1

10.09.2016
To,
1. State of Haryana through its Additional Chief
Secretary,

Department

of

Development

Panchayat,

Government

of

Haryana,

and
Civil

Secretariat, Chandigarh.
2. Union of India through its Cabinet secretary,
Govt. of India,

New Delhi

CIVIL WRIT PETITION NO. 21524 OF 2016.

Naresh Kadyan

Petitioner.
Versus

State of Haryana and another

Respondents.
In accordance with the Punjab and Haryana High
Court Writ Jurisdiction Rules, a copy of the writ
petition alongwith its Annexures is sent herewith
as advance notice. The writ petition is likely to
be

heard

Honble

by

the

Punjab

Honble
and

Motion

Haryana

Bench

High

of

the

Court

on

30,September, 2016 or any other next working day.

Please take notice accordingly.
(RAVI SHARMA)
(Enrl. No. P/792/1991)

Advocate

List of Dates and Events

1973

The Honble Supreme Court of India in

Keshvananda Bharti V/s State of Kerala
(AIR

1973

SUPREME

COURT

1461

(V

60

333) held as under:302. The learned attorney General said

that every provision of the Constitution
is essential; otherwise it would not have
been put in the Constitution. This is
true.

But

this

does

not

place

every

provision of the Constitution in the same

position. The true position is that every
provision

of

the

Constitution

can

be

amended provided in the result the basic

foundation

and

structure

of

the

Constitution remains the same. The basic

structure may be said to consist of the
following features;
1. Supremacy of the Constitution;
2.

Republican

and

Democratic

forms

of Government.
3.

Secular

character

of

the

Constitution;
4. Separation of powers between the
legislature,

the

executive

and

the

Judiciary;
5. Federal character of the Constitution.
1993

The

Constitution

(Seventy

third

Amendment) Act. 1992 came into effect and

Article 243(d) of Constitution of India
reads as under:(a) Panchayat means an institution (by
whatever

name

called)of

self-

government constituted under article

243B, for the rural areas;

1994

Haryana

Panchayati

enacted,

wherein

Raj

Act,

provision

1994
of

was

direct

election to the post of Sarpanch of Gram

Panchayat

has

been

8(2)(a),

which

is

made

vide

Section

unconstitutional

and

against the law settled by the Honble

Supreme Court of India in Keshvananda
Bharti

V/s

SUPREME

State

COURT

of

1461

Kerala
(V

(AIR

60

1973
333)

judgments, as such the same deserves to

be declared ultravire of the Constitution
of India
2006

The Honble Supreme Court of India

further held in Kuldeep Nayyar v/s Union
of India and others reported as (2006)7
SCC(1) as under:Parliamentary

democracy

and

multiparty system are an inherent part of

the

basic

structure

of

the

Indian

Constitution.
Hence, this Civil Writ Petition.
Place: Chandigarh
Dated:15.10.2016.
(RAVI SHARMA)
(Enrl. No. P/792/1991)

Advocate
Counsel for the Petitioner

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND

HARYANA AT CHANDIGARH.
CIVIL WRIT PETITION NO. 21524 OF 2016.
Memo of Parties
Naresh Kadyan son of Sh. Om Parkash Kadyan,
resident of Village Sewan Tehsil Beri, and
District Jhajjar.
Petitioner
Versus
1. State of Haryana through its Additional Chief
Secretary,

Department

Panchayat,

Government

of
of

Development
Haryana,

and
Civil

Secretariat, Chandigarh.
2. Union

of

India

through

its

Secretary,

Ministry of Panchayat Raj, Govt. of India,

New Delhi.

Respondents
Place: Chandigarh
Dated: 15.10.2016
(RAVI SHARMA)
(Enrl. No. P/792/1991)

Advocate
Counsel for the Petitioner

Civil

writ

226/227

petition

of

the

under

Articles

Constitution

of

India, praying for issuance of writ

in the nature of certiorari quashing
the provisions of Section 8(2)(a) of
the Haryana Panchayati Raj Act 1994,
being
the

unconstitutional

law

laid

down

and

against

the

Honble

by

Supreme

Court

in

celebrated

judgment

reported

as

Keshwananda

Bharti

v/s

State

of

Kerala,

reported as AIR 1973 SC page 1461

and

other

subsequent

judgments

and

further for issuance of a writ in

the nature of mandamus directing the
respondents to take effective steps
to curb Conveniencism and encourage
Constitutionalism

at

all

levels

in

all wings of the Government.

RESPECTFULLY SHOWETH:
1. That the petitioner is citizen of India and
hence, duly entitled and competent to invoke
the extra-jurisdiction of this Honble Court
under

Articles

226

and

227

of

the

Constitution of India.
2. That
voter

the
of

petitioner
Gram

is

Panchayat

a
of

duly

registered

village

Siwan,

Tehsil:

Beri,

District

Jhajjar.

He

has

innumerable achievements to his credit being

a

social

and

petitioner

animal

is

National

one

March

welfare

activist.

The

the

Conveners

of

Mission

initiated

by

of

National March Trust (Regd.) established with

a

sole

motto

of

Reform

to

Perform

and

Perform to Reform in the light of Article

51A(h)

of

the

constitution

of

India

which

reads as under :To

develop

the

scientific

temper,

humanism and the spirit of inquiry and

reform;
The main aim and objective of the above said
registered

Trust

and

mission

is

to

publicize the Fundamental Duties enshrined

in Article 51A of the Constitution of India
with special emphasis on aforesaid duty and
to

create

capacity

building

among

the

citizens and to act upon.

3. That the framers of the Constitution of India
had adopted British System of Government with
some

modifications

in

then

existing

system,

established under the Government of India Act,

1935, inspite of the fact the India is a much
larger

country

than

Britain,

both

population wise. Presently, the total

area

and

area of

the Britain
State

of

present
Uttar

is much lesser than the present

Rajasthan

Maharashtra

Pradesh

and

and

population

State

and

further

1/3

without

half

of

of

present

taking

the

views of Mahatma Gandhi, later on accepted as

Father of Nation, expressed in his celebrated
book

Hind

Parliament

Swaraj
in

1909

regarding
into

then

British

consideration,

the

relevant part of which reads as under:05. THE CONDITION OF ENGLAND

Reader:
that

Then

the

from

your

Government

statement

of

England

deduce
is

not

justified.

The

desirable and not worth copying by us.

Editor:

Your

deduction

is

condition of England at present is pitiable.

I pray to God that India may never be in that
plight. That which you consider to be the
Mother of Parliaments is like a sterile woman
and a prostitute. Both these are harsh terms,
but exactly fit the case. That Parliament has
not yet, of its own accord, done a single
good thing. Hence I have compared it to a
sterile woman. The natural condition of that
Parliament

is

such

that,

without

outside

pressure, it can do nothing. It is like a

prostitute because it is under the control of
ministers who change from time to time. Today
it is under Mr. Asquith, tomorrow it may be
under Mr. Balfour.
Reader: You have said this sarcastically. The
term "sterile woman" is not applicable. The
Parliament, being elected by the people, must

work

under

public

pressure.

This

is

its

quality.
Editor: You are mistaken. Let us examine it a
little

more

closely.

The

best

men

are

supposed to be elected by the people. The

members serve without pay and therefore, it
must be assumed, only for the public weal.
The electors are considered to be educated
and

therefore

we

should

assume

that

they

would not generally make mistakes in their

choice. Such a Parliament should not need the
spur of petitions or any other pressure. Its
work should be so smooth that its effects
would be more apparent day by day. But, as a
matter of fact, it is generally acknowledged
that

the

members

selfish.

Each

interest.

It

is

What

motive.

tomorrow.
single

It

thinks

for

hypocritical

of

his

fear

that

is

is

done

today

is

not

instance

predicted

are

in

its

work.

guiding

be

to

finality
When

little

the

may

possible
which

own

the

and

undone

recall
can

a
be

greatest

questions are debated, its members have been

seen to stretch Hind Swaraj or Indian Home
Rule.
Themselves and to doze, Sometimes the members
talk away until the listeners are disgusted.
Carlyle has called it the "talking shop of
the

world".

Members

vote

for

their

party

without a thought. Their so-called discipline

binds them to it. If any member, by way of
exception, gives an independent vote, he is
considered a renegade. If the money and the
time wasted by Parliament were entrusted to a
few good men, the English nation would be

occupying

today

Parliament

is

much

simply

higher
costly

platform.

toy

of

the

nation. These views are by no means peculiar

to

me.

Some

great

English

thinkers

have

expressed them. One of the members of that

Parliament

recently

said

that

true

Christian could not become a member of it.

Another said that it was a Baby. And if it
has remained a baby after an existence of
seven hundred years, when will it outgrow its
babyhood?
Reader: You have set me thinking; you do not
expect me to accept at once all you say. You
give me entirely novel views. T shall have to
digest them. Will you now explain the epithet
"prostitute"?
Editor: That you cannot accept my views at
once is only

right. If

literature

this

on

you will read

subject,

you

will

the
have

some idea of it. Parliament is without a real

master.

Under

the

Prime

Minister,

its

movement is not steady but it is buffeted

about like a prostitute. The Prime Minister
is more concerned about his power than about
the

welfare

of

Parliament.

His

energy

is

concentrated upon securing the success of his

party. His care is not always that Parliament
shall do right. Prime Ministers are known to
have

made

Parliament

do

things

merely

for

party advantage. All this is worth thinking

over.
4. That

most

of

the

members

of

Constituent

Assembly belonging to Muslim community were in

favour of direct Democracy instead of British
model

of

political

system

because

of

its

10

inherent

weaknesses

in

members,

but

the

political

still

system

was

addition
British

adopted

due

to

other

model

of

to

the

convenience of leaders in powers who were in

position

to

influence

their

co-members

and

swayed the public and later on created a myth

that

direct

democracy

is

antiminorities,

for

their political ends and convenience. Even Dr.

B.R.

Ambedkar

Parliamentary

was

not

system

in

of

favour

of

the

for

the

of

the

visualized

that

Government

country.
5. That

perhaps

Constituent

the

Honble

Assembly

had

not

members

the Nation is going to have not only Pakistan

on its border but also China, Burma, Bangladesh
and ignored the fact the neither the Britain
nor

the

U.S.

has

such

hostilities

at

their

border steps. It is pertinent to mention here

that

both

the

aforesaid

countries

have

inherently two party systems which further give

strength to their respective political systems.
6. That either human body or political body their
working pattern is similar to each other, both
have constitutional and functional ailments, as
the Constitutional ailments can only be treated
by

constitutional

reforms/improvements.

The

internal security is same way important to a

country as immunity to the human body, which
further make both externally strong. Further,
it

is

also

true

that

individual

cant

be

reformed rather it is the system which can be

reformed and the individual cannot deviate from
the system. The weaknesses in the system lead
to chaos and disaster.
and

the

It is the constitution

constitutionalism

which

can

improve/

11

reform the system and lead to Systemism not

Conveniencism/heroism.
7. That

the

Honble

Keshvananda

Supreme

Bharti

Vs

Court

State

of

of

India

Kerala

in

(AIR

1973 SUPREME COURT 1461 (V 60 C 333) held as

under:-

302. The learned attorney General said

that

every

provision

of

the

Constitution is essential; otherwise it

would

not

have

Constitution.

been

This

is

put

in

the

true.

But

this

does not place every provision of the

Constitution in the same position. The
true position is that every provision
of

the

Constitution

provided

in

foundation

the
and

can

be

result

amended

the

structure

basic

of

the

Constitution remains the same. The basic

structure

may

be

said

to

consist

of

the

following features;

1. Supremacy of the Constitution;

2. Republican and Democratic forms of
Government.
3.

Secular

character

of

the

between

the

Constitution;
4.

Separation

legislature,

of
the

powers

executive

and

the

Judiciary;
5.

Federal

character

of

the

Constitution.
303. The above structure is built on
the basic foundation i.e. the dignity

12

and freedom of the individual. This is

of supreme importance. This can not by
any form of amendment be destroyed.
304. The above foundation and the above
basic
not

features

only

are

from

easily

the

discernible

preamble

but

the

whole scheme of the Constitution, which

I have already discussed.
The Honble Supreme Court of India

further held

in Kuldeep Nayyar v/s Union of India and others

reported as (2006)7 SCC(1) as under:Parliamentary
system

are

an

democracy
inherent

and

part

multiparty

of

the

basic

structure of the Indian Constitution.

8. That Article 141 of the Constitution of India
provides as under:141

Law

declared

by

Supreme

Court

to

be

binding on all Courts- The law declared by

the Supreme Court shall be binding on all
courts within the territory of the India.
9. That the framers of Constitution of India had
provided in Article 40 of the Constitution of
India as under:Organization

of

State

take

shall

Village

Panchayat.-The

steps

to

organize

Village Panchayats and endow them with

such

powers

and

authority

as

may

be

13

necessary to enable them to function as

units of self-government.
10. That the 73rd Constitutional Amendment Act was
passed

by

the

Parliament

in

April

1993.

The

Amendment provided a Constitutional status to the

Panchayati Raj Institutions in India and left no
discretion with the State governments in several
important

matters

pertaining

to

these

Institutions. Before the 73rd Amendment was made

effective, Article 40 of the original Constitution
provided for a Directive to the government to take
steps to organize village Panchayats and endow
them with the powers and authority as may be
necessary to enable them to function as the units
of self-government. But, by mid-eighties it was
realized

that

the

said

Directive

was

not

sufficient to institutionalize Panchayati Raj in

India. The practice of Panchayati Raj as per the
Directive Principles of the State Policy was not
to the satisfaction of the policy makers. There
were several reasons for this. One of the reasons
was that no uniform pattern of Panchayati Raj was
being followed by the State governments. While few
States

followed

two-tier

system,

the

others

followed a system of three tiers. Further, many

States were not holding regular elections to the
Panchayati Raj Institutions. Since the elections
to the Panchayati Raj Institutions were being held
by the State governments themselves, their fairness
and independence was seriously doubtful. Moreover,
there were no standard guidelines with regard to
delegation
Articles

of
243(d)

powers
of

provides as under:-

the

to

such

institutions.

Constitution

of

India

14

Panchayat means an institution (by

whatever name

called)of self-government

constituted under article 243B, for the

rural areas;
11.

That

the

respondent

no

enacted

Haryana

Panchayati Raj, 1994 and vide section 8 (2) (a) the

provision for direct election of the Sarpanch of the
Gram Panchayat has been made, which reads as under:Section

Establishment

and

Constitution

of

Gram

Panchayat (1) The Government may, by notification,

establish a Gram Panchayat by name in every Sabha
area.
(2) Every Gram Panchayat shall consist of
(a) Sarpanch who shall be elected by the Gram Sabha
from amongst its voters, by Secret ballot;
(b) Six or twenty Panches from wards in a Panchayat
area in the manner prescribed;
(c) [---]
(3) All the above seats referred to on clause(b) of
sub-selection

(2)

shall

be

filled

in

by

persons

chosen by direct election from the wards in the

Panchayat area and for this purpose each Panchayat
area shall be divided into ward in such manner that
the ratio between the population of each ward and the
number of the seats of Panches allotted to it shall,
so

far

as

possible,

Panchayat area.

be

the

same

throughout

the

15

12.

That the Conveniencism which is antithesis of

the

constitutionalism

is

like

termite

to

the

Nationalism and Systemism, as such deserve to be

curbed at all level in the all wings of the Govt. The
constitutionalism

which

helps

in

establishing

the

system and its growth should not only be the domains

of jurists and required to be encouraged from top to
below,

especially

people

even

whereas

residing

in

the

common

the

village

and

simple

side

have

constitutionalism in their heart and mind when they

say in their own language that Kayde me Sab Ka
Fayada, but it is the bad luck of the public at
large

we

have

not

learnt

the

constitutionalism from them instead

meaning

of

the

we are thrusting

our own interpretation upon them.

13. That We the People have been made addict of the
Convenienceism even by the act and conduct of those
who were supposed to be Icons of Constitutionalism.
The impugned provisions of the Haryana Panchayati Raj
Act 1994 is one of the examples of Conveniencism of
the Government and politicians, who do not want the
Political System of the country to be perfect and
sound.

By inserting the impugned provisions that one

of the basic structure of the Constitution propounded

by

the

Honble

Supreme

Court

of

India

has

been

violated, though the direct election of the Sarpanch

may have more merits than the indirect election which

16

is

secondary

Constitution

is

thing
of

but

paramount

the

violation

concern.

With

of
the

passage of time, people at village level may start

thinking that the direct election of the head of the
Government from village level to top is better.

14.

That

the

impugned

provisions

of

Haryana

Panchayati Raj Act, 1994 deserve to be quashed being

unconstitutional, ultravire of the Constitution and
against the law laid down by the Supreme court of
India

in

numerous

Judgments

and

further

the

respondents deserves to be directed to take such

steps which are necessary to curb the Convenienceism
and

encourage

the

constitutionalism

for

the

betterment of the system, which ultimately brings

Systemism.

The

petitioner

has

served

the

advance

copies of the Civil Writ Petition and present Civil

Writ Petition is being filed with some necessary
amendments.
15.

That the following Questions of Law are

involved in this petition for kind considerations

of this Honble Court are:i)

Whether

the

8(2)(a)

of

Raj

1994

are

of

the

Act

ultravire

provisions
the

Haryana

of

Section

Panchayati

unconstitutional,
Constitution

of

India and against the law laid down

by

the

Honble

Supreme

court

of

deserve

to

India?
ii) Whether

the

respondents

be directed to take such steps which are

17

necessary to curb the Convenienceism and

encourage constitutionalism at all levels
in all the wings for the betterment of
the system and Systemism?
16.

That

the

petitioner

has

such or similar writ petition,

not

filed

any

either in this

Honble court or in the Honble Supreme Court of

India.
17.

That there is no other statutory remedy

of appeal or revision available to the petitioner

except to approach this Honble court by way of
the present writ petition under Article 226 and
227 of the Constitution of India.
It

is,

writ

therefore,

respectfully

prayed

that:a)

quashing

in

the

the

nature

of

provisions

certiorari
of

Section

8(2)(a) of the Haryana Panchayati Raj Act

1994, being unconstitutional and against
the law laid down by the Honble Supreme
Court in celebrated

judgment reported as

Keshvananda Bharti v/s State of Kerala,

reported as AIR 1973 SC page 1461 and
other subsequent judgments, be issued.
b)

and

further

mandamus
take

writ

directing
effective

Conveniencism

in
the

the

nature

of

respondents

to

steps
and

to

curb

encourage

Constitutionalism at all levels in all

wings of the Government be issued.

18

c)

Issue any other appropriate writ, order

or direction, which this Honble court
may deem fit in the circumstances of the
present case.

d)

Exemption
copies

from

of

filing

the

certified

Annexures

may

kindly

advance

notice

upon

be

granted;
e)

Service

of

the

respondents may kindly be exempted.

f)

Costs

of

the

petition

may

kindly

be

awarded to the petitioner.

Place: Chandigarh
Dated 15.10.2016

Petitioner
Through
(Ravi Sharma & Sunil Bhardwaj)
(Enrl. No. P/792/1991)

Advocate
Counsel for the petitioner.
VERIFICATION:Verified that the contents of paras 1 to
& 14 and 16 to 17 are true and correct to my
knowledge and that of para 15 is based on the
legal advice of ld. counsel and believed to be
true and correct. Nothing has been kept concealed
therein and stated false therein.
Place: Chandigarh
Dated 15.10.2016

Petitioner

19

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND

HARYANA AT CHANDIGARH.
CIVIL WRIT PETITION NO. 21524 OF 2016
Naresh Kadyan

Petitioner.
Versus

State of Haryana and others

I,

--Respondents.

Affidavit of Naresh Kadyan S/o Om

Parkash Kadyan, resident of village
Sewan
Tehsil
Beri
and
District
Jhajjar.
the above named deponent do hereby

solemnly affirm and declare as under:1.

That

the

deponent

being

petitioner

is

well conversant with the facts of the case.

2.

That the facts stated in the accompanying

civil writ petition are true and correct to my

knowledge,

which

has

been

drafted

as

per

the

instructions of the deponent.

4.

That petitioner has not filed any other

similar writ petition in this Honble court or

any other high court or in the Honble Supreme
Court of India.
Place:-Chandigarh
Dated 15.10.2016
Verification:
Verified
to 3 of my above
to my knowledge
false and nothing
Place:-Chandigarh
Dated 15.10.2016

Deponent
(Naresh Kadian)
that the contents of para no. 1
affidavit are true and correct
and belief. No part of it is
has been concealed.
Deponent

20

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND

HARYANA AT CHANDIGARH.
CIVIL WRIT PETITION NO. 21524 OF 2016.
Naresh Kadyan

Petitioner
Versus

State of Haryana and another

Respondents

INDEX
SR.

PARTICULARS

DATED

PAGES

NO.
1.

Court
fee

List

of

dates 15.10.2016

1-2

and events
2.

Civil

Writ 15.10.2016

3-17

Petition
3

Affidavit

4.

Power
Attorney

15.10.2016

18

of 15.10.2016

19
Total

Note:-

The main law point involved in the writ

petition are contained in para no.15 page
17 & 18.
2.

3.

Relevant Statute/Rules:
a)

Constitution of India.

b)

Haryana Panchayati Raj Act 1994.

Whether caveat petition has been

Filed in this case.

NIL

Place: Chandigarh
Dated:15.10.2016.

Ravi Sharma & Sunil Bhardwaj

(P/792/1991)

Advocate
Counsel for the petitioner

21

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND

HARYANA AT CHANDIGARH.
CIVIL WRIT PETITION NO. 21524 OF 2016.
Naresh Kadyan

Petitioner
Versus

State of Haryana and another

Respondents

Court Fee

Place: Chandigarh
Dated:15.10.2016.

Ravi Sharma & Sunil Bhardwaj

(P/792/1991)

Advocate
Counsel for the petitioner