1. The petitioner asked for a writ of mandamus directing the respondent No.1 to hold the elections of the Gram Panchayats Parsodi, Kharbi and Kondhi forthwith and also for quashing of the order dated 14-7-1972 of the respondent No.2. The petitioner further asked for directing the respondent No.2 to include the name of the petitioner in the voters list of the Panchayat Samiti, Shahpur Block.
2. The petitioner is a resident of village Parsodi and also the Sarpanch of the village Panchayat of that place. This village Parsodi along with 10 other villages was included in the Nagpur Revenue District till 30th of April 1970. By a Government Notification dated 30th of April 1970, 10 villages from the Nagpur District including the village Parsodi were transferred to the Bhandara Revenue District. Subsequently by a Notification dated 28-3-1972 the limits of the Nagpur and Bhandara districts as constituted by sub-section (1) of S. 4 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 were re-constituted and the State Government in exercise of the powers conferred on it by Section 254 (1), Clause (a), excluded the villages Lohara, Peotha, Kondhi, Saori, Rajedahegaon, Parsodi, Kharadi, Thana, Kharbi and Chikhali from the Nagpur district and included them in the Bhandara district, the notification being No. ZPA-1070-16559-(1)-P, dated 28-3-1972. Originally, the Panchayats of the three villages Parsodi, Kondhi and Kharbi were included in the Mounda Block which was attached to the Nagpur District. Later on it was transferred to the Bhandara Panchayat Samiti, Bhandara Panchayat Samiti was divided into three electoral divisions viz., Pahjela, Shahpur and Dhargaon. The three villages Parsodi, Kondhi and Kharbi were included in the Shahpur electoral division and as such the members of these village Panchayats would be entitled to take part in the Panchayats would be entitled to take part in the Panchayat Samiti elections of the Bhandara Panchayat Samiti.
3. The elections of the Bhandara Zilla Parishads were held on 27-5-1972 and the petitioner and other members of the village panchayats of these three villages were the voters for that election and their names were included in the voters' list as the transfer was given effect to by that time.
4. For the elections of the Panchayat Samiti of the Bhandara Block in which these villages were included a voters' list was published on 12-7-1972 by the respondent No.2, but wile preparing this list the names of these three villages were shown in that list, but the names of the voters from the villages were kept blank. From each village Panchayat there were 9 electors for the panchayat Samiti. Thus from these three villages Parsodi, Kondhi and Kharbi 27 members were excluded from the Panchayat Samiti list. The petitioner and other persons like him whose names were excluded applied to the Voters' Registration Officer, respondent No.2, on 14-7-1972 for inclusion of their names in the voters' list. The respondent No.2, however rejected their application by order of the same date i.e. 14-7-1972. The respondent No.2 rejected the application on the ground that the normal term of 4 years of the village Panchayat Parsodi expired on 3-7-1971 and even the extended term also expired on 3-7-1972 and, therefore from 3-7-1972 onwards the members of the village Panchayat Parsodi ceased to be the members thereof and, therefore, their names cannot be included in the electoral roll of ensuing election of the Panchayat Samiti. The petitioner and others like him, then applied to the Collector on 20-7-1972 requesting him that the elections of the Bhandara on 31-7-1972 be postponed. No action appears to have been taken on this application. The petitioner, therefore, approached this Court by this writ petition. WE issued a rule on this petition on 27-7-1972 and also issued on that day an interim injunction restraining the respondent No.1 from holding the elections of the Panchayat Samiti, Bhandara fixed for 31-7-1972.
5. After the interim injunction was granted, there was an application by one Bhagwan Mahadeo Potwar of village Saori for intervention and for modification of the stay order passed by us on 27th July, 1972. We heard this application on 29-7-1972 and permitted the said applicant Bhagwan to intervene, but we rejected the prayer for modification of the injunction as sought by the said intervener, with the result that the elections of the Bhandara Panchayat Samiti which were to be held on 31-7-1972 could not be held.
6. Section 28 of the Bombay Village Panchayats Act, 1958, provides for the commencement of the term of office of the members elected at a general election of a Panchayat. According to Section 28 (1) of the Act, the term of office of the elected members of the Panchayat which is to be held on a day fixed by the Collector within four weeks from the date on which the names of the elected members are published under Section 10. Under Section 27 (1) except as otherwise provided are to hold office for a term of four years. This term of four years can be extended by the State Government for a period not exceeding in the aggregate five years, that is, for a maximum period of one year. Sub-section (2) of S. 28 provides that the term of office of the outgoing members shall be deemed to extend to and expire with the day before such meeting.
7. Now, there have been no fresh elections of the village Panchayats of these three villages Parsodi, Kondhi and Kharbi which are included in the Shahpur electoral college of the Bhandara Panchayat Samiti and the sitting members of these village Panchayats continue to be the members of the respective panchayats till fresh elections are held to the Panchayats in those villages. On the date when the voters' list for this Panchayat Samiti was prepared the members of these three village Panchayats continued to be the members of these village panchayats and as such, they were entitled to have their names included as voters in the electoral roll of the Panchayat Samiti, Bhandara. The voters' list for the Panchayat Samiti has to be prepared under Rule 3 of the Maharashtra Panchayat Samitis (Registration of Voters and Conduct of Election) Rules, 1962. It requires the Collector to prepare a voters' list through an officer appointed by him for each electoral division in a block whose responsibility will be to keep the voters' list up-to-date by including therein the names of all persons who are for the time being members of Panchayats and of an Executive Committee, if any and by deleting therefrom the names of all persons as and when such persons cease to be members thereof.
8. Since the members of the village panchayats of these three villages, namely, Parsodi, Kondhi and Kharbi were at the time of this electoral roll members of the panchayats and continued to be the members of the panchayats there names had to be included in the said electoral roll and the Voters' Registration Officer was not right in not including the names of the members of these village panchayats like the petitioner in the said electoral roll. Undoubtedly these three villages were included in the Shahpur electoral college and in the electoral roll the names of these villages have been shown but the names of the members from these village panchayats have been omitted from the said list. This Court in Special Civil Appln. No. 617 of 1967 decided on 28-7-1967, Deorao v. Tahsildar, Hinganghat, reported in 1968 Mah L.J.Note No. 4, has taken a view that sub-section (2) of Section 28 creates a fiction by which the tenure of the office of the members of the Panchayat is capable of being extended to a period of even beyond five years and, therefore, if no fresh elections have been held after the expiry of the first term or the extended term, then till such elections are held these members continue to the be the members of the respective village Panchayats. The names, therefore of the petitioner and persons like him, that is, the members of the three village panchayats had to be included in the electoral roll.
9. We, therefor, quash the order of the respondent No.2 dated 14-7-1972 and direct the respondent No.2 to include the name of the petitioner in the voter's list of the Panchayat Samiti, Shahpur Bloc of the Bhandara Panchayat Samiti. All the members of the village Panchayats in the Shahpur electoral division are entitled to have their names included in the voters' list for the Panchayat Samiti, since the members of these village Panchayats continue to be the members of their respective village panchayat till the elections are held and they are replaced by the duly elected members. On the basis of such corrected electoral roll by including the names of the voters from the Shahpur electoral division, elections to the Bhandara Panchayat Samiti will not be held according to the programme to be fixed by the respondent No.1. The interim injunction granted by us on 27-7-1972 is hereby dissolved. The elections to the other blocks which were to be held on 31st of July 1972, but which were stayed on account of the interim injunction granted by this Court will not be held on a date to be fixed by Collector. Since all the other formalities prior to the holding of elections have been complied with in the case of other two electoral blocks, it will be necessary to go through the formalities again, but it will be sufficient only to hold the elections on the dates to be fixed by the respondent No.1. So far as the Shahpur electoral division is concerned, all the formalities will have to be gone into after the inclusion of the names of the voters from the said electoral division and that will take some time and the elections for this block will not synchronise with the elections of the Shahpur division will necessarily be delayed and if the results of the elections of the other two blocks are declared and they are in a position to constitute a Panchayat Samiti, the electors from the Shahpur division are likely to be prejudiced. We, therefore direct that the results of the elections of all the three blocks will be declared on one and the same date, though the elections might be held at different times. Mr.Deshpande at this state says that the elections of the Pahela Electoral Division have already been declared since there were no contestants in that constituency. If that is so declared, then the direction given by us above will not effect this constituency.
10. With these directions, we allow this petition. the respondents 1 and 2 will pay the costs of the petitioner. The intervener will not get any costs as already ordered by us.
11. Petition allowed.