# MEGHKAJ v. DELIMITATION COMM. (Mitter, /.) - **Citation:** [1967] 1 S.C.R. 400 - **Court:** Supreme Court of India - **Decided:** 1966-09-20 - **Case number:** Civil Appeal No. 84Jof 1966 - **Bench:** K. Subba Rao, M. Hidayatijllah, S. M. Sikri, J.M. B Shelat, G. K. Mittf.R - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/meghkaj-v-delimitation-comm-mitter-3836 - **Pages:** 16 ## Headnote Constitwion of India, 1950, Arts. 82, 327, 328 and 329-0rder under s. 9 of tlze Delimitation Cpmmission Act, 1962-publi.rlud under s. 10(1) -Whether Jaw under Art. 321-'fherefore '*'herher can be questioned in a court or whether Arr. 329 app/ie•. Delin1ltation Comn1ission Act, 1962, ss. 8, 9 and 10---Scope of. By a notificalion of 1he Delimitation Commission dated July 24, 1964 iJsued in 1erms of s. 10(1) of the Delimilation Commission Ac~ 1962, Ujja.in City, which had been a general constituency, was notified as reserved for the Schecluled Castes. The appeBant who was a resident of Ujjain and a citizen of India, 11led a petition under Art. 226 praying for a writ of certiorari for quashing the noli&cation on the ground that be had a right to be candidate for parliament from the Ujjatn Oty constituency which had been ta"-en away. The petition was rejected by the High Court on the short ground that the notifica1ion could not be questioned in any court because under Art. 329(a) of the Constitution the V3lidity of any law reJ.ating to ihe delimitation of coo!ltituencies or the allotment of sealc; lo such constituencies, made or purporting to bo made un-s. (1) to s. 10 of the Delimitation Commission Act. 1962 and recites that proposals of the Delimitation Commission for the delimitation of Parliamentary and Assembly constituencies in the State of Madhya Pradesh had been published on October 15, 1963 in the Gazette of India and in the official gazette of the State of Madhya Pradesh and that after considering all objections and suggestions the Commission determined that the territorial constituencies into which the State of Madhya Pradesh shall be divided for the purpose of elections to the House of the People and the extent of each such constituency shall be as shown in Table A. Respondent No. 1 to the pet1t1on was the Delimitation Commission, respondent No. 2 was its Chairman and respondents Nos. 3 and 4 were its members. The petition alleges many acts of omission and commission on the part of the Commission and its Chairman, but we are not here concerned with all that. If we come to the conclusion that the High Court was not justified in rejecting the petition on the short ground noted above, we shall have to send the case back to the High Court for trial on merits. According to the petitioner, Ujjain city has been from the inception of the Constitution of India a general constituency and by the fact of the city being converted into a reserved constituency his right to be a candidate for Parliament from this constit ucncy has been taken away. In order to appreciate the working of the Delimitation Commission and the purpose which it serves reference must be made to the following Art'fcles of the Constitution. Article 82 provides that- "Upon the completion of each census, the allocation of seats in the House· of the People to the States and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine: Provided that such readjustment shall not affect representation in the House of the People until the dissolution of the then existing House." This Article is a verbatim copy of clause (3) of Art. 81 of the Constitution before its amendment in 1956. A B c D E F G H c D E G H MEGHRAJ v. DELIMITATION COMM. (Mitter, !.) 403 Article 327 of the Constitution provides that- "Subject to the provlsions of this Constitution, Parlia· ment may from time to t;me by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matiers necessary for securing the due constitution of such House or Houses." It was argued before us that the Delimitation Commission Act, 1962, was not passed by Parliament under Art .. 327, but under Art. 82 and as such courts of law are not precluded from entertaining the question as to the validity of a notification under the Delimitation Commission Act because of the opening words of Art. 329. Article 82, however, merely envisages that upon the completion of each census the allocation of seats in the House of the People and the division of each State into territorial constituencies may have to be readjusted. It is Art. 327 which enjoins ·upon Parliament to make provision by law from time to time with respect to all matters relating to or in connection with elections to either House of Parliament .... delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. The preamble to the Delimitation Commission Act 1962 shows that it is an Act to provide for the readjustment of the all ;- cation of seats in the House of the People to the States, the total number of seats in the Legislative Assembly of each State, the division of each State into territorial constituencies for. elections to the House of the People and Legislative Assemblies of the States and for matters connected therewith. Article 82 only foreshadows that readjustment may be necessary upon completion of each census, but Art. 327 -gives power to Parliament to make elaborate provision for such readjustrr1ent including delimitation of constituencies and all other matters connected therewith as also elections to either House of Parliament. Section 3 of the Delimitation Commission Act (hereinafter referred to the Act) enjoins upon the Central Government to constitute a Commission to be called the Delimitation Commission as soon as may be after the commencement of the Act. Section 4 of the Act provides that it is the duty of the Commission to readjust on the basis of the latest census figures the allocation of seats in the House of the People to the several States ...... alld the division of each State into territorial constituencies for the purpo~e of elections to the House of the People. Section 8 of the Act iriakes it obligatory on the CommiSsion to determine by order, on the basis of the latest census figures, and having regard to the provisions of Arts. 81, 170, 330 and 332, the 404 SUPREME COURT REPORTS (1967] 1 s.c.R. number of seats in the House of the People to be allocated to each State and the number of scats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State as also the total number of seats to be assigned to the Legislative Assembly of each State and the number. of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State. The delimitation of the constituencies is provided for in s. 9, sub-s. (1) of the Act which reads:- "The Commission shall, in the manner herein provided, then distribute the seats in the House of the People allocated to each State and the seats assigned to the Legislative Assembly of each State to single-member territorial constituencies and delimit them on the basis of the latest census figures, having regard to the provisions of the Constitution and to the following provisions, namely: (a) all constituencies shall, as far as practicable, be geographically compact areas, and in delimiting them regard shall be had to physical features, existing boundaries of administrative units, facilities of communication and public convenience; (b) every assembly constituency shall be so delimited as to fall wholly within one parliamentary constituency; (c) constituencies in which seats are reserved for the Scheduled' Castes shall be distributed in different parts of the State and located, as far as practicable, in-those areas where the proportion of their population to the total is comparatively large; and (d) constituencies in which seats are reserved for the scheduled Tribes shall, as far as practicable, be located in areas where the proportion of their population to the total is the largest." Under sub-s.(2) of the section the Commissicn shall publish its proposals for the delimitation of the constituencies together with the dissenting proposals, if. any, of an associate member, specify a date on or after which the proposals will be further considered and consider all objections and suggestions which may have ~ received by it before the day so specified. Thereafter its duty is by one or more orders to determine the delimitation of Parliamentary constituencies and the delimitation of assembly constituencies of each State. Publicity is to be given to the orders of the Commission under s. JO( I) of the Act. Sub-section (I) prescribes that each of its orders made under s. 8 or s. 9 is to be published in the Gazette of India and the official gazettes of the States conA B c D E F G H A B c D E F G H MEGHRAJ v. DBLIMITAnON COMM. (Mitter, J.) 405 cerned. Sub-section (3) provides that as soon as may be after such publication every such order shall be laid before the Houseof the People and the Legislative Assemblies of the States concerned. The legal effect of the orders is given in sub-ss. (2) and ( 4) of s. 10 of the Act. Under sub-s. (2) "upon publication in the Gazette of India, every such order shall have the force of law and shall not be called in question in any court". Under sub-s. (4) (omitting the irrelevant portion) the readjustment of representation of the several territorial constituencies in the House of the People or in the Legislative Assembly of a State and the delimitation of those constituencies provided for in any such order shall apply in relation to every election to the House or to the Assembly, a&. the case may be, held after the publication in the Gazette of India of that order and shall so apply in supersession .of the provisions relating to such representation and delimitation contained in the Representation of the People Act, 1950, and the Delimitation of Parliamentary and Assembly Constituencies Order, 1961. It will be noted from the above that it was the intention of the legislature that every order under ss. 8 and 9 after publication is to have the force of law and not to be made the subject matter of controversy in any court. In other words, Parliament by enacting s, 10(2) wanted to make it clear that orders passed under ss. 8 and 9 were to be treated as having the binding force of law and not mere administrative directions. This is further reinforced by sub-s. (4) of s. 10 according to which the readjustment of representatiorn of the several territorial constituencies in the House of the People and the delimitation of those constituencies provided for in any such order (i.e. under s. 8 or s. 9) was to apply in relation to every election to the House held after the publication of the order in the Gazette of India and these provisions contained in the order· were to supersede all provisions relating to such representation and delimitation contained in the Representation of the People A<:t,. 1950 and the Delimitation of Parliamentary and Assembly Constituencies Order, 1961. In effect, this means the complete effacement ·of all provisions of this nature which were in force before the passing of the orders under ss. 8· and 9 and only such orders were to hold the field. Therefore although the impugned notification was not a statute passed by Parliament, it was a law relating to the delimitation of constituencies or the allotment of seats to such consti-· tuencies made under Art. 327 of the Constitution. Our attention was drawn to Bill No. 9& or 1962 for providing: for readjustment of allocation of seats in the House of the People· to the States, the total number of seats in the Legislative Assembly of each State, the division of each State into territorial constituencies for elections to the House of the People and Legislative- 406 SUPREME COURT REPORTS [1967] I S.C.R. Assemblies of the States and for matters connected therewith and the statement of objects and reasons therefor as appearing in the Gazette of India Extraordinary, Part II, Section 2 of the year 1962 which mentions Arts. 82 and 170(3) of the Constitution. The said statement further shows that as the 1961 census had been completed a readjustment of the several matters earlier mentioned was necessary inasmuch as there had been a change in the population figures from the 1951 census. This, however, docs not mean that the Delimitation Commission Act was a law made under Art. 82. Article 82, as already noted, merely envisaged that readjustment might be necessary after each census and that the same should be effected by Parliament as it may deem fit, but it is Art. 327 which casts a duty on Parliament specifically to make provisiori with respect to all matters relating to or in connection with elections to either House of Parliament etc. the delimitation of constituencies and ail other necessary matters for securing the due constitution of such House or Houses. With regard to s. 10 (2) of the Act it was argued by counsel for the appellant that the order under s. 9 was to have the force of law, hut such order was not itself a law. To support this contention our attention was drawn to a judgment of the Supreme Court of Canada in His Ma;es1y 1he King v. William Singer('). There sub-s. (2) of s. 3 of the War Measures Act of 1914 provided that all orders and regulations made under this section shall have the force of law and shall be enforced in such manner and by such courts, officers and authorities as the Governor-in-Council may prescribe and may be varied, extended or revoked by any subsequent order or regulation. By s. 4 of the Act the Governorin-Council was empowered to prescribe the penalties that may be imposed for violating the orders and regulations under this Act and also to prescribe whether such penalties shall be imposed upon summary conviction or upon indictment. Purporting to act under the provisions of the War Measures Act the Governorin-Council made an order to the effect that no retail druggist shall sell or supply straight, Codeine, whether in powder, tablet or liquid form, or preparations containing any quantity of any of the narcotic drugs mentioned in Parts I and II of the Schedule to the Opium and Narcotic Drug Act, mixed with medicinal or other ingredients, except upon the written order or prescription therefor signed and dated by a physician, veterinary surgeon or dentist .... The order further provided that any person found in posse~sion of Codeine or preparation containing narcotic drugs mentioned in Parts I and II of the Schedule to the Opium and Narcotic Drug Act mixed with other medicinal or other ingredients, save and except under the authority of a licence from the Minister of Pensions and National Health shall be liable to the penalties provided upon (1) )1941) Canada law Reports, lll. A B c D E F G H A B c D E F G H MEGHRAJ v. DELIMITATION COMM. (Mitter, !.) 407 summary conviction under the provisions of s. 4 of the Opium and Narcotic Drug Act. TJ:ie Opium and Narcotic Drug Act which was a Dominion statute contained a schedule wherein narcotic drugs were enumerated, but which up to the date of the order in question did not contain Codeine. Under the provisions of that order a charge was laid against the respondent, a retail druggist, that he did without lawful excuse disobey an Act of the Parliament of Canada for which no penalty or other mode of punishment was expressly provided,. to wit; Paragraph two of regulations dated 11th day of September, 1939, of the War Measures Act, by wilfully selling Codeine, a narcotic drug mentioned in Part Two of the Schedule to the Opium and Narcotic Drug Act without first having had and obfained a written order or prescription therefor signed and dated by a physician, contrary to sec. 164, Criminal Code of Canada. Section 164 of the Criminal Code enacted specifically that the offence must consist in wilfully doing any act which was forbidden or omitting to do any act which was required to be done by an Act of the Parliament of Canada. In his judgment Rinfret, J. observed: (page .114) :- "It is an Act of the Parliament of Cauada which the guilty person must have disobeyed without lawful excuse." His Lordship agreed with the Trial Judge and with the majority of the Court of Appeal that in the premises s. 164 of the Criminal Code had no application and said:- "Of course, the War Measures Act enacts that the orders and regulations made under it "shall have the force of law. It cannot be otherwise. They are made to be obeyed and, as a consequence, they must have the force of law. But · · that is quite a different thing from saying that they will be deemed to be an Act of Parliament." Taschereaul' J. put the matter rather tersely (see. at p .. 124) :- "An order in Council is passed by .the Executive Council, and an Act of Parliament is enacted by the House of Comrnons· and by the Senate of Canada. Both are entirely different, and unless there is a provision in the law stating that the Orders in Council shall be considered as forming part of the law itself, or that any offence against the regulations shall be a violation of the Act, it cannot be said that the violation of an Order in Council i.S a violation of an ·Act of Parliament within the meaning of section 164 of the Criminal Code." The observations from the judgment of Taschereau, J. pofot out the difference between something which has the force of law as. 408 SUPREME COURT R.EPOR.TS [1967] I S.C.R;' .distinguished from an Act of Parliament itself. The Order in -Council in the Canadian case, although it had the force of law, was not a provision contained in an Act of Parliament and therefore although there was a violation of the Order in Council there was no violation of any section of an Act of the Parliament of the Dominion of Canada. Counsel for the appellant also drew our attention to the judgment of this Court in Sangram Singh v. Election Tribunal, Kotah, .Bhurey Lal Baya.( 1) There the Court had to consider the effect of s. 105 of the Representation of the People Act, 1951 (Act XLIH ·Of 1951) which provided that "every order of the Tribunal made under this Act shall be final and conclusive''. The contention there put forward was that this provision put an order of the Tribunal beyond question either by the High Court under Art. 226 of the Constitution or by the Supreme Court in appeal therefrom. It was further submitted that the intention of the Legislature was that the decisions of the Tribunals were to be final on all matters whether of fact or of law, and they could not be said to commit an error of law when acting within the ambit of their jurisdiction. They decided what the law was. This submission was turned -down by this Court and it was observed after referring to Hari Vishnu v. Ahmed lshaque(l) that "the Court laid down in general terms that the jurisdiction under Art. 226 having been conferred by the Constitution, limitations cannot be placed on it, except by the Constitution itself." Jn this case we are not faced with that difficulty because the ·Constitution itself provides under Art. 329(a) that any law relating to the delimitation of constituencies etc. made or purporting to be made under Art. 327 shall not be called in question in any court. Therefore an orde.r under s. 8 or 9 and published under s. IO(l) would not be saved merely because of the use of the expression .. shall not be called in question in any court". But if by the publi- -cation of the order in the Gazette of India it is to be treated as law made under Art. 327, Art. 329 would prevent any investigation by .any court of law. In dismissing the petition under Art. 226 of the Constitution the High Court of Madhya Pradesh relied exclusively on the decision of this Court in N.P. Punnuswami v. Returning Officer, Namakkal Constituency and others(') which proceeded on the basis of certain -concessions made. There the appellant was a person who had filed a nomination paper for election to the Madras Legislative Assembly from the Namakkal constituency which was rejected. The appellant thereupon moved the High Court under Art. 226 (I) )1955) 2 S.C.R. p. l at pp. 6 and 7. (2) )1955] l S.C.R. 1104. (3) )1952] S.C.R. 218. A B c D E F G H B c D II G H MEGHRAJ v. DELIMITATION COMM. (Mitter, J.) 409 of the Constitution praying for ,a writ of certiorai to quash the order of the Returning Officer rejecting his nomination paper and to direct the said officer to include his name in the list of vaild nominations to be published. The High Court dismissed the application on the ground that it had no jurisdiction to interfere with the order of the Returning Officer by rea5on of Art. 329 (b) of the Constitution. The Court pointed out (at p. 225) :- "A notable difference in the language used in Arts. 327 and 328 on the one hand, and Art. 329 on the other, is that while the first two articles begin with the words "subject to the provisions of this Constitution", the last article begins with the words "notwithstanding anything in this Constitution". It was conceded at the Bar that the effect of this difference in language is that whereas any law made by Parliament under Art. 327, or by the State Legis1atures under Art. 328, cannot exclude the jurisdiction of the High Court under Art. 226 of the Constitution, that jurisdiction is excluded in regard to matters provided for in Art. 329." Reference was also made by counsel to certain other concessions which appear at pp. 233 and 237 of the report. It will be noted, however, that the decision in that case did not proceed on the concessions made. The Court examined at some length the scheme of Part XV of the Constitution and the Representation of the People Act, f951 which was passed by the Parliament under Art. 327 of the Constitution to make detailed provision in regard to al matters and all stages connected with elections to the various Legislatures in the country. It was there argued that since the Representation of the People Act was enacted subject to the provisions of the Constitution, it could not bar the jurisdiction of the High Court to issue writs under Art. 226 of the Constitution. This was turned down by the Court observing:- "This argument, however,_ is completely shut out by reading the Act along with Art. 329(b). It will be noticed that the language used in that Article and in s. 80 of the Act is almost identical, with this difference only that the Article is preceded by the words "notwithstanding anything in this Constitution". (p. 232) The Court went on to observe at p. 233 :- _"It may be pointed out that Art. 329 (b) must be read as complimentary to lause (a) of that Article Clause (a) bars the jurisdiction of the courts with regard to such law as may be made under Arts. 327 and 328 relating to the delimitation of constituencies or the allotment of scats to such constituencies .... If Part XV of the 410 SUPREME COURT REPORTS [1967] l S.C.R. Constitution is a code by itself, i.e., it creates rights and provides for their enforcement by a special tribunal to the exclusion of·all courts including the High Court, there can be no. reason for asswning that the Constitution left one small part of the election process to be made the subject matter of contest before the High Courts and thereby upset the time schedule of the elections. The more reasonable view seems to be that Art. 329 covers all "electoral matters". An examination of ss. 8 and 9 of the Act shows that the matters therein dealt with were not to be subject to the scrutiny of any court of law. Section 8, which deals with the readjustment of the number of ,seats, shows that the Commission must proceed on the basis of the latest census figures and by order determine having regard to the provisions of Arts. 81, 170, 330 and 332, the nwnber of seats in the House of the People to be allocated to each State and the number of seats, if any. to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State. Similarly, it was the duty of the Commission under s. 9 to distribute the seats in the House of the People allocated to each State and the seats assigned to the Legislative Assembly of each State to single member territorial constituencies and delimit them on the basis of the latest census figures having regard to the provisions of the Constitution and to the factors enumerated in els. (a) to (d) of sub-s. (1). Sub-section (2) of s. 9 shows that the work done under sub-s. (I) was not to be final, but that the Commission (a) had to publish its proposals under sub-s. ( L) together with the dissenting proposals, if any, of an associate member, (b) to specify a date after which the proposals could be funher considered by it, (c) to consider all objections and suggestions which may have been received before the date so specified, and for the purpose of such consideration, to hold public sittings at such place ·or places as it thought fit. It is only then that the Commission could by one or more order, determine the delimitation of Parliamentary constituencies as also of Assembly constituencies of each State. In ·our view, therefore, the objection to the delimitation of constituencies could only be entertained by the Commission before the date specified. Once the orders made by the Commission under ss. 8 and 9 were published in the Gazette of India and in the official ~azettcs of the States concerned, these matters could no longer be reagitated in a court of law. There seems to be very good reason behind such a provision. If the orders made under ss. 8 and 9 were not to be treated as final, the effect would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from .court. to court. Section 10(2) of the Act clearly demonstrates the mten!Jon of the Legislature that the orders under ss. 8 and 9 published under B c D E Jl G H A B c D E F G H MEGHRAJ v. DELIMITATION COMM. (Mitter, J.) 411 s. 10 (I) were to be treated as law which was not to be questioned in any court. "It is true that an order under s. 8 or 9 published"under s. 10(1) is not part of an Act of Parliament, but its effect is to be the same. The situation here bears some comparison with what obtained in Harishankar Bag/a and another v. The State of Madhya Pradesh.(') There s. 3 of the Essential Supplies {Temporary Powers) Act, 1946, provided that the Central Government, so far as it appeared to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, might by order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. Under s. 4 it was open to the Central Government by notified order to direct that the power to make orders under s. 3 shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by such officer or authority subordinate to the Central Government or such State Government or such officer or authority subordinate to a State Government as may be specified in the direction". Section 6 of the Act read as follows:~ "Any order made under s. 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument ha,ing effect by virtue of any enactment other than this Act." Under powers conferred by s. 3 the Central Government promulgated on September 10, 1948, Cotton Textiles (Control of .Movement) Order, 1948. Section 3 of the said order provided that no person shall transport or cause .to be transported by rail, road, air, sea or inland navigation any cloth, yarn or apparel except under and in accordance with a general permit notified in the Gazette of India by the Textile Commissioner or a special transport permit issued by the Textile Commissioner. The appellant Harishankar Bagla and his wife were- arrn