SHIRPAL JAIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) In these two petitions the petitioners have sought directions from the Court to the State Election Commission to discharge its constitutional obligations under Article 243-K of the Constitution of India and for declaration that the provisions of Sections 28 and 29 of the Rajasthan Panchayat Raj Act, 1994 and Rules 59 and 61 of the Rajasthan Panchayati Raj Rules, 1994 be declared ultra vires being violative of Article 243-K of the Constitution of India.

(2.) Submission of the learned counsel for the petitioners is that under Article 243-K of the Constitution of India the superintendence, direction and control for preparation of electoral rolls for and the conduct of, all elections to Panchayats shall be vested in the State Election Commission. Thus it is constitutional duty of the State Election Commission to prepare the electoral rolls for the purposes of elections of the panchayats and to conduct all elections of the panchayats. The State Election Commission cannot leave these functions to be performed by any other authority. The State Government under Sections 28 and 29 of the Act read with Rules 59 and 61 of the Rules usurp all powers to itself, which is contrary to the spirit and mandate of the Article 243-K of the Constitution and the same be declared ultra vires of the Constitution.

(3.) To better appreciate the arguments advanced by the learned counsel for the petitioners, we may refer to the scheme of constitution of panchayats and the election to panchayat raj institutions under the Rajasthan Panchayati Raj Act, 1994 and the Rajasthan Panchayati Raj (Election) Rules, 1994 (for short 'the Act of 1994' and 'the Rules of 1994'). The panchayats are being constituted in Rajasthan at three levels; the panchayat at village level, the panchayat at intermediary level and the panchayat at district level. The panchayat at village level is called 'panchayat' which shall consist of a sarpanch and directly elected panchas from as many wards as are determined under sub-Section (2) of Section 12 of the Act. The sarpanch shall be elected by the electors of the whole panchayat circle. The panchayat shall also have an up-sarpanch who shall be elected by elected panchas. The panchayat at intermediary level is called 'panchayat samiti' which shall consist of directly elected members from as many territorial constituencies as are determined under sub-Section (2) of Section 13 and all members of the Legislative Assembly of the State, representing constituencies which comprise wholly or partly the panchayat samiti area. The elected members of the panchayat samiti shall elect two members from amongst themselves to be the 'pradhan and up-pradhan'. The panchayat at district level is called 'zila-parishad' which shall consist of directly elected members from as may territorial constituencies as are determined under sub-Section (2) of Section 14 and all members of the Lok Sabha and of the State Legislative Assembly representing constituencies which comprise wholly or partly the Zila Parishad area and all members of the Rajya Sabha registered as electors within the Zila Parishad area. The elected members of the Zila Parishad shall elect two members from amongst themselves to be 'pramukh' and up-pramukh'. Section 28 provides for election of pradhan and up-pradhan by elected members of the panchayat samiti. Sub-Section (2) of Section 28 lays down that the election of pradhan and up-pradhan and the filling up of the vacancies in the said offices shall be in accordance with such rules as may be made. Section 29 is in regard to the election of pramukh and up-pramukh of zila parishad by the elected members of the zila parishad. Sub-Section (2) of Section 29 lays down that the election of the pramukh of the up-pramukh of a zila parishad and the filling up of vacancies in the said offices shall be in accordance with such rules as may be made. Sections 28 (2) and 29 (2) of the Act authorise the State Government to frame Rules for the election of pradhan or up-pradhan and pramukh or up-pramukh respectively. Sub-section (2) of Section 17 of the Act of 1994 provides that the superintendence, direction and control of preparation of electoral rolls for, and the conduct of, all elections to the Panchayat Raj Institutions are vested in the State Election Commission.