
Act, 2002 for the purpose of delimitation of Assembly and Parliamentary
Constituencies in the Union Territory of J & K as well as the States of
Arunachal Pradesh, Assam, Manipur and Nagaland. The Commission
was headed by a retired Judge of this Court. The Election Commissioner
and the State Election Commissioner were made ex-officio members of
the Delimitation Commission.