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Smt. Vimlesh Malik And Others v. State Of U.P. And Others - WRIT - C No. 4424 of 2006  RD-AH 1922 (24 January 2006)
Court No. 36
Civil Misc. Writ Petition No. 4424 of 2006
Smt. Vimlesh Malik and others
State of U.P. and others
Civil Misc. Writ Petition No. 4653 of 2006
Smt. Rajbala Gupta
State of U.P. and others
Hon'ble Sushil Harkauli, J.
Hon'ble Vikram Nath, J.
Both these writ petitions raise common question and have been heard together and are being disposed of by this common judgment.
These writ petition challenge the validity of the following rules namely, the Uttar Pradesh Kshettra Panchayat & Zila Panchayat (Delimitation of Territorial Constituencies for Election of Member) Rules, 1994; the Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Election of Members) Rules, 1994; the Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Reservation And Allotment of Seats And Offices) Rules, 1994; the Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Oath of Office of Adhyaksha or Pramukh etc. )Rules, 1994; the Uttar Pradesh Kshettra Panchayats (Election of Pramukhs and Up-Pramukhs and settlement of Election Disputes) rules, 1994; the Uttar Pradesh Kshettra Panchayats (Removal of Disqualification And Settlement of Disputes Relating to Disqualification And Membership) Rules, 1994; the Uttar Pradesh Kshettra Panchayats (Settlement of Disputes Relating to Membership) Rules, 1994 and the Uttar Pradesh Kshettra Panchayats (Election of Adhyaksha and Up-Adhyaksha And Settlement of Election Disputes) Rules, 1994 (annexures No. 1 to 8 to the writ petition) as nonest and having no force in law on the ground that the conditions under section 237(3) of the Uttar Pradesh Kshettra Panchayats And Zila Panchayats Adhiniyam, 1961, has not been fulfilled so far, although the Houses of the State Legislature have been in session for a total period exceeding 30 days whether in one single session or more than one successive sessions since the making of these rules.
For ready reference, section 237(3) is reproduced below:
"237. Power of State Government to make rules.-
(3) All rules made under this Act shall, as soon as may be after they are made be laid before each House of the State Legislature while it is in session for a total period of thirty days extending in its one session or more than one successive sessions, and shall, unless some later date is appointed, take effect from the date of their publication in the Gazette, subject to such modifications or annulments as the two Houses of the State Legislature may during the said period agree to make so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder."
Having examined the above provision, we are of the opinion that there can be no doubt that while it is the duty of the State Government to lay the rules before each House of the State Legislature, but it is not a pre-condition either to the publication of the rules in the Gazette or to their coming into effect that they should be laid before the State Legislature. In fact, such interpretation is ruled out by the express words of the same sub-section (underlined above), which says that if the Houses modify or annul the rules when they are laid before the Houses, anything done under the rules prior to such annulment or modification will continue to be valid.
From the petitioners' side reliance has been placed upon the decision of the Supreme Court in the case of Quarry Owners' Association Versus State of Bihar and others reported in (2000) 8 Supreme Court Cases 655, which is in respect of section 28(1) of Mines And Minerals (Regulations And Development) Act, 1957. The said sub-section is identical to section 237(3) of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. The Supreme Court did not strike down the rules or notifications despite similar challenge but merely directed the State Government to place the same before the Legislature.
Reliance has also been placed from the petitioner's side upon the decision of the Supreme Court in the case of Hukam Chand etc. Versus Union of India reported in A.I.R. 1972 S.C. 2427. That decision has no application in the present case because in that decision the Supreme Court was considering the argument whether, if the Central Government was not authorised by the Act to frame rules with retrospective effect, the validity of a retrospective rule could be up-held merely because it had been placed before the Legislature.
In the circumstances, the ground taken for annulling these rules is misconceived.
However, if any of the aforesaid rules have not been placed before the State Legislature, and if they have been made in exercise of power under section 237 of the Act, the respondent No. 1 i.e., the State Government will ensure that these rules are laid before both Houses of the State Legislature without any further delay in accordance with the section 237(3) of the Act.
The writ petition is disposed of with the aforesaid directions.
Copy of the order may be issued on payment of requisite charges within three days.
Dated: January 24, 2006
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