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2007 Supreme(Guj) 333
2007 (3) GCD 1805 (Guj) (DB)
Hon’ble Mr. Justice M.S. Shah &
Hon’ble Mr. Justice H. B. Antani
Bashir Adamji Adat
Versus
State of Gujarat & Ors.
Misc. Civil Application – For Direction No. 1409 of 20071
Decided on 13/06/2007
Point in Issue :
Whether impugned order of deletion of names of 597 persons from voter list without following procedure under the Act sustainable.
Headnote:Head Note :
Gujarat Panchayats Act, 1993 (18 of 1993) — Sections 13 & 17 to 20 — Representation of People Act, 1950 — Sections 21 and 22 — Election to Gram Panchayat — Voter list — Amendment there to — Procedure — Failure to follow — Effect of — Finding as to — The list of voters for elections to Panchayats have to be based on the list of voters prepared and published for election to the Gujarat Legislative Assembly — The names of persons already included in the electoral roll cannot be deleted without following the procedure prescribed under Act of 1950 — There is no dispute that electoral roll for that part of the Constituency of Gujarat Legislative Assembly as pertain to Sanjali Gram was last published on 20.10.2006 including the disputed names of 597 persons — It is not the case of any of the authorities that the procedure prescribed under the Act of 1950 was followed by Mamlatdar before passing the impugned order dated 01.06.2007 deleting the name of 597 persons — In view of the said legal position Court set aside the impugned order of Mamlatdar dated 01.06.2007 purporting to delete the names of 597 persons and directed authorities to hold elections to Sanjali Gram Panchayat as scheduled on the basis of the list of voters as published on 20.10.2006.
Held :
The list of voters for elections to Panchayats have to be based on the list of voters prepared and published for elections to the Gujarat Legislative Assembly. The amendment to the list of voters for the purpose of deleting the names of persons already included in the electoral roll published for elections to the State Legislative Assembly can be entertained on the ground that the list in question is at variance with the list of voters published for State Legislative Assembly elections. It is further clear that the names of persons already included in the electoral roll for such part of the constituency as is included in the relevant electoral division cannot be deleted under Sub-section (3) or Sub-section (6) of Section 20 of the Act without following the procedure prescribed in Section 22 of the ROP Act, 1950. The requirement prescribed by Section 22 of the ROP Act, 1950 is necessarily to be read into the provisions of Section 20 of the Panchayats Act. [Para 7]
There is no dispute about the fact that the electoral roll for that part of the constituency of the Gujarat Legislative Assembly as pertained to Sanjali Gram, was last published on 20.10.2006, which included names of 2102 persons including 597 persons against whom the newly added Respondent No. 5 had raised an objection before Election Officer. It is not the case of any of the authorities that the procedure prescribed by Section 22 of the ROP Act, 1950 particularly issuance of individual notices to these 597 persons was followed by the Mamlatdar before passing the order dated 01.06.2007 purporting to undertake revision of the list of voters in purported exercise of the powers under Section 20 of the Panchayats Act. [Para 7]
In view of the legal position already discussed hereinabove and the undisputed fact that individual notices were not issued to such 597 persons and accordingly the procedure prescribed by Section 22 of the ROP Act, 1950 was not followed. [Para 11]
Court directs the authorities to hold elections to Sanjali Gram Panchayat as scheduled on 17th June 2007 on the basis of the list of voters published on 20.10.2006. [Para 11]
Law Laid Down :
The Court must guard against any attempt at retarding, interrupting, protecting or stalling of the election procedure.
Case Law Analysis :
Kishansing Tomar vs. Municipal Corporation of the City of Ahmedabad, AIR 2007 SC 269;; Election Commission of India vs. Ashok Kumar, 2000 (8) SCC 216;; Pundlik vs. State of Maharashtra, 2005 (7) SCC 181;; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Santha vs. State of Maharashtra, 2001 (8) SCC 509.
Appearance :
Mr. M.M. Saiyed, for the Applicant No. 1,
Ms. Trusha Patel, Asst. Government Pleader, for the Opponents No. 1-3
Mr. N.V. Anjaria, for the Opponent No. 4,
Mr. V.C. Vaghela, for the Opponent No. 5.
Conclusion :
Impugned order of Mamlatdar dated 01.06.2007 deleting names of 597 persons from voter list without following procedure under Section 22 of the Act of 1950, is illegal and not sustainable — Order set aside and necessary direction issued.
Decided in Favour of :
Appellant
Application Allowed
M.S. Shah, J.—Leave to add Siraj Mohammad Patel as Respondent No. 5. Rule returnable forthwith.
Mr. Anjaria for the State Election Commission (Respondent No. 4), Ms. Trusha Patel, learned AGP for Respondent Nos. 1 to 3 and Mr. Vaghela for Mr. Siraj Mohammad Patel (who is permitted to be joined as Respondent No. 5 and who is one of the contesting candidates) waive service of Rule for the respective parties.
2. Elections to Sanjali Gram Panchayat were required to be held before 17.01.2007. The elections were not held and, therefore, this Court had to issue a writ of mandamus following the decision of the Apex Court in Kishansing Tomar vs. Municipal Corporation of the City of Ahmedabad, AIR 2007 SC 269. By our order dated 11.05.2007, we directed the authorities to hold elections to Sanjali Gram Panchayat at the earliest and in any case before 30.06.2007. We allowed the petition in terms of the following directions:—
“3. In view of the aforesaid decision, we direct the respondents to hold elections to Sanjali Gram Panchayat, Ankleshwar Taluka, Bharuch District at the earliest and in any case before 30.06.2007. In the meantime, the authorities shall consider the petitioner’s representations objecting to deletion of certain names from the voters list, more particularly, in view of the law laid down in the said decision that the election has to be held on the basis of the electoral rolls which are in force, and the elections cannot be withheld on the ground that certain claims and objections are not finally disposed of while preparing the electoral rolls or even assuming that they are not found in accordance with law.”
On 17.05.2007, the State Election Commission declared the election program and 17.06.2007 is the date of polling.
3. After the aforesaid order, the petitioner apprehended that the list of 2106 voters published on 20.10.2006 was sought to be curtailed substantially by deleting 597 names and, therefore, the petitioner filed Misc. Civil Application No. 1387 of 2007 during the summer vacation praying that the elections be directed to be held on the basis of the last published list of voters i.e. the list published by the State Election Commission on 20.10.2006. At the hearing of the said application, the learned AGP placed on record a copy of Order No. 1121 dated 25.05.2007 of the Collector, Valsad clearly stating that the elections shall be held on the basis of the list of voters published on 20.10.2006. The petitioner was accordingly permitted to withdraw the Misc. Civil Application as the grievance in the application did not survive in view of the Collector’s order dated 25.05.2007.
4. The present application has thereafter been filed on the ground that notwithstanding the statutory provisions and the previous order dated 25.05.2007 of the Collector, on the basis of which the applicant withdraw Misc. Civil Application No. 1387 of 2007, the Mamlatdar, Bharuch has passed an order on 01.06.2007 purporting to delete as many as 597 persons from the list of voters published by the Election Commission on 20.10.2006. It is submitted that deletion is purportedly made on the ground that 597 persons in question are bogus voters. It is submitted that no notices were issued to any of them. The petitioner has also produced zerox copies of the election cards issued in favour of some of the voters included in the list dated 20.10.2006 in order to substantiate the case that the deletion is ordered without following the principles of natural justice and without application of mind.
5. The relevant provisions of the Gujarat Panchayats Act, 1993 are as under:—
“13. Duration of Panchayats and their reconstitution.—
(1) Every Panchayat, unless sooner dissolved under this Act shall continue for five years from the date appointed for its meeting and no longer.
(2) An election to constitute a Panchayat shall be complete—
(a) before the expiry of its duration specified in Sub-section (1);
(b) before the expiration of a period of six months from the
