MAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HELD The next contention, raised by the learned counsel for the appellants is that when once the wards/constituencies have been demarcated by the Collector vide Annexure 1 and displayed on the Notice Board of Panchayat Samiti under the Rules then he had no power under the Act or the Rules to cancel that Notification and issue a fresh Notification like Annexure 4 because the Notification Annexure 1, issued under rule 4 of the Rules, had become final. There is one fallacy in this argument. The Notification Annexure 1, issued by the Collector after a meeting held on 18. 10. 94, is not a Notification determining the wards or the constituencies of the Panchayat Samiti issued under rule 3 but it is a notification identifying and allocating the seats reserved for Scheduled Castes, Scheduled Tribes, O. B. C. , Women and General categories. The Notification determining the wards and the constituencies was issued earlier which has neither been placed on record nor has it been challenged by the appellant-petitioners. As the Notification Annexure 1 or Annexure 4 is not relating to "determination of the Wards or the Constituencies", therefore, the contention, raised by the learned counsel for the appellants, is devoid of any force. These Notifications relate to the reservation and allocation of the constituencies for Scheduled Castes, Scheduled Tribes, Categories and has no concern with the demarcation. In the Notification Annexure 1. , six constituencies were reserved for Scheduled Castes candidates and out of these six constituencies, four were reserved for women candidates. As per rule 6 of the Rules this reservation of four constituencies for women out of the six constituencies reserved for Scheduled Castes candidates, was in excess. Only two, i. e. , l/3rd of the constituencies reserved for Scheduled Castes candidates could have been reserved for women candidates and, therefore, this error, which crept in the Notification reserving four constituencies instead of two necessiated the cancellation of Notification Annexure 1. One more error crept in allocating and reserving of Nathraou and Keshugadha constituencies as Scheduled Castes Constituencies though these areas do not belong to this category as the number of the Scheduled Castes persons residing in these constituencies was less. This error, also, necessiated for the reconsideration and fresh allocation and identification of the reserved constituencies. On the re-determination of the constituencies in the decending order of percentage of Scheduled Castes persons these two constituencies were not found belong to the Scheduled Castes candidates while as per the Rules, the constituencies which fall in this category are Deriya and Shekhala. The taking out of these two constituencies Nathraou and Keshugadha from the category of the constituencies belonging to Scheduled Castes and declaring Deriya and Shekhala as the 'constituencies belonging to Scheduled Castes' and reserving two more constituencies for women candidates are the reasons which necessiated the cancellation and compelled the authority to re-determine the constituencies/wards reserved for Other Backward Classes, Women and General Category by the Lottery System. The power to issue a Notification includes the power to rescind, vary, modify or amend a Notification. In the absence of any provision in the Act or the Rules empowering the authority to vary or rescind the order made under the Rules, the provisions of Section 23 of the General Clauses Act can be pressed into operation if the circumstances so necessiated, but, however, the procedural formalities have to be followed and it cannot be circumvented. Section 23 of the General Clauses Act reads as under: " 23 Power to make or issue includes power to add, to amend, vary or rescind orders etc. Where, by any law, a power to make or issue orders, rules, regulations, schemes, forms, bye- laws or Notification is conferred then that power includes the power exercise able in the like manner and subject to the sanction or condition (if any) to add, to amend, vary or rescind any orders, rules, regulations, schemes, forms, bye-laws or notification so made or issued. " Thus, where the cancellation of the Notification already issued is legitimately necessary and it is required to make the thing practicable to the peculiar conditions of the case for carrying it into operation and affects the election process then the earlier order can be cancelled and an authority, who has been vested with the power to issue a Notification, has power to cancel or withdraw the earlier Notification if material error in issuing the earlier Notification is there. The power to do a particular thing includes the power to undo that thing. The District Election Officer (Collector, Panchayat), Jodhpur, had power to allocate and reserve seats in the Gram Panchayat if he finds that some mistake has been committed (i) in reserving a particular constituency for a particular class which actually does not belong to that class; and (ii) allocation of more constituencies for women in the Scheduled Castes Constituencies, then he has all powers to rescind that notification which was not correct and to issue a fresh Notification re-distributing the reserved seats and correcting the error which has crept-in. Power to rescind a notification is without any limitation, but, however, before issuing the fresh notification he has to observe the procedural formalities which are required to be followed. Rules 5,6 and 7 of the Rules provide procedure for the reservation of the constituencies and that has to be followed while making reservation. That procedure has been followed by the District Election Officer (Collector, Panchayat), Jodhpur, before issuing the Notification Annexure 4 and, therefore, Annexure 4 does not suffer from any infirmity.

(2.) THE next ground, raised by the learned counsel for the appellants, is that there was no change in the number of the seats reserved for Other Backward Classes and if at all there was some change then that change was in the case of reservation of the seats for Scheduled Castes and the Women candidates and, therefore, there was no necessity of applying the lottery System (Draw of Lots) so far as the reservation of the constituencies for Other Backward Classes is concerned. THE two constituencies, namely, Nathraou and keshugadha were taken-out from the Scheduled Castes Constituencies and were included in the General Category. Two constituencies namely, Deriya and Shekhara, which were the constituencies of General Category, were included in the Constituencies reserved for the Schedule Castes. Earlier four constituencies out of the six constituencies were reserved for Scheduled Castes while only two constituencies could have been reserved for women in this category. Excluding two constituencies reserved for Women from this category resulted into the increase of the reserved constituencies for women from six to eight. By these changes, the whole complexion of reservation was changed, which necessiated the authorities to re-determine the reserved constituencies again by the Lottery System. THE law requires that before issuing a Notification for the reservation of the seats of Scheduled Castes, Scheduled Tribes, Other Backward Classes and Women etc. , the procedure provided under rules 5, 6 and 7 of the Rules has to be followed and in pursuance to that it was necessary for the authorities to have determined the reservation in accordance with the procedure provided under rules 5, 6 and 7 of the Rules and, therefore, in the meeting held on 14. 2. 94 for the identification, allocation and reservation of the constituencies, the procedure under rules 5, 6 and 7 were followed and thereafter Annexure4 was issued. No illegality, therefore, has been committed by the Authority in Drawing the Lots again for the determination of the O. B. C. constituencies, also. THE work had been undertaken by the authorities in accordance with law as it was necessiated to correct the errors which crept-in at the time of identifying and allocating the constituencies to various categories while issuing the Notification Annexure 1. THE Notification Annexure 1 was, therefore, cancelled and fresh Notification Annexure 4 was issued. THE appellants, therefore, cannot claim any benefit out of the Notification Annexure 1 dated 18. 10. 94 which was later-on cancelled and the fresh Notification Annexure 4 was issued.