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Hon’ble Mr. Justice D.H. Waghela &
Hon’ble Mr. Justice G.B. Shah
Bharwad Virjibhai Gokulbhai
Versus
Gujarat State Election Commission Thro & Ors.
Special Civil Application No. 2317 of 20121—Decided on 03/08/2012
Gujarat Panchayat Act, 1993 (Guj. Act No. 18 of 1993) — Sections 20, 20(3) and (6) and 31 — Gujarat Industrial Development Act, 1962 — Sections 6 and 16 — Constitution of India, 1950 — Articles 243(9) and Q — Removal of names of voters appearing in voter list Sanjati Gram Panchayat — Ground that area in which they were residing was acquired by and for Gujarat Industrial Development Corporation (GIDC) — And excluded from the limits of village Sanjati by notification — Propriety of — Finding as to — Validity — The area in question where petitioners are residing was covered by notification dated 11.09.1998 declaring that the provisions relating to notified area contained in Gujarat Municipalities Act, 1963 and other provisions of Act shall extend to and brought into force in Parole Industrial Area which comprise inter alia survey No. 177 of village Sanjati — Therefore provisions contained in Panchayat Act can not be legally pressed into service for asserting the claim of petitioners in view of the facts and legal position petition is found to be misconceived and require to be dismissed — In that view of the matter second petition of four residents of village Sanjati does not service.
Held :
In view of the relevant and undisputed facts that the area in question was covered by the notification dated 11.9.1998, which was issued in exercise of the powers conferred by Section 16 of the GID Act of 1962 so as to declare that the provisions relating to the notified area contained in Chapter XVI-A of the Gujarat Municipalities Act, 1963 and other provisions of that Act shall extend to and brought into force in Panoli Industrial Area which comprised, inter alia, of many survey numbers of village Sanjali including Survey No. 177. It is also clearly stated in that notification that provisions of the Gujarat Panchayats Act, 1993 which were in force in Panoli Industrial Area shall cease to apply to the notified areas declared to be so by the notification.
[Para 7]
Even referring to the provisions of the Panchayats Act, it could be seen that under Section 20 thereof, the requirement is to maintain a list of voters for each electoral division and “ward” means an area into which a village is divided under Section 16. Under the provisions of Section 16, a village has to be divided into as many single member wards as the total number of members specified in respect of village panchayat of that village and each ward so constituted shall be an electoral division. Such scheme of the Act clearly indicates that a list of voters is to be maintained in respect of a ward or an electoral division of a village. “Village” according to Article 243 (g) of the Constitution, means a village specified by the Governor by public notification to be a village. Where by a notification issued by and in the name of Governor certain areas are expressly excluded and it is declared that the provisions of the Gujarat Panchayats Act, 1993 shall cease to apply, such areas cannot be treated as part of the village and the question of constituting a territorial constituency or a ward or an electoral division for such an area cannot arise under the Act. [Para 8]
Law Laid Down :
Availability of a very strong prima facie care balance of convenience and irreparable injury in favour of applicant may persuade the Court to grant an interim relief thought it make amounts to granting final relief.
D.H. Waghela, J.—The petitioner in SCA No. 2317 of 2012 is aggrieved by order dated 18.8.2011 of Specified Officer of Sanjali Gram Panchayat and Mamlatdar, Ankleshwar, whereby names of 161 voters appearing in the voters’ list for election of State Legislative Assembly have been removed from the voters’ list of Sanjali Gram Panchayat on account of the fact that the area in which those voters were residing was acquired by and for the Gujarat Industrial Development Corporation (GIDC). The petitioner has also challenged order dated 01.02.2012 of the Collector and District Election Officer, Bharuch, whereby representation of the petitioner against the aforesaid order has been rejected on the basis that those 161 voters were illegally residing in the area (lands bearing Survey No. 177) which has been sold to GIDC for industrial estate which, in turn, is included in the notified area excluded from the limits of village Sanjali. The other petition, being SCA No. 7330 of 2012, is filed by four residents of village Sanjali with the prayers to set aside decision if any, taken to include names of the persons residing in Panoli notified area in the list of voters of Sanjali Gram Panchayat. Thus, the petitions are practically cross-petitions and, therefore, heard and disposed together by this judgment.
2. The case of the petitioner of the first petition is that he alongwith 160 other voters are settled or roaming around village Sanjali and having their make-shift houses on the land hearing Survey No. 177, which was acquired for GIDC, Panoli in the year 1998, but their names appeared in all elections as voters of village Sanjali till the impugned order dated 18.8.2011 was issued. It was submitted for the petitioner that the impugned order was passed by the Specified Officer in exercise of his powers under Section 20 of the Gujarat Panchayats Act, 1993 (for short, “the Act”), even as the names of 161 voters continued to appear in the electoral roll for the State Legislative Assembly for village Sanjali. It was submitted that the power for revision of electoral rolls for any legislative assembly constituency is only with the Election Commission under Section 21 of the Representation of People Act, 1950 (for short, “ROP Act of 1950”) and, as long as such power is not exercised by the Election Commission, Mamlatdar could not legally delete names of the voters concerned. Relying upon judgment of this Court in Bashir Adamji vs. State of Gujarat [AIR 2007 Guj 161], it was submitted that amendment of list of voters for the purpose of deleting names of the persons already including in the electoral roll published for election to the State Legislative Assembly can be entertained only on the ground that the list in question is at variance with the list of voters published for the State Legislative Assembly elections; and such names included in the electoral division cannot be deleted under Sub-section (3) or Sub-section (6) of Section 20 of the Act without following the procedure prescribed under Section 22 of ROP Act of 1950. It was further submitted that any alteration of limit of village pre-supposes publication of notification under Clause (g) of Article 243 of the Constitution and only notification dated 10.9.1998 issued under Section 16 of the Gujarat Industrial Development Act, 1962 (for short, “GID Act of 1962”) could not be treated as a notification under Article 243-Q of the Constitution. Learned Counsel Mr. M.M. Saiyed, appearing for the petitioner, also relied upon judgment of the Bombay High Court in BIMA Office Premises Co-operative Society vs. Kalamboli Village Panchayat [AIR 2001 Bom 83] to submit that inclusion within or exclusion from any village of that area could only be effected in accordance with the provisions of the Panchayats Act. Thus, the challenge to deletion of names from the voters’ list of the panchayat has been extended to challenging alteration of limits of village Sanjali, whereby certain local area is excluded
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