2023 (5) TMI 1460

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....hantanu M Adkar, Adv. Ms. Rekha Rani, Adv. Ms. Bharti Tyagi, AOR Mr. Amrish Kumar, AOR Mrs. Aishwarya Bhati, A.S.G. Mrs. Deepabali Dutta, Adv. Mr. B.K Satija, Adv. Mrs. Chitrangada Rashtrawara, Adv. Mr. Jitendra Kumar Tripathi, Adv. JUDGMENT 1. The challenge in these appeals is to the judgment of the Division Bench of the High Court in a writ petition filed by the 6th and 7th respondents invoking Article 226 of the Constitution of India. Prayer (b) of the writ petition filed by 6th and 7th respondents was the only substantive prayer which reads thus: "The petitioners seek directions to respondents to follow rotation policy for the general elections to Panchayats in the State of Maharashtra to be held in the year 2007, in comp....

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....s to the extent of repugnancy with PESA, as indicated hereinabove, will have to be ignored for practical application. (6) It is not possible to treat Scheduled Area and other part from the same Panchayat, as separate zones, controlled by PESA and ZPPS Act, for the purpose of elections to Panchayats. (7) State Election Commission cannot deny responsibility of implementation of PESA in the field. In view of conclusions hereinabove, the writ petition will have to be and is accordingly allowed. Rule, which was made returnable forthwith by consent of the parties at the commencement of the arguments, is made absolute, by directing Respondent nos 1 and 2 to implement the provisions of PESA for the elections of P....

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....at manner there is a repugnancy between the relevant provisions of the 1961 Act and Section 4(g) of PESA. Thirdly, there is no challenge to the provisions of the 1961 Act and the rules framed thereunder in the writ petition. Therefore, obviously, the State had no notice of the contentions which were raised at a time of hearing of the writ petition regarding the validity of the 1961 Act. Even a notice was not issued to the Advocate General of the State. 9. Learned counsel appearing for the 6th and 7th respondents submits that the State legislature lacks legislative competence to enact the relevant provisions of the 1961 Act and the rules framed thereunder. 10. His second submission is that it was not necessary for the writ petitioners ....

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....gh Court ought not to have undertaken the exercise of going into the question of repugnancy. We fail to understand the propriety of the observation that the law departments of the State and the Union should have a dialogue to remove the discrepancy. Moreover, the High Court has not proceeded to strike down the relevant provisions which were held to be repugnant to PESA. It only directs that till the discrepancy is removed by the legislature, certain provisions of the 1961 Act and the rules framed thereunder shall be ignored. Such approach by the writ Court is not at all called for. Without holding that the statutory provisions are not constitutionally valid, the High Court could not have issued a direction not to implement the statutory pro....