G D SHARMA Vs. ELECTION COMMISSIONER OF INDIA

JUDGEMENT

(1.) BY our short order dated 8th of June, 1977. we dismissed the writ petition in limine stating therein that the detailed reasons shall follow. We now propose to give those detailed reasons.

(2.) THE petitioner who is practising as an Advocate in the High Court of Jammu and Kashmir at Jammu has filed this writ petition challenging the Delimitation of the 76 Assembly Constituencies in the State by Order No: 46 dated 17 -10 -1975 on various grounds. In the prayer clause of the petition, the petitioner has prayed as follows: i) to declare Section 2 of the J&K Constitution 12th Amendment (State Act No: 29 of 1975) amending Section 47(2) of the Jammu and Kashmir Constitution as being beyond the Constituent powers of the Jammu and Kashmir Legislature. ii) to restore to its original position Section 47(2) of the J&K Constitution as it stood before the Amendment that was carried out by the J&K Constitution 12th Amendment; iii) to declare Section 2 of the J&K Representation of the People (Amendment) Act of 1975 (State Act No: 23 of 1975) amending Section 4(2) of the J&K Representation of People Act of 1957 (State Act No. 4 of 1957) as being beyond the legislative competence of the State Legislature ; iv) to restore to its original position Section 4(2) of the Act No: 4 of 1957 as it stood before the amendment by the Act No: 23 of 1975; v) to declare that the Delimitation Commission, India as having no jurisdiction to delimit the J&K State Assembly Constituencies because of the non -compliance of the provisions of Section 3(1) of Act No: 4 of 1957 and thus all its proceedings are unauthorised and void ; vi) to declare the Order No: 46 dated October 17, 1976 of the "Delimitation Commission, India" thereby delimiting the 76 Assembly Constituencies in the J&K State as being inoperative and invalid ; vii) to order the concerned Respondents not to hold the forthcoming Assembly Elections on the basis of the said Order No: 46 dated October 17, 1975 by quashing the programme/recommendation as conveyed, by the respondent No. 1 to the respondent No. 3 and if respondent No. 3 also issues a notification for the holding of the said elections, to quash the same also; viii) to direct the concerned respondents to constitute a fresh Delimitation Commission in accordance with the provisions of law with directions to allot the number of seats as are legally allotable to the Jammu Division and the Kashmir Division of the J&K State; ix) to pass such other, further orders or directions as deemed fit and proper in the nature and circumstances of the case ; x) to award the costs of this petition.

(3.) THE precise grievance, emerging from the petition is, that the delimitation of the Assembly Constituencies in Jammu and Kashmir State, carried out in accordance with, the notification (Order No. 46 dated 17 -10 -1975) issued by the "Delimitation Commission of India" is wholly illegal, void and inoperative It is maintained that the Delimitation of the Assembly Constituencies has not been done by any commission appointed by the Governor of Jammu and Kashmir under Section 3 of Jammu and Kashmir Representation of the People Act, 1957 but by the Delimitation Commission of India appointed under the provisions of the "Delimitation Commission Act, 1972", which Act has no application to the State in relation to the delimitation of the Assembly Constituencies since the Act applies to the State of Jammu and Kashmir only in so far as delimitation of parliamentary constituencies is concerned. To quote the petitioner in his own words: "That the petitioner most respectfully submits that the Order No. 46 dated October 17, 1975 as published in the Government Gazette dated October 20, 1975 is by the "DELIMITATION COMMISSION, INDIA", New Delhi. The "Delimitation Commission, India" New Delhi is a creature of the Delimitation Act of 1972 (Central Act No. 76 of 1972) which is not competent, to delimit the Assembly Constituencies of the J&K State (though it can delimit, and it has actually delimited, the Parliamentary Constituencies of the J&K State). The Delimitation. Commission which can delimit the Assembly Constituencies in the J&K State is the one which has to be constituted under Section 3(1) of the Act No. 4 of 1957 by the Respondent No. 3".