P MASTANAIAH Vs. DELIMITATION COMMISSIONER NEW DELHI

JUDGEMENT

(1.) This is an appeal against the judgment of our learned brother, Gopalrao Ekbote, J., dismissing a Writ Petition filed by the appellant challenging a notification of the Delimitation Commission issued under Section 10 of the Delimitation Commission Act, 1962. It appears that three seats had to be reserved for the Nellore District, and the question that the Delimitation Commission had to decide was as to which of the constituencies these seats have to be allotted or assigned. Prior to the present delimitation, it is stated that Gudur, Sulurpet, and Venkatagiri each had one reserved seat for scheduled castes. This time, the Delimitation Commission instead of assigning or allotting one reserved seat to Gudur, has allotted the same to Sarvepalli, which has a general population of 1,33,140 and a scheduled castes population of 30,483 while Gudur has a general population of 1,27,566 and a scheduled castes population of 32, 481. The challenge is with regard to this change in the allotment of the reserved seat to Sarvepalli in preference to Gudur which admittedly has a slightly higher proportion of scheduled castes population compared to the general population. We may state that the difference in the proportion of scheduled castes population in the constituencies of Gudur and Sarvepalli in 2.3 per cent, Gudur having 25.46 per cent and Sarvepalli having 23.16. It may also be noticed that as compared to Venkatagiri which has 23.07 per cent of scheduled castes population, Sarvepalli has a slightly higher percentage of 23.16. The Commission under S. 5 of the Act has to associate with itself for the purpose of assisting it in its duties in respect of each State, nine persons, four of them shall be members of the House of the People representing that State and five shall be members of the Legislative Assembly of that State. Once the allotment of seats has been made for each State, Constituencies are delimited in that State and the process of allotting reserved seats to those constituencies has to be taken up by the Commission. Section 9 of the said Act deals with the delimitation of these constituencies in the following terms:-

(2.) It has been denied that the procedure laid down under S.9 has not been followed. The Delimitation Commission held its public sittings, heard the objections, and took into consideration the factors enumerated under S.9 in assigning the Scheduled Castes seats to the respective constituencies. Mr. Chowdarys main contention is that our learned brother, Gopalrao Ekbote, J., was in error in holding that an order published as a notification under S.10(2) of the Act would have the force of law under Art. 329 of the Constitution. He submits that Art. 329 only gives immunity to that law which deals with allotment of seats and nothing else. The reservation of seats according to him is not an allotment of seats within the meaning of Art. 329 of the Constitution. Consequently, the decision that an order of reservation of seats within the meaning of Art. 329 and could be called in question . In our view, it is unnecessary to go into this question because our learned brother, Gopalrao Ekbote, J., has also on merits held against the appellant. It is un-disputable that when an Authority has been constituted under an Act, the provisions of which have not been challenged, and that Authority has followed the procedure prescribed, particularly that referred to under Sec. 9 (2) of the said Act, and having heard the public representations and objections, determined the question, its acts cannot be called in question unless it can be said that it has not taken into consideration the factors specified in Sec. 9 or its decisions are arbitrary. But none of these objections have been alleged against the Commission. All that Mr. Chowdary contends is that when Gudur has a higher percentage of Scheduled Castes population, it should not have been deprived of having a reserved constituency in preference to Sarvepalli which has a lesser percentage of Scheduled Castes population. Mr. Ramachandra Rao contends that this is not the position. If the contention of Mr. Chowdary is upheld, what it amounts to is that in all cases where there is a higher percentage of Scheduled Castes population, though the margin of percentage may be negligible, the Delimitation Commission must of necessity choose only that constituency and nothing else. This interpretation would leave no discretion to the Commission, a position which Mr. Chowdary does not contend for. It will be observed that the language of Sec. 9(1) (c) itself shows that, as far as practicable, the proportion of their population to the total population should be taken into consideration. What is practicable in the circumstances is a matter which is within the jurisdiction of the Delimitation Commission with which are associated members of the Assembly. We cannot accept the contention that more higher percentage of Scheduled Castes in any constituency alone should be a guiding factor, which, if adopted, would be defeating the very object of the provisions of Sec. 9 of the said Act. One of the factors that has been taken into consideration by the Commission is that if Gudur is given the reserved constituency, all the three reserved constituencies would be contiguous. If percentage factor is taken, Gudur, Sarvepalli and Sulurpet will have to be given, leaving out Venkatagiri Constituency, which will be completely separated. From a perusal of the plan, it would appear that even if Gudur is excluded, these three constituencies are staggered round Gudur itself making an equitable distribution of the reserved seats. We do not think that it is within the purview of this Court to go into the questions of merit, the jurisdiction of which has been exclusively vested by the law in the Delimitation Commission.

(3.) For these reasons, we dismiss the writ appeal. Advocates fee Rs. 100.