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HIGH COURT OF JUDICATURE AT BOMBAY
THE HONOURABLE MR. JUSTICE D.D. SINHA & THE HONOURABLE MRS. JUSTICE MRIDULA BHATKAR
Jadhav Shankar Dyandeo & Another
Versus
The Collector at Satara & Another
WRIT PETITION NO. 3545 OF 2010
Date of Judgment : 01-09-2010
"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 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 Article 243-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 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 Commissioner, 1966 DGLS (soft) 193 : AIR 1967 SC 669. 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 he 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 Sections 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 Sections 8 and 9 were not to be treated as final, the 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 Sections 2(kk), 11-F and 12-BB of the Act in place of Sections 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 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 Articles 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 Articles 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 BVP Act in view of Article 243-C, Articles 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.
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 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 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. 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
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