(Per : HONOURABLE MR.JUSTICE V. M. SAHAI)

1. Rule. Mr.N.J. Shah, learned Assistant Government Pleader, wavies service of Rule on behalf of the respondents.

2. By way of the present petition, the petitioners have prayed for quashing and setting aside the impugned order dated 28.09.2011 at Annexure-A issued by respondent no.2 as well as restraining respondent no.2 from allotting a seat reserved for scheduled caste in village Shree Thoriyali for the Village Panchayat Election, 2011.

3. Before referring to the question involved in the petition, it is necessary to mention an important fact thatthe last election of the panchayats were held in the year2006, and one seat was reserved for scheduled caste candidates. In the present election, which is scheduled to be held on 29.12.2011 of Village Panchayat of Thoriyali, Tal: Padadhari, District: Rajkot, no seat has been reserved for the scheduled caste or scheduled tribe candidates. In this petition, the petitioners have prayed that the respondents be directed to reserve one seat for scheduled caste candidates, as the last date of filing the nomination papers was 15.12.2011. The writ petition was filed and on09.12.2011, notice to the respondents was issued which was returnable on 13.12.2011. The respondents filed an affidavit in reply. The affidavit-in-reply did not controvert the facts stated in the writ petition, therefore, the learned AGP was permitted to file additional affidavit-in-reply by 14.12.2011 which has been filed but the writ petition could be taken up for hearing.

4. The learned counsel for the petitioner has urged that the entire process of filing of nomination papers is vitiated, as one seat has not been reserved for scheduled caste and scheduled tribe candidates.

5. It has been stated in the affidavit-in-reply filed by the respondents that they rely on Section 9(4) of the Gujarat Panchayat Act, whereby it is provided that a village panchayat of a village having population not exceeding three thousand shall consist of seven members and in case of a village panchayat, where the population of village is more than three thousand, then for every one thousand or part thereof in excess of three thousand the said number of seven seats shall be increased by two.

6. The respondents have also relied upon Rule 4(1) and Rule11 of the Gujarat Village Panchayats Election (Manner of Allotment of Served Seats by Rotation) Rules, 1994. (“Rules” for short).

7. It has been stated in the affidavit-in-reply that the reservation of a seat of scheduled caste can only be made on the basis of percentage of voters in the Village Panchayat, as provided under Section 9(4) of the Act. It has further been stated in the affidavit-in-reply that in the Village Panchayat Thoriyali, the total number of voters is 2741 out of which 184 persons belong to Scheduled Caste.

8. We have heard Mr.J.V. Bhairavia, learned counsel for the petitioners and Mr.N.J. Shah, learned Assistant Government Pleader for the respondents.

9. The learned counsel for the petitioners has urged that in every Village Panchayat, one seat has to be reserved for scheduled caste candidates irrespective of the population of scheduled caste in that Village Panchayat.

10. On the other hand, Mr.N.J. Shah, learned AGP has urged that the provisions of sub-section (5)(a)(i) and Section 9of the Act have to be read together for deciding the number of seats reserved for scheduled caste candidates.

11. It is submitted by the learned AGP Mr.Shah that Part-IX of the Constitution of India deals with the Panchayats and Article 243-B stipulates that in every State, in every District Village Panchayats shall be constituted. Mr. Shah further argues that under Article 243-O there is a bar of interference by the Court in electoral matters. He therefore submitted that in view of bar imposed by the Constitution of India under Article 243-O, the Court may not interfere with the elections of the panchayats.

12. Article 243-D of the Constitution, provides