1 2025:CGHC:4877-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 538 of 2025 1 - Madheshwar Jain S/o Kalaram Jain Aged About 46 Years R/o Village Aedanar, Tehsil Antagarh P.S. Tadoki District Kanker Chhattisgarh Post - Jila Adhyaksh Pichla Varg Samaaj Kanker ... Petitioner(s) versus 1 - State Of Chhattisgarh Through The Chief Secretary, Mantralaya Mahanadi Bhawan, New Raipur, District Raipur Chhattisgarh 2 - State Of Chhattisgarh Through The Secretary, Panchayat And Rural Development Department, Mantralaya Mahanadi Bhawan, New Raipur, District Raipur Chhattisgarh 3 - State Of Chhattisgarh Through The General Administration Department, Mantralaya Mahanadi Bhawan, New Raipur, District Raipur Chhattisgarh 4 - State Of Chhattisgarh Through The Commissioner, State Election Commission, Raipur, District Raipur Chhattisgarh 5 - State Of Chhattisgarh Through The Director, Panchayat, Directorate, Raipur, District Raipur Chhattisgarh 6 - Collector Kanker District Kanker Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Shakti Raj Sinha, Advocate 2 For Respondent(s) : Mr. Prafull N. Bharat, Advocate General assisted by Mr. R.S.Marhas, Additional Advocate General, Mr. Praveen Das, Additional Advocate General and Mr. Shashank Thakur, Deputy Advocate General Division Bench: Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 28 .01.2025 1. Heard Mr. Shakti Raj Sinha, learned counsel for the petitioner. Also heard Mr. Prafull N. Bharat, learned Advocate General assisted by Mr. R.S.Marhas, learned Additional Advocate General, Mr. Praveen Das, learned Additional Advocate General and Mr. Shashank Thakur, learned Deputy Advocate General for the State/respondents. 2. The petitioner has filed the present petition seeking the following reliefs:- (i)That, this Hon'ble Court may kindly be pleased to declare the Notification dated 24.12.2024 notifying amendment in Chhattisgarh Panchayat Election rules 1995 as ultra vires and without legal authority.ANNEXURE P/4 (ii) That, this Hon'ble Court may kindly be pleased to quash the Notification issued by the Collector Kanker applying the amended Election Rules 1995. ANNEXURE P/5 (iii) That, this Hon'ble Court may kindly be pleased to direct the respondents not to act upon the ordinance dated 03.12.2024, till the same is validly passed by the State Legislative Assembly as required by the Article 213 of the Constitution Of India. (iv) That, this Hon'ble Court may kindly be pleased to direct the respondents to apply section 129 (Ε) Clause (3) of Chhattisgarh Panchayat Adhiniyam 1993 in the upcoming Panchayat Elections, as earlier, as the same is special provision for schedule 5 area. (v) Any other relief deemed just and proper by the Hon’ble Court in the interests of justice. 3. It has been pointed out by the learned counsel for the petitioner as well as learned State counsel that in an identical matter, this Bench had dismissed WPC 3 No. 392 of 2025 ( Naresh Rajwade Vs. State of C.G. & Ors.) vide order dated 27.01.2025 observing as follows:- 10. Before proceeding further, it would be appropriate to take note of the Notification dated 24.12.2024 (Annexure P/4) which reads as under: “Atal Nagar, the 24th December 2024 NOTIFICATION No./5886/2563/22-1/2021 - In exercise of the powers conferred by sub-section (1) of Section 95 read with Section 43 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (No 1 of 1994) and in consultation with the State Election Commission, having duly complied with the condition of previous publication as prescribed by sub-section (3) of Section 95 of the said Adhiniyam, the State Government hereby, makes the following further amendment in the Chhattisgarh Panchayat Nirvachan Niyam, 1995, namely:- AMENDMENT In the said rule, - 1. For proviso of sub-rule (1) of rule 4, the following proviso shall be substituted, namely:- "Provided that in Scheduled areas, the seats for Scheduled Castes and Scheduled Tribes shall be reserved in accordance with the provisions of Section 129-E of the Act." 2. For sub-rule (4) of rule 4, the following sub-rule shall be substituted, namely:- "(4) In any Gram Panchayat where less than Fifty percent seats have been reserved for Scheduled Castes and/or Scheduled Tribes, then for Other Backward Classes remained seats as nearly as possible shall be reserved proportionate to their population but subject to the maximum limit of Fifty percent of the total seats and such seats shall be allotted by the Collector in the wards excluding the wards reserved for the Scheduled Castes and Scheduled Tribes by rotation and drawal of lots. Provided that in any Gram Panchayat where fifty percent or more than fifty percent of the seats have been reserved for the Scheduled Castes and/or the Scheduled Tribes, no seat shall be reserved for the Other Backward Classes. Explanation: Other Backward Classes population means the statistical data recognized by the Chhattisgarh Backward Class Welfare Commission, regarding the population of Other Backward Classes" 3. For proviso of sub-rule (1) of rule 6, the following proviso shall be substituted, namely:- "Provided that in Scheduled areas, the seats for Scheduled Castes and Scheduled Tribes shall be reserved in accordance with the provisions of Section 129-E of the Act. 4 4. For sub-rule (4) of rule 6, the following sub-rule shall be substituted, namely:- "(4) In any Janpad Panchayat and in any Zila Panchayat where less than Fifty percent seats have been reserved for Scheduled Castes and/or Scheduled Tribes, then for Other Backward Classes remained seats as nearly as possible shall be reserved proportionate to their population but subject to the maximum limit of Fifty percent of the total seats and such seats shall be allotted by the prescribed authority in the constituencies excluding the constituencies reserved for the Scheduled Castes and Scheduled Tribes by rotation and drawal of lots: Provided that in any Janpad Panchayat and in any Zila Panchayat where fifty percent or more than fifty percent of the seats have been reserved for the Scheduled Castes and/or the Scheduled Tribes, no seat shall be reserved for the Other Backward Classes. Explanation: Other Backward Classes population means the statistical data recognized by the Chhattisgarh Backward Class Welfare Commission, regarding the population of Other Backward Classes" By order and in the name of the Governor of Chhattisgarh, TARAN PRAKASH SINHA, Joint Secretary” 11. It would be beneficial to quote sub-section (3) of Section 129-E of the Act of 1993, which has been sought to be deleted vide the Ordinance dated 03.12.2024, which reads as under:- “(3) In a Panchayat in Scheduled Areas such number of seats shall be reserved for persons belonging to other backward classes, which together with the seats already reserved for Scheduled Tribes, and Scheduled Castes, if any, shall not exceed three-fourths of all the seats in that Panchayat.” 12. Before amendment in the Rules of 1995, the relevant provisions in the Rules in question were as under: Proviso to sub-rule (1) of Rule 4 of the Rules of 1995: “Provided that in Scheduled areas the seat for Scheduled Castes, Scheduled Tribes and Other Backward Classes shall be reserved in accordance with the provisions of Section 129-E of the Act.” Sub-rule (4) of Rule 4 of the Rules of 1995: “In a Gram Panchayat where fifty per cent or less than fifty per cent wards have been reserved both for the scheduled castes and for scheduled tribes, twenty five per cent of the total number of seats shall be reserved for other backward classes and such seats shall be allotted by the Collector in the wards excluding the wards reserved for the scheduled castes and the scheduled tribes by rotation and drawing of 5 lots: Provided that in Gram Panchayat in Scheduled areas, such number of seats shall be reserved for persons belonging to Other Backward Classes, which together with the seats, already reserved for Scheduled Castes, and Scheduled Tribes if any, shall not exceed three fourths of all the seats in that Gram Panchayat, by rotation and drawing of lots.” Proviso to Sub-rule (1) of Rule 6 of the Rules of 1995: “Provided that in the Scheduled areas the seats for Scheduled Castes, Scheduled Tribes and Other Backward Classes shall be reserved in accordance with the provisions of Section 129-E of the Act” Sub-rule (4) of Rule 6 of the Rules of 1995: “(4) In a Janpad and Zila Panchayat where fifty per cent or less than fifty per cent seats have been reserved for scheduled castes and scheduled tribes, twenty five percent of the total number of seats shall be reserved for other backward classes and such seats shall be allotted by the Prescribed Authority in the constituencies excluding the constituencies reserved for the Scheduled Castes and Scheduled Tribes by rotation and drawal of lots: Proviso that in a Zila Panchayat or Janpad Panchayat, as the case may be, in Scheduled Areas such number of seats shall be reserved for persons belonging to Other Backward Classes, which together with the seats, already reserved for Scheduled Castes and Scheduled Tribes, if any, shall not exceed three fourth of all the seats in Scheduled areas of that Zila Panchayat or Janpad Panchayat, as the case may be, by rotation and drawing of lots.” 13. Article 213(2) of the Constitution of India reads as under:- “213. Power of Governor to promulgate Ordinances during recess of Legislature - (1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require: Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if- (a) a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or 6 (b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or (c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President. (2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Legislature of the State assented to by the Governor, but every such Ordinance- (a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and (b) may be withdrawn at any time by the Governor. Explanation.-Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.” 14. In nutshell, the petitioner is affected by the Ordinance (Annexure P/1) and the Notification (Annexure P/4 and P/5) by which the reservation of seats for the OBC candidates have been abolished after making amendments in the Rules of 1995. His contention is that when the the Ordinance has not been approved, any amendment brought in the Rules of 1995 should cease to operate, especially when the Ordinance has been re-promulgated and after re-promulgation, no fresh amendments have been effected. 15. Mr. Sinha has placed reliance on paragraph 105.8 to 105.11 of the decision rendered in of Krishna Kumar Singh (supra). For ready reference, the same is quoted herein below: “105.8 Repromulgation of Ordinances is a fraud on the Constitution and a subversion of democratic legislative processes, as laid down in the judgment of the Constitution Bench in D C Wadhwa1; 105.9 Article 213(2)(a) provides that an Ordinance promulgated under that Article shall “cease to operate” six weeks after the reassembling of the legislature or even earlier, if a resolution 1 D.C.Wadhwa v. State of Bihar (1987) 1 SCC 378 7 disapproving it is passed in the legislature. The Constitution has used different expressions such as “repeal” (Articles 252, 254, 357, 372 and 395); “void” (Articles 13, 245, 255 and 276); “cease to have effect” (Articles 358 and 372); and ”cease to operate” (Articles 123, 213 and 352). Each of these expressions has a distinct connotation. The expression “cease to operate” in Articles 123 and 213 does not mean that upon the expiry of a period of six weeks of the reassembling of the legislature or upon a resolution of disapproval being passed, the ordinance is rendered void ab initio. Both Articles 123 and 213 contain a distinct provision setting out the circumstances in which an ordinance shall be void. An ordinance is void in a situation where it makes a provision which Parliament would not be competent to enact (Article 123(3)) or which makes a provision which would not be a valid if enacted in an act of the legislature of the State assented to by the Governor (Article 213(3)). The framers having used the expressions “cease to operate” and “void” separately in the same provision, they cannot convey the same meaning; 105.10 The theory of enduring rights which has been laid down in the judgment in Bhupendra Kumar Bose and followed in T Venkata Reddy by the Constitution Bench is based on the analogy of a temporary enactment. There is a basic difference between an Ordinance and a temporary enactment. These decisions of the Constitution Bench which have accepted the notion of enduring rights which will survive an ordinance which has ceased to operate do not lay down the correct position. The judgments are also no longer good law in view of the decision in S R Bommai; 105.11 No express provision has been made in Article 123 and Article 213 for saving of rights, privileges, obligations and liabilities which have arisen under an ordinance which has ceased to operate. Such provisions are however specifically contained in other articles of the Constitution such as Articles 249(3), 250(2), 357(2), 358 and 359(1A). This is, however, not conclusive and the issue is essentially one of construction; of giving content to the ‘force and effect’ clause while prescribing legislative supremacy and the rule of law;” 16. Mr. Bharat, learned Advocate General has also placed relied upon the same judgment i.e. Krishna Kumar Singh (supra), but on different paragraphs (including paragraphs 105.10 and 105.11) which read as under: “4. When the case came up before a Bench of three judges it was referred to a Bench of five judges on the ground that it raised substantial questions relating to the Constitution. The proceedings before the Constitution Bench on 23 November 2004 have resulted in a reference to a larger Bench of seven Judges. 8 xxx xxx xxx 59. The rationale for the conferment of a power to promulgate ordinances upon the President and the Governors is that the law, particularly a compact of governance, would not accept a State of constitutional vacuum. The legislature is not always in session. Convening it requires time. In the meantime, unforeseen events may arise which need legislative redressal. An ordinance can be promulgated only when the legislature is not in session. But the legislature has to be convened at an interval of no later than six months. The life of an ordinance is restricted in time: six weeks after the reassembly of the legislature, it ceases to operate. Even within this period, a resolution can be passed by the legislature disapproving of the ordinance promulgated in its absence. In such an event, an ordinance made by the Governor on the aid and advice of the Cabinet ceases to operate. The constitutional conferment of a power to frame ordinances is in deviation of the normal mode of legislation which takes place through the elected bodies comprising of Parliament and the state legislatures. Such a deviation is permitted by the Constitution to enable the President and Governors to enact ordinances which have the force and effect of law simply because of the existence of circumstances which can brook no delay in the formulation of legislation. In a parliamentary democracy, the government is responsible collectively to the elected legislature. The subsistence of a government depends on the continued confidence of the legislature. The ordinance making power is subject to the control of the legislature over the executive. The accountability of the executive to the legislature is symbolised by the manner in which the Constitution has subjected the ordinance making power to legislative authority. This, the Constitution achieves by the requirements of Article 213. The first requirement defines the condition subject to which an ordinance can be made. The second set of requirements makes it mandatory that an ordinance has to be placed before the House of the legislature. The third requirement specifies the tenure of an ordinance and empowers the legislature to shorten the duration on the formulation of a legislative disapproval. Once the legislature has reconvened after the promulgation of an ordinance, the Constitution presupposes that it is for the legislative body in exercise of its power to enact law, to determine the need for the provisions which the ordinance incorporates and the expediency of enacting them into legislation. Once the legislature has convened in session, the need for an ordinance is necessarily brought to an end since it is then for the legislative body to decide in its collective wisdom as to whether an ordinance should have been made and if so, whether a law should be enacted. 9 60. A reasonable period is envisaged by the Constitution for the continuation of an ordinance, after the reassembling of the legislature in order to enable it to discuss, debate and determine on the need to enact a law. Repromulgation of an ordinance, that is to say the promulgation of an ordinance again after the life of an earlier ordinance has ended, is fundamentally at odds with the scheme of Articles 123 and 213. Re promulgation postulates that despite the intervening session of the legislature, a fresh exercise of the power to promulgate an ordinance is being resorted to despite the fact that the legislature which was in seisin of a previously promulgated ordinance has not converted its provisions into a regularly enacted law. What if there is an exceptional situation in which the House of the legislature was unable to enact a legislation along the lines of an ordinance because of the pressure of legislative work or due to reasons? Would the satisfaction of the Governor on the need for immediate action be arrived at for an act of re-promulgation, after a legislative session has intervened? xxx xxx xxx 64. The limitation of the decision in D C Wadhwa is that having spelt out constitutional doctrine, the Constitution Bench ended only with a ‘hope and trust’ that law making through repromulgated ordinances would not become the norm. That trust has been belied by the succession of repromulgated ordinances in this case. The ultimate direction was to set aside one ordinance on intermediate education, which still held the field. D C Wadhwa did not address itself to the legal status of action taken under an ordinance which has lapsed on the expiry of its tenure or on being disapproved. Does action initiated under an ordinance survive the end of an ordinance which has not been adopted into an act of the legislature? That is the issue to which we turn now.” 17. Reliance has also been placed on paragraphs 6 and 7 of the decision rendered by the Apex Court in D.C. Wadhwa (supra) which reads as follows :- “6. The Government of Bihar, it seems, made it a settled practice to go on repromulgating the ordinances from time to time and this was done methodologically and with a sense of deliberateness. Immediately at the conclusion of each session of the State Legislature a circular letter used to be sent by the Special Secretary in the Department of Parliamentary Affairs to all the Commissioners Secretaries, Special Secretaries, Additional Secretaries and all heads of departments intimating to them that the session of the Legislature had been got prorogued' and that under Article 213 Clause (2)(a) of the Constitution all the ordinances would cease to be in force after six weeks of the date of reassembly of 10 the Legislature and that they should therefore get in touch with the Law Department and immediate action should be initiated to get "all the concerned ordinances repromulgated", so that all those ordinances are positively repromulgated before the date of their expiry. This circular letter also used to advise the ofÏcers that if the old ordinances were repromulgated in their original form without any amendment, the approval of the Council of Ministers would not be necessary. The petitioners placed before the Court a copy of one such circular letter dated 29th July, 1981 and it described the subject of the communication as "regarding repromulgation of ordinances". It would be profitable to reproduce this circular letter dated 29th July, 1981 as it indicates the routine manner in which the ordinances were repromulgated by the Governor of Bihar: * * * * This circular letter clearly shows beyond doubt that the repromulgation of the ordinances was done on a massive scale in a routine manner without even caring to get the ordinances replaced by Acts of the Legislature or considering whether the circumstances existed which rendered it necessary for the Governor to take immediate action by way of repromulgation of the ordinances. The Government seemed to proceed on the basis that it was not necessary to introduce any legislation in the Legislature but that the law could be continued to be made by the Government by having the ordinances repromulgated by the Governor from time to time. The question is whether this practice followed by the Government of Bihar could be justified as representing legitimate exercise of power of promulgating ordinances conferred on the Governor under Article 213 of the Constitution.” 18. Reliance placed on the paragraphs of the decision rendered in Krishna Kumar Singh (supra) by Mr. Sinha is of no assistance to him as the facts of the present case is distinguishable. From perusal of the above quoted judgment relied on by the learned Advocate General, it is crystal clear that in the said, the Ordinance therein was promulgated repeatedly for more than 18 times, as such, Hon’ble Supreme Court has held that the re-promulgation of Ordinance is a fraud on the Constitution and a subversion of democratic legislative processes, as laid down in the judgment of the Constitution Bench in D.C. Wadhwa (supra). 19. In the case at hand, there is no dispute that the Governor of Chhattisgarh has promulgated the Ordinance on 03.12.2024 which has been re-promulgated on 23.01.2025 in exercise of the powers under Article 213 of the Constitution. It is well settled that Article 213 of the Constitution does not require the Legislature to approve an Ordinance. Article 213(2) of the Constitution refers only to a resolution disapproving an Ordinance. If an Ordinance is disapproved by a resolution of the State Legislature, it ceases to operate as provided in Article 213(2)(a) of the Constitution. If 11 an Ordinance is not disapproved, it does not lead to any conclusion that it has been approved but it only means that the Ordinance has not been disapproved by the State Legislature, nothing more and nothing less. 20. The majority view of the Apex Court, in Krishna Kumar Singh (supra) which is at paragraph ‘N. Conclusion’ from 105.1 to 105.13, in short, is only with respect to the power of the Governor for promulgation. Firstly, the Ordinance has to be tabled before the Assembly and in case it is rejected, the said Ordinance goes, in case, the same is accepted, it takes the form of an Act or case nothing is done, then also it goes after expiry of six weeks from the date of next session. This is the crux of the matter which has been explained in the said judgment and the same has no applicability to the case in hand. In D.C.Wadha (supra), the Hon’ble Apex Court has deprecated the continuous re-promulgation of the Ordinances as is evident from perusal of paragraph 6 of the said judgment, which is not the case in hand. In D.C.Wadhwa (supra), the Ordinances under challenge were re-promulgated and continued for a period ranging from 12 to 14 years which is definitely not the case herein. 21. Considering the overall facts and circumstances of the case as well as arguments advanced on behalf of the respective parties, it is apparent that as the Ordinance dated 03.12.2024 in question has been re-promulgated and notified in the gazette on 23.01.2025, which is a new cause of action which is neither under challenge in this petition nor is there any pleadings in the present petition with respect to the same, no relief as claimed by him in this petition can be granted and as such, the writ petition being devoid of merit and is hereby dismissed leaving it open to the petitioner to take recourse to law, if he is aggrieved with the Ordinance notified by the State Government on 23.01.2025. 4. Having considered the rival submissions made by learned counsel for the parties and having gone through the materials on record, it is evident that the facts and issue involved in this appeal is identical to WPC 392/2025, hence, this Court deems it appropriate not to take a view other than what has been taken in WPC No. 392/2025. 5. Accordingly, the present petition is dismissed in terms of the order dated 27.01.2025 passed in WPC No. 392/2025 (Naresh Rajwade Vs. State of C.G. & Ors.) Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Sagrika SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.02.05 14:56:55 +0530