Professional Documents
Culture Documents
IN
THE
HIGH COURT
AT
OF
PUNJAB
AND
HARYANA
CHANDIGARH
C.W.P. No. 18112 of 2015
Public Interest Litigation
OF
SR. NO.
DESCRIPTION
DATED
PAGE
COURT
NO.
1.
25/08/2015
FEE
-
2.
EVENTS
MEMO OF PARTIES
25/08/2015
50.00
3.
25/08/2015
4.
AFFIDAVIT
25/08/2015
5.
ANNEXURES
23/08/2015
P-1: Resolution
13/08/2015
P-2: Ordinance
13/08/2015
P-3: Notification
P-4:
Order
in
CWP
21/08/2015
17452 of 2015
6.
TOTAL
COURT
FEE
25/08/2015
NOTE:-
1. The main law points involved in this writ petition are at page
no.
Para no. 17 of the paper book.
2. Relevant Statutes/Rules:
a. Constitution of India;
b. Haryana Panchayti Raj Act, 1994
c. Haryana Panchayti Raj (Amendment) Ordinance, 2015
3. Any caveat received: No
4. Nature of Civil Writ Petition: Public Interest Litigation
Chandigarh
Dated: 25/08/2015
IN
THE
HIGH COURT
OF
PUNJAB
AND
HARYANA
AT
CHANDIGARH
OF
FEE MEMO
TOTAL COURT FEE
Chandigarh
Dated: 25/08/2015
LIST
14.08.2015
OF
DATES
AND
EVENTS:
25.08.2015
by
the
Honble
Governor
of
Chandigarh
Dated: 25.08.2015
IN
THE
HIGH COURT
OF
PUNJAB
AND
HARYANA
AT
CHANDIGARH
OF
PARTIES
OF
Respondents
Chandigarh
Dated: 25.08.2015
P/867/2011
MAH/5843/2011
ADVOCATES
COUNSEL FOR THE PETITIONER
M:9592771330/9855686442
mail@arjunsheoran.com
NO.
TO HOLD
OF
2015
AND
DECLARE
TITLED
HARYANA
APPROPRIATE
WRIT/WRITS,
ORDERS,
GOVERNOR,
HARYANA
VIOLATIVE
AND
DATED
ULTRA
14.08.2015
VIRES
OF
AS
THE
CONSTITUTION;
AND
ISSUE
APPROPRIATE
WRIT/WRITS,
ORDERS,
ORDINANCE
NO.
OF
2015,
AS
BEING
ISSUE
APPROPRIATE
WRIT/WRITS,
ORDERS,
DIRECTIONS TO HOLD AND DECLARE THAT SUBSECTION (AA) OF SECTION 175 OF THE HARYANA
PANCHAYATI ACT, 1994, SOUGHT TO BE INSERTED
VIDE
ORDINANCE
NO.
OF
2015,
AS
BEING
APPROPRIATE
WRIT/WRITS,
ORDERS,
DIRECTIONS TO HOLD AND DECLARE THAT SUBSECTIONS (T) OF SECTION 175 OF THE HARYANA
PANCHAYATI ACT, 1994, SOUGHT TO BE INSERTED
VIDE
ORDINANCE
NO.
OF
2015,
AS
BEING
APPROPRIATE
WRIT/WRITS,
ORDERS,
DIRECTIONS TO HOLD AND DECLARE THAT SUBSECTIONS (U) OF SECTION 175 OF THE HARYANA
ORDINANCE
NO.
OF
2015,
AS
BEING
APPROPRIATE
WRIT/WRITS,
ORDERS,
DIRECTIONS TO HOLD AND DECLARE THAT SUBSECTIONS (V) OF SECTION 175 OF THE HARYANA
PANCHAYATI ACT, 1994, SOUGHT TO BE INSERTED
VIDE
ORDINANCE
NO.
OF
2015,
AS
BEING
APPROPRIATE
WRIT/WRITS,
ORDERS,
DIRECTIONS TO HOLD AND DECLARE THAT SUBSECTIONS (W) OF SECTION 175 OF THE HARYANA
PANCHAYATI ACT, 1994, SOUGHT TO BE INSERTED
VIDE
ORDINANCE
NO.
OF
2015,
AS
BEING
AND
STAY
THE
OPERATION
OF
THE
IMPUGNED
RESPECTFULLY SHOWETH:
1.
2.
governmental
agencies,
funding
agencies,
foreign
Sachar,
Prof.
Rajni
Kothari,
well
known
jurist
KG
vide
CWP
No.
1827
of
2004,
the
PUCL
has
authorized
its
General
Secretary,
Shri
in a wrongful,
10
Haryana
Panchayati
The
present
Writ
Petition
under
Article
226
of
the
society,
i.e.
Scheduled Caste,
of
State
of
Haryana.
That
the
Petitioner
11
in
the
Official
Gazette
been
relieved
from
the
12
13
10.
5 of 2015
promulgated
prescribed
on
14.08.2015
has
interalia
14
Ordinance
lays
educational
and
other
II.
examination
from
any
recognized
institution board.
Provided that in case of a woman candidate or a
candidate
belonging
to
Scheduled
Caste,
the
15
11.
published in
14.08.2015 is
13.
development.
That in spite of calls for a rethink, the Respondent State has
failed to take into consideration that this ordinance would
deny the opportunity of the majority of the rural populations
to contest elections, including denying a large number of
sitting
14.
elected
representatives,
from
contesting
the
16
15.
16.
marked as ANNEXURE P 3
That this Honble High Court in the matter of CWP No.
17452 of 2015 titled Ved Wanti Vs. State of Haryana and
another, which is regarding a challenge to clause (v) of
Section 175 of the Act, as inserted by the impugned
Ordinance, was pleased to issue notice of motion to the
respondent state and was further pleased to stay the
operation of clause (v) of Section 175 of the Act to the next
date of hearing which is on 28/08/2015. However the
challenge in that petition is not to the other clauses of
Section 175 of the Act, which is sought to be inserted by the
impugned Ordinance.
A True copy of the order in CWP No. 17452 of 2015 titled Ved
Wanti Vs. State of Haryana and another dated 21.08.2015 is
annexed hereto and marked as ANNEXURE P 4
17
GROUNDS
18
Agriculture
Cooperative
Society,
District
Central Cooperative Bank and District Primary Cooperative Agriculture Rural Development Bank, in
Panchayati Raj Institutions when there is no such
power for being elected in Municipal Institutions,
Legislative Assemblies of the States and the Parliament
of India.
19
toilet
at
their
place
of
residence,
in
by
the
impugned
Ordinance
is
unfair,
of
the
said
crimes/criminal
actions,
and
by
the
impugned
Ordinance
is
unfair,
any
Primary
Agriculture
Cooperative
Society,
20
by
the
impugned
Ordinance
is
unfair,
by
the
impugned
Ordinance
is
unfair,
and
barring
because
unconstitutional.
of
them
the
from
same
contesting
would
be
21
M. Because,
the
very
purpose
is
to
give
of
equal
constitutional
philosophy
of
democratic
22
is ultra
vires of
Article
14
of
the
ordinance
also
discriminates
candidates
who
are
literate
between
qualifications
even
without
23
Act
which
lays
down
the
various
24
Supreme
Court
in
its
judgment
dated
25
26
Total Population
1 = No. of Illiterates
% 1 = Illiterates
16035620
5495399
34.27%
1823080
% 3 = Primary
4 = No. of Middle
% 4 = Middle
5 = No. of Secondary
% 5 = Secondary
6 = No. of Higher Secondary
% 6 = Higher Secondary
7 = No. of Graduate or Higher
15.60%
2073654
12.93%
2035958
12.70%
1327897
8.28%
663668
% 7 = Graduate or Higher
8 = No. of Other (Specify
% 8 = Other (Specify)
4.14%
114742
0.72%
11.37%
2500961
A TrueTrue copy of the relevant extract of the SocioEconomic and Caste Census 2011 as available on the
website
27
http://secc.gov.in/statewiseDistrictEducationProfileRe
port dated nil is annexed herewith as ANNEXURE P- 5
T. BECAUSE the above extracted SECC data would show
that about 61.24 % population would not be able to
meet the criteria of 8th pass, and 74.17% population
would not be able to meet the criteria of matriculate
pass
as
envisaged
in
the
impugned
ordinance,
qualification
disqualification
would
of
therefore
majority
of
to
lead
to
population.
It
is
28
the
average.
It
is
pertinent
to
mention
rural
households
Thus
the
29
AA.
AB.
AC.
30
AD.
AE.
AF.
Because
the
impugned
ordinance
cannot
elections
due
to
the
failure
of
the
31
such
providing
educational
qualification
for
AG.
in
its
wisdom
has
brought
in
the
been
further
given
expression
in
terms
of
32
AH.
Because,
Amendment)
the
Act,
Constitution
1992
(Seventy-third
(73rd Amendment)
which
educational
qualifications
for
becoming
Raj
institutions,
conceived,
provide
for
no
as
constitutionally
literacy/numeracy
33
by
the
Constitution
(Seventy-third
34
AK.
occasions
has
strongly
expressed
its
35
manipulation.
The
73rd
Amendment
of
the
were
conceived
to
cure
infirmities
in
regular
elections,
prolonged
suppressions,
36
of
supersessions,
regular
inadequate
elections,
prolonged
representation
of
The Bill,inter alia to (a) establish three tier system of Panchayats in the
State,
i.e.
Gram
Panchayats
at
village
level,
37
provide
representation
to
the
offices
of
38
Family
Welfare/Family
Planning
Programme;
and
social
justice
and
the
39
be
AN.
AO.
40
the
Constitution
and
the
Haryana
Act
enacted
pursuant to it.
AP.Because, the Impugned Ordinance is violative of the
spirit
Article
243D
which
provides mandatory
Court
held
that
legislation
is
Because,
inconsistent to
the
impugned
ordinance
is
41
Human
Rights
1950
and
Article
25
of
The
42
suffrage
and
shall
be
held
by
secret
ballot,
Parliament
and
provision
shall
be
made
by
43
44
45
Government
employment
therefore,
no
minimum
46
AX.
Because,
the
impugned
Ordinance
is
also
Because,
Governor
ordinance
envisaged
making
under
Article
power
of
the
213
of
the
illiteracy
amongst
rural
masses,
more
so
47
educational
purpose
qualification
of
participatory
would
PRIs
defeat
the
very
and
as
such
unconstitutional
BA.
of
State
Policy),
provided
for
an
48
provided
as
an
institution
of
self
governance
self
governance,
self
rule
and
self
of
the
self
governance,
except
for
49
The
poor,
underprivileged
and
accountable,
educational
Panchayat
would
qualification
is
provided
require
inasmuch
with
minimum
as
every
Secretariat,
which
50
in the
Panchayati
Raj
Amendment,
it
may
be
declared
as
51
BB.
about
panchayat
was
inducted
after
model
by
totally
ignoring
the
on
Gandhian
principles
of
Village
Panchayat.
22. Under the Seventy-third Amendment of the
Constitution, panchayat became an "institution of selfgovernance" which was previously a mere unit, under
Article 40. The Seventy-third Amendment heralded a
new era but it took nearly more than four decades for
our Parliament to pass this epoch-making Seventythird Constitution Amendment- a turning point in the
history of local self-governance with sweeping
consequences in view of decentralisation, grass-root
52
and
radical
liberalism.
Republicanism
Constitutional
Amendment
53
BC.
of
India,
because,
the
impugned
BE.
the
pioneer
in
accepting
the
scheme
of
BF.
54
(by
whatever
name
called)
of
self-government
BG.
That
the
purpose
and
object
of
having
the
grassroots
level.
The
said
Part-IX
was
BH.
243G. Powers, authority and responsibilities of Panchayats:Subject to the provisions of this Constitution the Legislature
of a State may, by law, endow the Panchayats with such
powers and authority and may be necessary to enable them
to function as institutions of self-government and such law
may contain provisions for the devolution of powers and
responsibilities upon Panchayats, at the appropriate level,
subject to such conditions as may be specified therein, with
respect tothe preparation of plans for economic development and
social justice;
the implementation of schemes for economic development
and social justice as may be entrusted to them including
those in relation to the matters listed in the Eleventh
Schedule.
55
ELEVENTH SCHEDULE
[Article 243 G]
56
BJ.
That
the
Article
243
(F)
deals
with
the
57
A person shall
as, and for being, a member of a Panchayatif he is so disqualified by or under any law for the time
being in force
58
BK.
National
Rural
Employment
Guarantee
to
the
State
Governments.
State
officers
of
the
State
Government
are
4. An Accountant; and
5.
BL.
direct
Junior Engineer.
inevitable
consequences
of
the
It is submitted that
59
introduction
of
the
educational
and
other
BM.
Because
it
is
well-established
that,
the
In
short,
while
Article
14
forbids
class
grassroots
level
have
been
frustrated
by
60
BN.
BO.
Samitis,
and
Zila
Parishads
resulting
said
exclusion
disproportionately
disqualifies
BP.
rates would reveal that for people born before the 80s,
who had very little opportunity to go to school, the new
rules about educational qualification has meant a
complete exclusion from the PRI governance setup. It
is important to note that the census data shows only
literacy rates. Being literate does not qualify you for
contesting in the PRIs. What
is
required
is
the
61
number of women
BQ.
BR.
in
the
Constitution
of
India
for
62
BS.
India
and
State
Legislature.
Therefore,
the
of Parliament
vacation
by
(2)
member both
Parliament
shall
63
become
vacant,
unless
he
has
previously
addressed to
the
become vacant:
House of
meetings
thereof,
the
Parliament
(a)
Government of
64
office
declared
its holder;
by a
competent court;
(c)
if he is an un-discharged insolvent;
(d)
by
under any
acknowledgment
adherence to a
(e)
of
allegiance
or
foreign State;
made by
Parliament.
member of either
House of Parliament if he is so
Schedule.]
which
the
seat
is
reserved.
So
far
as
65
for
membership
of
the
State
Legislature
Article 173 of the Constitution of India
Qualification for membership of the State Legislature
A person shall not be qualified to be chosen to fill a
seat in the Legislature of a State unless he
(a)
Commission
an
oath
or
out for
Third Schedule;
Legislative
prescribed in
that
made by Parliament.
Disqualifications described under the Representation
of Peoples Act, 1951, are as follows:
8. Disqualification on conviction for certain
offences.
(1) A person convicted of an offence punishable
under (a) section 153A (offence of promoting
enmity between different groups on ground of
religion, race, place of birth, residence, language,
etc., and doing acts prejudicial to maintenance of
harmony) or section 171E (offence of bribery) or
section
171F
(offence
of
undue
influence
or
66
personation at an election) or sub-section (1) or subsection (2) of section 376 or section 376A or section
376B or section 376C or section 376D (offences
relating to rape) or section 498A (offence of cruelty
towards a woman by husband or relative of a
husband) or sub-section (2) or sub-section (3) of
section 505 (offence of making statement creating or
promoting enmity, hatred or ill-will between classes or
offence relating to such statement in any place of
worship or in any assembly engaged in the
performance
of
religious
worship
or
religious
which
provides
for
punishment
for
the
11 (offence
of
importing
or
exporting
67
A person
convicted
for
the
contravention of
(a) any law providing for the prevention of hoarding or
profiteering; or
(b) any law relating to the adulteration of food or
drugs; or
(c) any provisions of the Dowry Prohibition Act, 1961
(28 of 1961);
(3) A person convicted of any offence and
sentenced to imprisonment for not less than two
years [other than any offence referred to in subsection (1) or sub-section (2)] shall be disqualified
from the date of such conviction and shall continue to
be disqualified for a further period of six years since
his release.]
68
69
9.
Disqualification
for
dismissal
for
person
who
disloyalty
to
the
issued
70
71
11.
Removal
or
reduction
of
period
of
BT.
BU.
72
BV.
BW.
statement,
viz.,
that In
judging
the
BX.
challenged
on
the
ground
that
it
infringes
73
BY.
That
the
Children's
Right
to
Free
and
enter
the
School
free
of
cost
in
their
that
is
the
minimum
age
prescribed
for
Any attempt to
BZ.
74
75
the
constitutional
validity
of
law
243O.
matters notwithstanding
anything
in
this
Constitution
(a) the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such
constituencies made or purporting to be made under
article 243K, shall not be called in question in any
court;
(b) no election to any Panchayat shall be called in
question except by an election petition presented to
such authority and in such manner as is provided for
by or under any Law made by the legislature of a
State.
CB.
76
CC.
CD.
77
CE.
an action of no-application of mind by the respondentState. Therefore also, the impugned Ordinance is liable
to be quashed and set aside.
CF.
CG.
be
denied
by
imposing
unreasonable
78
CH.
CI. Because
the
impugned
amendment
and
CJ.
CK.
in
the
present
case
would
lead
to
the
79
CL.
CM.
CN.
CO.
80
17.
That the main law points involved in the present writ petition
are:
i. Whether the impugned Ordinance is ultra vires / illegal /
ii.
arbitrary?
Whether the proviso to clause (aa) of Section 175 of the
impugned Ordinance (Annexure P-2) is violative of article
14 interalia of the Constitution of India and as such is
liable
iii.
to
be
struck
down
being
ultra
vires
and
unconstitutional?
Whether the proviso to clause (t) of Section 175 of the
impugned Ordinance (Annexure P-2) is violative of articles
14, 15, 19, 21 interalia of the Constitution of India and as
such is liable to be struck down being ultra vires and
iv.
unconstitutional?
Whether the proviso to clause (u) of Section 175 of the
impugned Ordinance (Annexure P-2) is violative of Articles
14, 15, 19, 21 interalia of the Constitution of India and as
such is liable to be struck down being ultra vires and
v.
unconstitutional?
Whether the proviso to clause (w) and of Section 175 of the
impugned Ordinance (Annexure P-2) is violative of Articles
14, 15, 19, 21 interalia of the Constitution of India and as
such is liable to be struck down being ultra vires and
unconstitutional?
81
vi.
vii.
unconstitutional?
Whether the impugned actions of the Respondents is
arbitrary and hence, violative of Article 14 of the
viii.
Constitution of India?
Whether the impugned actions of the Respondents is
arbitrary and hence, violative of Article 21 of the
ix.
Constitution of India?
Whether the respondent
government
is
justified
in
x.
such action?
Whether the
respondent
government
is
justified
in
xi.
is
justified
in
Primary Co-operative
82
xii.
is
justified
in
xiii.
Parliament of India?
Whether the respondent
government
is
justified
in
18.
That the Petitioner has not filed any such or similar writ
petition either in this Honble Court or in the Honble
19.
83
PRAYER
It is therefore respectfully prayed that the record of the case
may be summoned and after perusal of the same, this
Honble Court may be pleased to:
84
85
orders,
directions
Court
deems
fit
under
the
facts
and
possession
of
certified/legible
86
INTERIM PRAYER
Stay the operation of the impugned Ordinance and
orders (Annexures P-2 and P-3) and any other relevant
orders
in
the
interim
period,
during
the
period
of
87
PETITIONER
Chandigarh
Dated: 25.08.2015
(ARJUN SHEORAN) (NEHA SONAWANE)
P/867/2011
MAH/5843/2011
ADVOCATES
COUNSEL FOR THE PETITIONER
M:9592771330/9855686442
mail@arjunsheoran.com
VERIFICATION
Verified that the contents of my above writ petition from para
1 to and para are true and correct to my knowledge, information
and belief. The averments made in para
and
PETITIONER
88
IN
THE
HIGH COURT
OF
PUNJAB
AND
HARYANA
AT
CHANDIGARH
OF
AFFIDAVIT
OF
SH.
RAJENDER
MOHAN
KASHYAP S/O LATE SHIV DUTT, GENERAL
SECRETARY OF PEOPLES UNION FOR CIVIL
LIBERTIES,
PUNJAB
AND
CHANDIGARH
CHAPTER, RESIDING AT H.NO. 133, SECTOR
22A, CHANDIGARH,
I, the above named deponent, do hereby solemnly affirm and
declare as under:
1. That the deponent is Petitioner in the present case and is
fully conversant with the facts of the case and is therefore,
competent to swear the present affidavit.
2. That the averments made in the petition are true and correct
to my knowledge, information and belief. No Part of it is false
and nothing material has been concealed therein.
3. That the deponent is filling the accompanying petition in
public interest and has no personal interest in the same.
Chandigarh
Dated:
DEPONENT
VERIFICATION
Verified that the contents of my above affidavit are true and
correct to my knowledge. No part of it is false and nothing material
has been concealed therein.
Chandigarh
Dated:
DEPONENT
89
90
Annexure P- 1
91
ANNEXURE P-2
HARYANA GOVT GAZ (EXTRA), AUG 14, 2015 (SRVN 23, 1937
SAKA)
PART II
HARYANA GOVERNMENT
LEGISLATIVE DEPARTMENT
Notification
The 14th August, 2015
No. Leg. 11/2015 :- The following Ordinance of the
Governor of Haryana promulgated under clause (1) of article 213 of
the Constitution of India, on the 14 th August, 2015 and is hereby
published for general information :HARYANA ORDINANCE NO. 5 OF 2015
THE
HARYANA
PANCHAYATI
RAJ
(AMENDMENT)
ORDINANCE, 2015
AN
ORDINANCE
Further To Amend The Haryana Panchayati Raj Act, 1994
92
IV.
Primary
Agriculture
Co-operative
Society
Co-operative
Development Bank, or
Agriculture
Rural
93
examination
from
any
recognized
institution board.
Provided that in case of a woman candidate or a
candidate
belonging
to
Scheduled
Caste,
the
CHANDIGARH
THE 14TH AUGUST, 2015
KULDIP JAIN,
Secretary to Government, Haryana.
Law and Legislative Department.
94
TRUE COPY
ADVOCATE
95
ANNEXURE P-3
HARYANA GOVERNMENT
DEVELOPMENT AND PANCHAYATS DEPARTMENT
Notification
The 14th August, 2015
No, S.O. 143/H.A. 11/1994/S. 211/2015 :- In exercise of the
powers conferred by sub-section (1) read with sub-section (2) of
section 211 of the Haryana Panchayati Raj Act, 1994 (Haryana Act
11 of 1994), the Governor of Haryana hereby directs that the
general election of Panches, Sarpanches of Gram Panchayats
(except for Gram Panchayat Chhachhrauli, Radur, Sadhura of
district Yamunanagar, Tosham of district Bhiwani, Nissing(Rural) of
district Karnal, Berwali Nandla of district Panchkula, Jakhal
Mandi of district Fatehabad, Hassanpur of district Palwal and
Samalkha of district Kurukshetra) and members of all Panchayat
Samitis and Zila Parishad shall be held and made in the State of
Haryana by 30th September, 2015 as specified by the State Election
Commission.
RAM
NIWAS,
96
Haryana,
Development
Department
TRUE COPY
ADVOCATE
and
Panchayats