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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3545 OF 2010
1. Jadhav Shankar Dyandeo ]
Age 54 years, Occ: Agriculture ]
Residing at Tambi Punarwasan, ]
Taluka - Koregaon, District Satara ]
2. Mr. Sapkal Sampat Bhau ]
Age 48 years, Occ: Labour, ]
Residing at Tambi Punarwasan, ]
Taluka - Koregaon, District Satara ]..Petitioners
versus
1. The Collector at Satara
ig ]
having office at Powainaka, ]
Satara, District - Satara ]
2. The Election Commission ]
Maharashtra, ]
having office Opposite Mantralaya, ]
Mumbai, Maharashtra ]..Respondents
Mr. U. P. Warunjikar for Petitioners.
Mrs. M. P. Thakur - AGP for Respondent No. 1.
Mr. S. S. Shetye for Respondent No. 2.
CORAM : D. D. SINHA AND
MRS. MRIDULA BHATKAR, JJ.
Judgment Reserved on : 21.07.2010
Judgment Pronounced on : 01.09.2010
JUDGMENT : (Per : D. D. Sinha, J.)
Heard the learned counsel for the petitioners, learned Assistant
Government for the respondent no.1 and the learned counsel for the
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respondent no. 2.
2. Counsel for the petitioners has submitted that the petitioners are
project affected persons, who became landless and were rehabilitated in
Village Revadi by allotting an area admeasuring about 4000 sq. ft. each.
The petitioners made representation for formation of separate village of all
the rehabilitated villagers as they have separate problems than the other
villagers. On 6th August 1995 notification was issued by the Additional
Collector by exercising power under section 4(1) of The Maharashtra
Land Revenue Code, 1966 (for the sake of brevity and convenience referred
to as “MLR Code”) and new village by name Tambi Punarvasit came to be
established. On 4th December 1999 notification in official gazette by
exercising power under section 4(2) of The Bombay Village Panchayats Act,
1958 (for the sake of brevity and convenience referred to as ” the BVP
Act”) and Article 243 (g) of the Constitution of India, 1950 (for the sake of
brevity and convenience referred to as “the Constitution”) was published.
3. It is submitted that on 12th January 2010 notice in Form ‘B’ under
Rule 5(2) of The Bombay Village Panchayats (Number of Members,
Divisions into Wards and Reservation of Seats) Rules, 1966 ((for the sake of
brevity and convenience referred to as “BVP Rules, 1966”) was issued by
the respondent no.1 on behalf of respondent no.2 in respect of Village
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Panchayat Tambi. Objections were invited for proposed formation of wards.
Objections were raised by the petitioners and others on 14th January 2010.
Similarly notice under section 80 of the Civil Procedure Code was issued on
18th January 2010 through advocate. On 30th January 2010 impugned order
was passed by respondent no.1 on behalf of respondent no. 2.
4. The counsel for the petitioners has submitted that the present petition
was filed in April 2010. The Assistant Commissioner of respondent no.2
filed his affidavit dated 5th May 2010 and admitted that 18 families who
were residing in Village Revadi were included in Village Tambi since such
inclusion was necessary so as to match the population ratio as provided
under MLR Code. It is submitted that reason for inclusion is that all civic
facilities are provided by Village Tambi even though the said families form
part of Village Revadi. The counsel for the petitioners further contended
that in the affidavit of Tahsildar of Koregaon dated 18th June 2010 it is
admitted that 18 families have been included in Village Tambi. It is
submitted that in order to appreciate the controversy in issue, provisions of
Sections 3(24), 3(14) and 3(25) of the BVP Act needs to be considered.
Section 4 deals with the declaration of Declaration of Village and Section 5
deals with Establishment of Panchayats. In the present case both
notifications are issued in respect of Village Tambi under Section 4 of MLR
Code and under section 4 read with Article 243(g) of the Constitution.
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Provisions of Rule 3 of BVP Rules 1966 contemplates division of village
into wards. Similarly under the Rules the word “Village” is not defined and
therefore it is necessary to go by the definition of “Village” mentioned in
Section 3(24) of the BVP Act. It is therefore contended that in any case
there cannot be inclusion of villagers of one village into another village
while formation of wards.
5. It is contended that Rule 5 of BVP Rules, 1966 stipulates constitution
of a Panchayat. The word “Panchayat” has been defined under Section 3(14)
of the BVP Act. Similarly Section 5 states that in every village there shall be
a Panchayat and therefore if there is a separate Panchayat for Village Tambi
then by exercising power under Rule 5 the villagers of Village Revadi
cannot be included in the village Tambi. The counsel for the petitioners
further contended that Rule 5 contemplates issuance of notification in Form
‘A’. In any case by exercising power under sub rule (1) of Rule 5 or sub
rule (2) of Rule 5 boundaries of the village as contemplated under Section
3(24) of the BVP Act read with Article 243(g) of the Constitution, as well
as Section 4 of the MLR Code cannot be altered. The BVP Rules 1966 has
been framed by exercising power under Section 176(1)(2)(iia), therefore, in
any case the Rules are framed by exercising power with reference to
Section 10 i.e. “Constitution of Panchayat” and therefore the boundaries of
the village cannot be altered nor the villagers from another village can be
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included in another village at the time of formation of wards.
6. It is further submitted by the learned counsel for the petitioners that
title of Rule 5 BVP Rules 1966 deals with publication of constitution of
panchayat. Sub rule (1) contemplates number of members of a panchayat,
the number of ward into which each village shall be divided, number of
villagers which shall be elected from each ward and the ward or wards in
which seats are reserved for scheduled castes, scheduled tribes, backward
class of citizens and women, shall be published by an officer authorised by
the State Election Commissioner, by issuing notification in Form ‘A’. It is
contended that the declaration of village once is made by issuing
notification under sub clause (g) of Article 243 of the Constitution the said
village shall be known by name of the said village specified in that
notification and the State Election Commissioner does not have any power
either under Section 4 of the BVP Act or under Section 4 of the MLR Code
to alter, modify the said declaration made by the State Government under
these provisions. It is submitted that merely because elections in the year
2000 and 2005 were held on the basis of inclusion of 18 families of Village
Revadi into the Village Tambi, cannot be a valid ground to conduct the
present election of the Gram Panchayat of Tambi by including 18 families
of Village Revadi into Village Tambi. The said action of the Election
Commission is illegal and therefore unsustainable in law. It is contended
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that the objection raised by the petitioners in this regard was wrongly
rejected by the Competent Authority.
7. Learned counsel for the respondent no.2 has submitted that the
contentions canvassed by the learned counsel for the petitioners are devoid
of substance and therefore cannot be accepted. It is contended that Rule 5
deals with the publication of constitution of a panchayat. It also provides for
publication of draft notification declaring the number of members of
Panchayat, the number of wards into which each village shall be divided,
the extent of each such ward and number of members which shall be
elected from each ward. It further provides that the copy of the said
notification shall be affixed at Village Revadi so also at a conspicuous place
in the village and in case of panchayat for a local area comprising a group
of revenue villages or hamlets forming part of a revenue village, in each of
such village or hamlet. It is contended that sub rule (2) of Rule 5 provides
for inviting objection from any affected person(s) and it further provides
that after hearing the affected person(s), the Collector shall issue a final
notification under Rule 5(i) of the BVP Act. It is submitted that Chapter IX
of the Constitution deals with the Panchayats. Article 243 defines various
terms such as “Panchayat”, “Panchayat area”, “Village”. Article 243(d)
stipulates “Panchayat” means an institution of self government, constituted
under Article 243-B for the rural areas. Article 243(e) contemplates
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“Panchayat area” means the territorial area of a Panchayat. Article 243(g)
contemplates “Village” means a village specified by the Governor by public
notification to be a village for the purposes of this Part and includes a
group of villages so specified. Article 243-B deals with Constitution of
Panchayats ……. “There shall be constituted in every State, Panchayats at the
village, intermediate and district levels in accordance with the provisions of
this Part”. Article 243-K deals with Elections to the Panchayats. Article 243-
K(i) deals with “The superintendence, direction and control of the
preparation of electoral rolls, for, and the conduct of, all elections of the
Panchayats shall be vested in a State Election Commission consisting of a
State Election Commissioner to be appointed by the Governor”. Counsel for
the respondent no. 2 further submitted that Section 10A of the BVP Act
provides “The superintendence, direction and control of the preparation of
the electoral rolls for, and the conduct of all elections shall be vested in the
State Election Commissioner.” Sub section (2) of Section 10A empowers
the State Election Commissioner to delegate any of his powers and
functions to any officer of the State Government not below the rank of
Tahsildar. Counsel for the respondent no. 2 in the context of the scheme of
the above referred provisions of the BVP Act, BVP Rules and Constitution
has submitted that elections are to be conducted for Panchayat and not for
village. It is submitted that “Panchayat area” and “Village” has been defined
separately. The definition of village makes it clear that it also includes group
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of villages and part thereof.
8. Counsel for the respondent no.2 further submitted that Rule 5 of BVP
Rules, 1966 needs to be read with provisions of Chapter IX of the
Constitution. It is submitted that the authorities are require to declare the
panchayat area, which may constitute amalgamated group of villages or part
of villages. Counsel for the respondent no.2 further submitted that
notification under Rule 5(1) determines the “Panchayat Area” of Tambi
Village Panchayat for the purpose of election to the said Village Panchayat.
It is contended that in other words revenue limits of villages and territorial
area of Village Panchayats are two separate terms which are separately
defined in the Constitution of India, so also the BVP Act, 1958. Thus there
is absolutely no merit in the contentions raised by the petitioners and
therefore petition deserves to be dismissed.
9. Counsel for the respondent no. 2 further contended that the challenge
in the present petition is to the “formation of wards” in Panchayat elections.
In other words petition challenges the delimitation of Panchayat area /
constituencies determined by the authorities and therefore in view of
provisions of Article 243-O, it is well settled that the delimitation of
Panchayat area or constituencies in the said area are not open to judicial
scrutiny. In order to substantiate the said contention, reliance is placed on
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the decision of the Apex Court in the case of State of Uttar Pradesh vs.
Pradhan Sangh Kshettra Samiti [1995 (Supp.2) SCC 305]. The challenge
can be entertained by the court only on the ground that before delimitation,
no objections were invited and no hearing was given. It is submitted that in
the present case admittedly the objections were invited. Petitioners had
raised their objections and after hearing them the objections were turned
down by the Collector Satara by recording reasons and therefore impugned
order is sustainable in law.
10. The learned Assistant Government Pleader supported the stand taken
by the learned counsel for the respondent no. 2 as well as the impugned
order.
11. Considered the contentions canvassed by the respective counsel.
Perused the relevant Rules, relevant provisions of the Act and Rules, as well
as Constitution and perused the decision of the Apex Court in the case of
State of Uttar Pradesh (cited supra).
12. In the present petition, the petitioners are challenging the order passed
by the Collector Satara dated 30th January 2010 whereby objections raised
by the petitioners to the final notification issued under Rule 5 of the BVP
Rules 1966 came to be rejected. In other words the petitioners are
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challenging the formation of wards of Tambi Village Panchayat, District
Satara. Chapter IX of Constitution deals with Panchayats and Article 243
provides definitions. For our purpose, Article 243(d), (e) and (g) are
relevant, which reads thus:-
“Article 243(d) “Panchayat” means an institution (by
whatever name called) of self government constituted
under article 243-B, for the rural areas;
“Article 243(e) “Panchayat area” means the territorial area
of a Panchayat;
“Article 243(g) “village”, means a village specified by
the Governor by public notification to be a village for the
purposes of this Part and includes a group of villages so
specified.”
It is therefore evident that the territorial area of a Panchayat is distinct and
separate from the revenue limits of the village which also include group of
villages. Similarly, Article 243-C deals with compositions of panchayats
and Article 243-K deals with Elections to the Panchayats. Article 243-K(1)
contemplates the superintendence, direction and control of the preparation
of electoral rolls for, and the conduct of, all elections to the Panchayats shall
be vested in a State Election Commission consisting of a State Election
Commissioner to be appointed by the Governor. [Sub clauses 2, 3, 4 of
Article 243-K are not relevant for deciding the issue in question]. Article
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243-O prohibits interference by the court in electoral matters and
contemplates that notwithstanding anything in this Constitution the validity
of any law relating to delimitation of constituencies or the allotment of seats
to such constituencies made or purporting to be made under Article243-K,
shall not be called in question in any court. Sub clause (b) stipulates that no
election to any Panchayats 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. It is therefore
evident that as per the provisions of Article 243-O(a) once the power
exercised by the State Election Commission in relation to delimitation of
constituencies or allotment of seats to such constituencies of the Panchayat,
such action cannot be called in question in any court. The issue is no more
res integra and is covered by the decision of the Apex Court in case of State
of Uttar Pradesh (cited supra). Relevant observations are in paragraph 45 of
the said judgment, which reads thus :
“(45) WHAT is more objectionable in the approach of
the High Court is that although clause (a) of Article 243-
O of the Constitution enacts a bar on the interference by
the courts in electoral matters including the questioning
of the validity of any law relating to the delimitation of
the constituencies or the allotment of seats to such
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constituencies made or purported to be made under
Article 243-K and the election to any panchayat, the
High Court has gone into the question of the validity of
the delimitation of the constituencies and also the
allotment of seats to them. We may, in this connection,
refer to a decision of this court in Meghraj Kothari v.
Delimitation Commission. In that case, a notification of
the Delimitation Commission whereby a city which had
been a general constituency was notified as reserved for
the Scheduled Castes, This was challenged on the
ground that the petitioner had a right to be a candidate
for Parliament from the said constituency which had
been taken away. This court held that the impugned
notification was a law relating to the delimitation of the
constituencies or the allotment of seats to such
constituencies made under Article 327 of the
Constitution, and that an examination of S. 8 and 9 of
the Delimitation Commission Act showed that the
matters therein dealt with were not subject to the
scrutiny of any court of law. There was a very good
reason for such a provision because if the orders made
under S. 8 and 9 were not to be treated as final, the
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result would be that any voter, if he so wished, could
hold up an election indefinitely by questioning the
delimitation of the constituencies from court to court.
Although an order under Section 8 or Section 9 of the
Delimitation Commission Act and published under
Section 10 (1 of that Act is not part of an Act of
Parliament, its effect is the same. Section 10 (4 of that
Act puts such an order in the same position as a law
made by Parliament itself which could only be made by
it under Article 327. If we read Articles 243-C, 243-K
and 243-O in place of Article 327 and S.2(kk), 11-F and
12-BB of the Act in place of S. 8 and 9 of the
Delimitation Act. 1950, it will be obvious that neither
the delimitation of the panchayat area nor of the
constituencies in the said areas and the allotments of
seats to the constituencies could have been challenged
nor the court could have entertained such challenge
except on the ground that before the delimitation, no
objections were invited and no hearing was given. Even
this challenge could not have been entertained after the
notification for holding the elections was issued. The
High court not only entertained the challenge but has
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also gone into the merits of the alleged grievances
although the challenge was made after the notification
for the election was issued on 31/8/1994.”
The plain reading of the above referred observations made by the Apex
Court would show that if provisions of Article 243-C, 243-K and 243-O are
read together the delimitation of Panchayat area or the formation of the
constituencies in the said areas and allotments of seats to the constituencies
could be challenged nor the court can entertain such challenge except on
the ground that before delimitation, no objections were invited and no
hearing was given, even though this challenge also could not be entertained
after the notification for holding the election is issued. The law declared by
the Apex Court is loud and clear and prohibits courts to entertain challenge
in view of Article 243-C, 243-K read with 243-O in respect of the above
aspects, and therefore the challenge raised by the petitioners pertaining to
delimitation of Panchayat area or that of formation of constituency in the
said area as well as allotment of seat to such constituencies cannot be
entertained by this court since the objections were invited, petitioners have
raised objections, hearing was given to them and it is only thereafter the
objections were rejected by the Collector Satara by passing impugned order.
The contentions canvassed by the petitioners based on Rule 2 (5) of BVP
Rules, 1966 as well as Section 4 of MLR Code as well as Section 2(4) of the
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BVP Act in view of Article 243-C, Article 243-K and 243-O coupled with
the law declared by the Apex Court in State of Uttar Pradesh (cited supra) is
devoid of substance.
13. Petition suffers from lack of merits and the same is dismissed. No
order as to costs.
ig (D. D. SINHA, J.)
(MRS. MRIDULA BHATKAR,J.)
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