ORDER
A.K. Mathur, C.J.
1. The petitioners by this writ petition have prayed that sections 13(4), (5) and (6); 17(2), (3) and (4), 23(3), (4) and (5) and 30(3), (4) and (5) of the M. P. Panchayat Raj Adhiniyam, 1994, as also the Rules 4 and 15 of the M. P. Panchayat Election Rules, 1994, may be declared as ultra vires.
2. This is a public interest litigation filed by one Ramlal and others. They claimed themselves to be social and political workers and are very keen to contest the elections for the posts of Panch, Sarpanch, Members of Janpad Panchayats and Membership of District Panchayat and its President. Therefore, they have filed this public interest litigation challenging the aforesaid provisions of the M. P. Panchayat Raj Adhiniyam, 1993 and Rules framed thereunder known as M. P. Panchayat Rules, 1995 being ultra vires of Articles 14, 15 and 16 of the Constitution of India. Suffice it to say that M. P. Panchayat Raj Adhiniyam, 1993 (Act No. 1 of 1994) has been framed by the State Legislature in exercise of the power under Article 243 of the Constitution of India appearing in Part-IX of the Constitution which was inserted by the Constitution (73rd Amendment) Act, 1992, in which this new Chapter has been added providing detail democratic process by strengthening the Panchayats and Gram Panchayats etc. The basic argument of the learned counsel for the petitioner was that it is discriminatory and violative of Article 15 of the Constitution of India. Section 13 of the M. P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as the Adhiniyam' in brevity) deals with the constitution of Gram Panchayat. Sub-section (4) of section 13 lays down that seats shall be reserved in every Gram Panchayat for the Scheduled Castes, and the Scheduled Tribes and the number of seats so reserved shall bear, as nearly as may be the same proportion to the total number of seats to be filled by direct election in that Gram Panchayat as the population of the Scheduled Castes or the Scheduled Tribes in that Gram Panchayat bears to the total population of that area and such seats shall be allotted by the prescribed authority by rotation to different wards in that Gram Panchayat, in the prescribed manner. Sub-section (5) provides that not less than one third of the total number of seats reserved under sub-section (4) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes or other Backward Classes. Sub-section (6) of section 13 provides that not less than one-third including the number of seats reserved for women belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes of the total number of seats to be filled by direct election in every Gram Panchayat shall be reserved for women and such seats may be allotted by the prescribed authority by drawing of lots and by rotation to different wards in a Gram Panchayat in the prescribed manner. Section 17 prescribes election of Sarpanch and Up-Sarpanch. Sub-section (2)(i) of section 17 provides that such number of seats of Sarpanchas of Gram Panchayats shall be reserved for Scheduled Castes and Scheduled Tribes in the Gram Panchayat within the block which bears the same proportion to the total number of Sarpanchas in the block as the proportion of the Scheduled Castes and Scheduled Tribes in the block bears to the total population of the block. It further provides that where the total population of Scheduled Castes and Scheduled Tribes in the Block is less than fifty percent. Twenty Five percent of seat of Sarpanchas of Gram Panchayats within the Block shall be reserved for other backward classes. It also provides that not less than one third of the total number of seats of Sarpanchas within the block shall be reserved for women. Section 30 prescribes division of District into constituencies. Sub-section (3) of section 30 provides that seats shall be reserved for the Scheduled Castes and the Scheduled Tribes. Section 30(4) says that not less one-third of the total number of seats so reserved shall be reserved, for women belonging to the Scheduled Castes or, the Scheduled Tribes; or other Backward Classes, as the case may be, sub-section (5) says that not less than one-third (including the number of seats reserved for women belonging to Scheduled Castes, Scheduled Tribes, and other Backward Classes) of the total number of seats to be filled by direct election of Zilla Panchayat shall be reserved for women and seats may be allotted by the prescribed authority by drawing lots and by rotation to different constituencies in a Zilla Panchayat in the prescribed manner.
3. By reference of these aforesaid provisions, the idea is that the constituency for Scheduled Castes/Scheduled Tribes should be constituted and a proper reservation should be made for women candidates which belong to the Scheduled Castes or Scheduled Tribes or Other Backward Classes as the case may be. This reservation is in order to effectuate the constitutional amendment inserted in Part-IX introducing 243-A to 243-K. The submission of the learned counsel for the petitioner that this kind of reservation will amount to exceed reservation more than 50% that is not the case here. By these reservations of the constituencies and the special provisions for the election not less than one-third of the total number of seats reserved for women candidates belonging to Scheduled Castes/Scheduled Tribes and Other Backward Classes by no stretch of imagination elect the seat more than 15% of reservation. Such kind of reservation is also not prohibited. Article 15(3) of the Constitution makes a special provision for women and children. Therefore, keeping in view of the aforesaid provisions, a resolution (sic : reservations) have been made for women and such reservation does not exceed more than 50%. Therefore, no exception can be taken to the reservation made in favour of the women candidates. Therefore, these provisions cannot be said to be ultra vires of Articles 14, 15 and 16 of the Constitution of India.
4. The learned counsel next submitted that the prescribed authority has made a reservation of seats in compliance of the sections 13 and 17 by issuing a notification (Annexure P/1). The learned counsel has submitted that the power under section 13 has been conferred on the Collector because the Prescribed Authority has been defined in section 2(xxi) of the Adhiniyam, which reads as under :-
'Section 2(xxi) 'Prescribed Authority' in any provision of this Act means such officer or authority, as the State Government may, by notification direct to discharge the functions of a prescribed authority under the provisions.'
Therefore, the notification No. 309-126-XXII-P-2-94 dated 5th March, 1994 (Annexure P/1) which has been issued by the Sub-Divisional Officer, is without jurisdiction. The arguments of the learned counsel appear to be justified.
5. No return has been filed by the State showing whether the Collector has power to delegate the statutory functions to the Sub-Divisional Officer or not. Annexure P/1 has been issued by the Sub-Divisional Officer as is apparent from the documents on record and this distribution of seat of among Scheduled Castes and Scheduled Tribes has been made by the Sub-Divisional Officer and not by the Collector as the prescribed authority appointed by the State. Therefore, apparently, this distribution of seat amongst the scheduled castes and scheduled tribes and also backward classes done by the Sub-Divisional Officer is without jurisdiction. It is needless to state that when statute lays down that the particular act shall be discharged in a particular manner then that has to be discharged in that manner alone and not otherwise. In the present case, it was the Collector, who has to do this function as a prescribed authority, but it seems that it has been done by the Sub-Divisional Officer under his direction that is totally without jurisdiction. No provision has been pointed out whether the Collector can delegate such functions to the Sub-Divisional Officer. The definition of the prescribed authority as reproduced above also does not confer any power on the prescribed authority to delegate its functions. Therefore, the Sub-Divisional Officer, who has acted on the directions of the Collector, i.e. District Election Officer, has acted without jurisdiction as this function cannot be delegated by the Collector/the District Election Officer.
6. Now the question is whether it would be proper exercise of jurisdiction to quash Annexure P/1 when the election has already taken place and more than two years have lapsed. It is true that technically, the contention of the learned counsel is justified that the distribution could have only been done by the prescribed authority, i.e. Collector and it has been done by the Sub-Divisional Officer which is illegal. But it will be still worse if this order is quashed and election is set aside, it will result into fresh elections of all the Gram Panchayats that will create more chaos, than it will be in interest of the institution. Therefore, we uphold the contentions of the learned counsel, but on this technical ground, we do not wish to upset the democratic set up as the election has already been taken place long back. However, in future such mistake should not be repeated. The copy of this order be sent to election department for information of all concerned.
7. In the result, we uphold the validity of the provisions of the Act and dismiss this petition. The amount of security, if any, shall be refunded to the petitioners.