1. The facts in this petition are not in serious controversy since the same could be ascertained from the relevant Gazette Notifications published by the authorities The petitioner is a voter in the Mandal Panchayat Constituency of Thuruvanur in Chitradurga District. It is common ground that the electoral roll of Chitradurga Zilla Parishad Constituency is also the electoral roll for the Thuruvanur Mandal Panchayat Constituency under Section 9 of the Karnataka Zilla Parishads, Tatuka Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (in short the Act). It is also not in dispute that the petitioner was eligible to vote in the elections to the Mandal Panchayat and also to contest for the Mandal Panchayat from the said Constituency. The elections to the Mandal Panchayat for the first time were held after the Act came into force.
The first Notification under Section 5(1) of the Act was issued by the State Government notifying the number of Members of each Mandal Panchayat in Chitradurga District on 6-6-1986 and was published on 11-6-1986, We are concerned with Thuruvanur Mandal Panchayat and the State Government under Section 5(1) of the Act had fixed the total number of seats for that Mandal Panchayat at 26. This notification is the foundation of the issue of the subsequent notifications by the Deputy Commissioner in exercise of the power conferred under Section 5(5) and the proviso to Section 5(2) and 5(4) of the Act. That notification, Annexure-A, was made on 28-7-1986 and published in the Karnataka Gazette on 30-7-1986. It is common ground that the petitioner is not aggrieved by this notification. The second notification issued by the Deputy Commissioner is a corrigendum to the first notification, Annexure A, is Annexure-B dated 19-11-86 and published in the Gazette dated 27-11-1986. The changes made by him in that notification should be noticed at this stage. As regards Thuruvanur-1 Constituency the territorial limit was changed from House Nos. 1-238, 1222-1368A to House No. 1-238, 1322-A-1368A. The number of seats allotted was altered from 3 to 2. As regards Thuruvanur-2 Constituency there was no change in the territorial limit as also in the number of seats. In Thuruvanur- 3 Constituency, the house numbers were changed from House Nos. 48A-623A to House NO.481A-725 and the number of seats allotted was reduced from 3 to 1. In respect of Thuruvanur-4 Constituency, the territorial limit was changed from House Nos.570-949 to 726-823A and the total number of seats allotted was reduced from 3 to 1. The territorial limit of Thuruvanur-5 Constituency was changed from H.Nos. 950-1165:1A-127:1 to H.No. 570-957 but there was no change in the number of seats allotted. As regards Thuruvanur-6 Constituency, the territorial limit was changed from H.Nos. 70-110:1186-1319 to H.No. 1186-1261:70-110 and 1A-127-1 and the number of seats allotted was reduced from 3 to 2. The territorial limit of Thuruvanur-7 Constituency was changed from H.Nos-865-A. 1954:1-69 to 865A-1956A:1-69:957-1065 and 1264-1319 but no change was effected in the number of seats allotted. As regards Thuruvanur-8 Constituency, the territorial limit was changed from Kadabanakatte H.Nos. 6-127 to Kadabanakatte H.No. 6-108 but the number of seats remained the same. In Thuru-vanur-9 Constituency, the territorial limit was changed from Kadabanakatte H.Nos. 130-227 to Kadabanakatte H.No. 111-159 and 161-200, but the number of seats remained the same. As regards Thuruvanur-10 Constituency, the change in territorial limit was from Kadabanakatte H.No. 228-320 and Myasarahatti to Kadabanakatte H.No. 200A 320A and Myasarahatti and the number of seats was increased from 1 to 2. The territorial limits of Thuruvanur-11 Constituency remained the same, but the number of seats allotted was increased from 1 to 2. The territorial limits of Thuruvanur-11 Constituency remained the same, but the number of seats allotted was increased from, 1 to 2. The territorial limit of Thuruvanur-12 Constituency was changed from Bangarakkanahalli to Bangarakkanahalli Complete Village and Havalenahalli H.No. 1-20 and the number of seats allotted was increased from 1 to 3. As regards Thuruvanur-13 Constituency, the territorial limit was changed from Bogalerahatti Aavalenahalli to Bogalerahatti and Aavalenahalli H.No. 21-85 and the number of seats allotted was increased from 1 to 3. At Table II in the original notification at Annexure-A, Thuruvanur-1 to 6 Constituencies were the Constituencies in which seats were reserved for S.C. and S.T. and in each of these Constituencies one seat was given to S.C. and S.T. to make up a total of 6 for S.C. and S.T. candidates. But in Annexure-B, the reserved constituencies were altered as follows:
Thuruvanur-2, 6, 7, 10, 12 and 13. The total number of seats reserved for S.C. and b.T. remained the same, i.e., 6, At Table III dealing with the reservation of seats and the constituencies for women, in the original notification at Annexure-A, the Constituencies in which seats were reserved for women were Thuruvanur-1 to 6 and one seat reserved for S.C. and S.T. woman was in Thuruvanur-7 Constituency. But, in Annexure B, the Constituencies in which seats were reserved for women were Thuruvanur-5, 7, 12 and 13 and the Constituency in which one seat was reserved for S.C. and S.T. women was Thuruvanur-11. The total number of seats reserved for women was 6 in Annexure-A, but the number was reduced to 4 in Annexure-B. Number of seats reserved for S.C. & S.T. women remained the same in both Annexure-A and B, but the Constituency was altered from Thuruvanur-7 to Thuruvanur-11.
2. It cannot be disputed that these changes were substantial changes allegedly made to remove the clerical errors or other errors committed by inadvertence. The territorial limits were altered considerably in a number of constituencies and the number of seats in regard to S.C. & S.T. and reserved for S.C. & S.T. women was also altered. This notification at Annexure-B which is impugned in this Writ Petition was again amended by a corrigendum notification at Annexure-'C' which bears no date. But, it was published in the Gazette dated 24-12-1986. The reasons for making this corrigendum are not given in the notification. What all it says is 'This is also a corrigendum to the notification dated 27-11-1986.' So, in this notification the territorial limits of Thuruvanur 8 to 10, 12 and 13 Constituencies are once again changed. Thuruvanur-8 Constituency was changed to Kadabanakatte H.No. 6 to 127 and number of seats allotted was increased to 2. Thuruvanur-9 Constituency was changed to Kadabanakatte H.No. 128-159. The territorial limit of Thuruvanur-10 Constituency and the number of seats allotted remain the same. In respect of Thuruvanur-12 Constituency the territorial limit was changed by deleting House No. 2 to 20 and the territorial limit of Thuruvanur-13 Constituency was altered to Bogalerahatti complex and by deleting Havalenahalli H.No. 21-85 and the number of seats was reduced to 2. There is no change in Table II. But the change brought about in Table III is that one more seat is added to Thuruvanur 8 Constituency as reserved for women. A further corrigendum was made by the Deputy Commissioner on 26-12-1986. This was published in the Gazette dated 24-12-1986. This discrepancy was explained by the learned Government Pleader in the return filed by him and I will consider the same at the appropriate stage. In this notification the change made was that the territorial limit of Thuruvanur-9 Constituency is corrected as 'Kadabanakatte H.No. 123 to 159 and 161 to 200.' After these notifications were published the election process commenced. The calendar of events was published on 30-12-1986 and the elections were held on 20-1-1987. Some of the results were announced earlier because there was no contest and the results of the elections of the contested seats were announced on 21-1-1987. The Writ Petition was filed on 6-4-1987, i.e., within 3 months after the announcement of the results.
3. So, on these facts' the first point for consideration is whether the petition has to be thrown out on the ground of laches. The petitioner has explained the delay in filing this petition on the following grounds:
'There is no delay at all in presenting this Writ Petition, because the process of elections were over by the end of January and the State machinery was plunged in the post election developments. The petitioner could not even get at the election result sheets. As stated above the Tahsildar and the Shirastedar who were deeply influenced by the Jagalur Assembly MLA and interested in their own caste did not grant any certified copy of the relevant documents. The petitioner and his friends made frantic efforts from the beginning of February to get the notification documents. They were able to secure the same at Bangalore with great difficulty. The Tahsildar and the Shirastedar knew pretty well that by delaying the grant of copies, the illegal elections could become final and no remedy can be obtained by any Court of law. Having regard to this circumstances it is pre-eminently a fit case to exercise the Writ Jurisdiction of this Hon'ble Court.'
It is well settled whether a petition under Article 226 of the Constitution should be thrown out on the ground of laches would depend on the facts and circumstances of each case and the nature of right infringed by the executive authorities. The petitioner in support of this plea has produced the copy of an application made to the Mandal Panchayat, Chitradurga Taluk, praying for copies of the declaration of results, result sheet in Form III, Form 36 and Form 10 with a view to take up the matter to this Court. That application was made on 7-3-1987 and was received by the Mandal Panchayat Office on 7-3-1987. He has produced copies of the Challans for the payment of requisite copying charges and they bear the Bank Seal dated 9-3-1987 and 10-3-1987. These documents do not form part of the records of the Writ Petition as they were produced subsequently in the course of the hearing and I have no doubt about the authenticity of these documents.
4. A number of cases have been cited by both the learned Counsel and I will consider them presently. In the earliest case decided by this Court in ALLHADAD SAHEB AND ANR. v. STATE OF MYSORE AND ORS 17 Law Reports 757. which also deals with a case of election to the Nippani Municipal Councillors under the provisions of the Mysore Municipalities Act, 1964, the contesting respondents raised the plea of laches before the Division Bench of this Court. It was contended that there was inordinate delay in challenging the notifications which were published in the month of February 1968 and the Writ Petitions were filed on 4-7-1968. The Division Bench considered this point in para 10 of its Judgment and observed:
'In support of the argument that laches would be a sufficient ground for rejecting a Writ Petition of the type under consideration, our attention was drawn to the following paragraph from 'Extraordinary Legal Remedies' by Ferris (1926 Edn.)-
'The Writ will generally be refused in all cases where petitioner fails to show that he has proceeded expeditiously after discovering that it was necessary to resort to it, and especially where great public inconvenience will result from its use.' .(P.202).
In finding out whether a petitioner is guilty of laches or not, the Court has to refer to his conduct, to find out whether there was any negligence or omission on his part in not approaching the Court earlier. The passage quoted above emphasises that the delay would be referable to the period 'after discovering that it is necessary to it (remedy)'. We have already pointed out how the petitioners were required to find out the material to contradict the figures given to them by the officials and then decide upon the question of approaching the Court for appropriate reliefs. We have also mentioned the fact that the authenticated electoral roll for each of the Wards of Divisions was not ready till the middle of April 1968. All factors considered, we are not satisfied that the petition can be dismissed on the ground of laches.'
The Division Bench further observed after rejecting the plea of laches:
'It is true that the order proposed to be passed by this Court will result in inconvenience to the public, as the whole process of election has to be gone through afresh. But the allotment of two seats to the Scheduled Castes has resulted in deprivation of the rights of candidates contesting the election and of the voters in electing a candidate for the general seat. Besides, the delimitation of the various Divisions which is both arbitrary and vague must have affected the rights of many of the voters in voting for a candidate of their own choice in one Ward or the other. Therefore, where the aforesaid actions of the Government have resulted in deprivation of the legal rights that are conferred by the Act, any inconvenience that is likely to be caused as a result of the setting aside of such illegal actions ought to be considered as wholly inconsequential.'
A Division Bench of this Court in a petition challenging the elections under the Karnataka Village Panchayats and Local Boards Act, 1959, dealt with the question Of laches in K. KENCHANAGOUD v. THE STATE OF KARNATAKA AND ORS ILR (Karnataka) 1979(1) 1092. Venkataramtah, J. as he then was, speaking for the Court has observed as follows:
'In so far as the second ground urged by Sri. Raya Reddy is concerned, it has to be stated that the impugned Notification was published on 27th April 1978 and that the Writ Petition was filed on 17th June 1978 within about 7 weeks. In the meanwhile the petitioner had approached, the Deputy Commissioner with a petition requesting him to rectify the mistake committed by him. In fact, the date of poll had been fixed by the calendar of events as 30th June 1978. In the instant case, however, owing to withdrawal of other candidates, respondents A to 16 were declared as elected on the last date for withdrawal of nominations i.e., 5th June 1978. In the circumstances of this case, we cannot say that there has been any inordinate delay which disentitles the petitioner to approach this Court under Article 226 of the Constitution.'
In another decision of the Division Bench of this Court in Writ Petition No. 608 of 1960 disposed of on 11-4-1961 Karegowda v. State of Karnataka it was contended that the application of the petitioner should be dismissed on the ground of lachee. The Division Bench observed as follows:
'It is not in every case where there is a little delay in the presentation, that the Writ Petition is liable to fail on the ground of laches; Each case must be decided on its own fact, and having regard to the circumstances and facts of this case, it does not appear to me that we should be justified in refusing to exercise our jurisdiction on the ground that the petitioner did not present this Writ Petition before the election was conducted or on the ground that he did not invoke our jurisdiction at an earlier stage.'
The Division Bench further observed thus:
'There is no principle of law on which it could be urged that our jurisdiction in a matter like this depends upon whether or not the election has been held after the contravention of the statutory provision of Section 5(4) of the Act. If the infraction of the statutory provisions is a sufficiently serious infraction, it seems to me that the question as to whether after such infraction and before the exercise of our jurisdiction an election has been held, can hardly be regarded as a relevant factor determining the existence or otherwise of the jurisdiction of this Court.'
5. In my view, this observation of the Division Bench is directly applicable to the facts of this case since the main thrust of the argument of the learned Government Pleader is that the petitioner having waited till the results of the elect ion were over, he should be denied the relief of invoking the extraordinary jurisdiction under Article 226 of the Constitution. No doubt the impugned notifications were made before the calendar of events were published. No doubt that the elections were also held before the Writ Petition was filed. But we are dealing with the case of the elections to Mandal Panchayat which is being held for the first time since 1978. This Act was supposed to be a model piece 'of legislation for the entire Country and it was enacted with a view to decentralise the monolithic structure of the administration, so that the common man has a chance of managing his own affairs without the intervention of the bureaucratic control over his welfare. This Act also envisages to some extent the implementation of the Directive Principles of the Constitution mandated under Article 40 of the Constitution. That being the case when an ordinary man in the village had high hopes in the proper implementation of this Act in order to ensure that he would also have a chance for participating in the administration of the Mandal Panchayat in which he has a right to vote and a right to participate, it is all the more necessary that the authorities charged with the duty of conducting the elections adhere to the strict requirement of the Act and the Rules made thereunder.
6. I have already noticed in the earlier portion of the order that the changes brought about in the territorial limits of the various constituencies and also in the allotment of the seats to these constituencies in question. They are not mere changes of a clerical nature, but changes of a substantial nature and they have been altered not once but thrice and therefore a voter in the Mandal Panchayat who has a locus standi to challenge the elections if aggrieved by the notifications impugned herein, has of necessity taken some time to collect all the materials for preparing a proper brief for this Court, he should not be denied the constitutional right under Article 226. These Gazette publications are made in Bangalore and the voter in a village is not expected to rush to Bangalore every time a notification is published. The elections were held in the end of January 1987 and within the period of three months from the date of the announcement of the results to the the various constituencies in question the petitioner has approached this Court. Therefore, I am satisfied that the petition does not suffer from laches. Though the petitioner has averred that he made representations to the authorities to correct the errors committed by them, it is not necessary to go into that aspect of the case since the elections have already been held and so the only proper course, open to the petitioner was to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution and not by making a representation before the authorities and that has been done without inordinate delay.
The decisions cited by the learned Government Pleader in support of the plea that the petition should be dismissed on the ground of laches may be noticed. In AJJAPPA PALLAPPA v. THE DEPUTY COMMISSIONER AND ORS.19 Law Reports 173, the Division Bench of this Court observed thus:
'Applying the above principle we find that in this case public inconvenience has been caused and prejudice to the third party, i.e., 4th respondent, has also ensued. In addition to the public inconvenience and cost, the 4th respondent has also spent time, energy and money which she would have avoided, if the petitioner had taken action without delay. While referring to the doctrine of laches, the Supreme Court has referred to what has been stated by Sir Barnes Peacock in Lindsay Petroleum Co, v. Prosper Armstrong Hurd, Abraham Farewell etc., etc., which is as follows:
'Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practicably unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapses of time, and delay are most material.'
Now in this case, the petitioner has come to this Court after the declaration of the results. It is quite possible that the petitioner's conduct depended on the result of the election. It is perhaps the result of the election that has now prompted him to make this application for quashing the result of the election. He has not asked for quashing the order, directing the holding of the bye-election which he could have done earlier. In this case, there is delay and laches on the part of the petitioner which justify our refusing the petitioner any relief in this petition.'
The facts in that case may be noticed:
'The publication of calendar of events in this case was on 25-9-1968. The election was actually held on 16-10-1968, and the result of the election was declared on 17-10-1968. The petition was filed on 31-10-1968. The respondent's Counsel pointed out that in WP 1326/68 the petitioner had challenged the appointment of the 4th respondent made by the Deputy Commissioner in exercise of the powers under Section 5(5) of the Act, on 3-4-68. The petition was filed on 23-4-68. The petitioner in this case has stood by without taking any action against the order directing bye-election to be held and it is only after the declaration of the results that he has come forward with this Writ Petition. It was open to the petitioner to take legal action immediately after 25-9-1968 and before the actual elections were held on 16-10-1968.'
On these facts, this Court found that it was open to the petitioner to take legal action immediately after 25-9-1968 and before the, actual elections were held on 16-10-1968. The question of laches, as observed in the decisions of the Division Bench of this Court, has to be determined regard being had to the facts and circumstances of the particular cases. In the 3 decisions of this Court, it has taken the view that when the party has no remedy by way of an election petition, his only remedy is to approach this Court under Article 226 of the Constitution. That is the reason the Division Bench has ruled that the question of laches has to be dealt with on the facts and circumstances of particular cases. In RAMA BOVI v. STATE OF MYSORE AND ORS1979(2) Mys.L.J. 6. the challenge to the election held under the Mysore Village Panchayats and Local Boards Act was rejected by this Court on the ground of laches. In that case the undisputed fact was that the petitioner filed the petition beyond the period within which the election petition could be filed to challenge the validity of the election. Obviously, the petitioner cannot take advantage of the extraordinary jurisdiction of this Court in order to avail himself of the remedy which was barred on account of the statutory limitation governing the period of limitation for filing the election petition. So, that decision should not be held against the petitioner in this case, since it is not the case of the contesting respondents that the petitioner had the alternative remedy of filing an election petition. In CHANNABASAPPA BASAPPA v. DEPUTY COMMISSIONER, DHARWAD AND ORS 1968(2) Mys.L.J, 249. the notification issued under Section 5(3) of the Mysore Village Panchayat and Local Boards Act omitting certain areas comprising a number of houses and thus denying the right of franchise in the Panchayat Election to the voters who are the residents was challenged on the ground that it was not in conformity with Section 5(3) and (4) of the Mysore Village Panchayat and Local Boards. Act. The voters aggrieved by the said notification challenged the validity of the same under Article 226 of the Constitution. The Division Bench of this Court observed that 'if any voters were aggrieved by the omission of the areas in the notification under Section 5(3) they should approach the Court for relief without delay before the date of the poll. A voter whose house is included in the Constituency and therefore in the notification, is not a person aggrieved to claim relief under Article 226.' In the very same volume, i.e., 1968(2) Mys.L.J., page 138 H.G. Gopala Gowda v. Ors. v. State of Mysore the Division Bench of this Court has taken the view that-
'If the determination of seats allotted to each constituency is impeached as not having been made in accordance with law, it is for the person who makes the impeachment to produce proof that it is invalid, and when the argument of invalidity rests on the contention that the ratio of Section 5(4) is not maintained it is for the person who asserts it to prove it by furnishing the necessary information including what the population of each constituency was.
Where the Electoral Registration Officer functioning under the Representation of the People Act included najnes in the electoral roll of the Legislative Assembly two days before the polling for election under the Panchayat Act, but the electoral roll of the Panchayat was not altered and the additional persons did not cast their votes, the election is at affected.'
In the very same volume, i.e., 1968(2) Mys.L.J. at page 568 Sharanappa Irappa and Ors. v. Deputy the Division Bench of this Court upheld the plea of laches on the following facts:
The polling took place on 11-3-1968. Results were announced within 5 days thereafter. Some of the. petitioners presented the Writ Petition on 15-4-1968 calling in question the election so conducted. Nearly a month after the declaration of the results, they withdrew that petition which was dismissed on 8-6-1968 and a new Writ Petition was filed on 10-6-1968. It was explained before the Division Bench that the first Writ Petition was withdrawn so that the contention based on Clause (a) of the proviso to Section 3 of the repealing Act could be included in the challenge to the election. The Division Bench observed on these facts thus:
'In the context to the challenge to the election which is founded on the failure on the part of the Deputy Commissioner to make a geographical division of the Panchayat area into constituencies it was submitted that the constituencies so determined did not include all the houses in that area and that quite a few of them were excluded from all the constituencies . During the argument, although there is no mention to that effect in the affidavit, Mr. Datar made the submission that some of the houses were included in more than one constituency. In the counter affidavit produced on behalf of the State the omission with respect to some of the houses which are not included in any of the constituencies is explained on the ground that these houses are either temples Commissioner or shops and on the question whether such exclusion is or is not permissible we should not say anything in this Writ Petition. We think that we should not embark upon a discussion about the inclusion of some of the houses in more than one constituency when there is no allegation about it in the petitioner's affidavit, and with respect to the defect in the determination of the constituencies we are inclined to take the view that we should not in any extremely belated Writ Petition presented by the petitioners embark upon any investigation into the validity of that complaint.'
7. In all these 3 cases there was a dispute on facts about the validity of the actions impeached by the petitioners therein. In the case on hand, the Deputy Commissioner on whose behalf the verifying affidavit was filed by the Head Quarters Assistant has submitted thus:
'The notification dated 28-7-1986 issued by the Deputy Commissioner contained several defects; hence that notification is amended by notification No. ZP.MP.CR.36.4/7. 86-87 dated 19-11-1986 (published in the Gazette on 27-11-1986). The notifications issued earlier under Section 5(5) of the Act is further amended by notification No. ZP.MP.CR.36.4/7/86-87, so as to bring them in conformity with the provisions of the Act. This notification is issued by the Deputy Commissioner on 23-12-1986 and it is delivered at the Government Press, Bangalore, on 23-12-1986 for publication in the official gazette; this notification is published in the extraordinary gazette on 24-12-1986. The voters of House Nos. 161 to 200 of Thuruvanur-9 constituency were -left out by oversight; hence the Deputy Commissioner issued notification No. ZP.MP.CR.36.4/7/86-87 dated 26-12-1986, on, 26-12-1986. This notification is delivered at the Government Press, Bangalore, on 26-12-1986 and accordingly it is published in extra-ordinary gazette on 26-12-1986. The date 24-12-1986 mentioned in the gazette as the date Of publication may be a clerical mistake. All the notifications under Section 5(5) of the Act, are issued by the Deputy Commissioner prior to the publication of calendar of events by the Returning Officer and all these notifications are published in the Official Gazette prior to the issuance of calendar of events by the Returning Officer. The Returning Officer on 30-12-1986 issued calendar of events under Rule 12(3) of the Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya 'Panchayats (under Act of election) Rules, 1985, in respect of election to Thuruvanur Mandal Panchayat. The calendar of events issued by the Returning Officer is in conformity with the notifications issued by the Deputy Commissioner under Section 5(5) of the Act.'
8. It should be noticed on the basis of these undisputed facts that, as the notification at Annexure-A contained several errors, the subsequent notifications which are produced at Annexures-B, C and D came into existence. Therefore, there is no dispute on facts at all in this case and the only point for determination in this petition is the power of the Deputy Commissioner to amend the notifications in the manner he has done. I am of the view that in the decisions rendered by the Division Bench of this Court on similar facts, this Court has consistently taken the view that invalidity of the notifications under Section 5(3) of the then Mysore Village Panchayat Act calls for interference under Article 226 of the Constitution since the aggrieved party has no other relief. I may also add that the importance of delimiting the constituency and the allotment of seats to a particular constituency is now underscored in the Punjab Municipalities case ATMA SINGH AND ORS. v. THE STATE OF PUNJAB AND ORS : 3SCR340 . and the Division Bench which had declined to exercise their jurisdiction , under Article 226 of the Constitution did not have the benefit of the views of the Supreme Court on similar points that arose for consideration in Punjab Municipalities case and M,P. Village Panchayat Act case STATE OF MADHYA PRADESH AND ORS. v. DEVILAL : AIR1986SC434 to which I have made a detailed reference in the later part of this order and, therefore, the discretion to be exercised by this Court under Article 226 of the Constitution depends on the facts and circumstances of the particular case. In the light of the earlier decisions of this Court and also the Supreme Court this is a fit case for interference under Article 226 of the Constitution.
In PUTTAPPA v. DEPUTY COMMISSIONER, DHARWAR AND ORS1969(1) Mys.L.J. 407.this Court has laid down thus:
'But although we take the view that the reservation for the scheduled castes was made in disregard to the correct principle, we think we should not exercise our jurisdiction in this case. The allotment of seats was made by the Deputy Commissioner as early as on January 8, 1968, and the notification by which he made that allotment was published in the Gazette on January 19, 1968. The polling date was March 9, 1968 and the petitioners postponed the presentation of this Writ Petition until March 9, 1968 and presented it only just a week before the polling had to commence. It is a familiar principle which has been accepted by this Court in more than one case that in a case where the exercise of our jurisdiction would cause great public inconvenience by reason of the procrastination on the part of the petitioner who appeals to our jurisdiction, our jurisdiction should be refused, and, it is on this ground that we decline to exercise our jurisdiction under Article 226 of the Constitution.'
It should be noticed that Justice Somnath Iyer who delivered the Judgment of the Division Bench has taken a contrary view in Writ Petition No. 608 of 1960 disposed of on 11-4-1961 to which I have already adverted to in para 4 of my order. That only shows that the question of discretion has to be determined on the facts and circumstances of a particular case. In my view the decision of the Supreme Court in Punjab Municipalities case which dealt with the power of the authorities to amend the delimitation notifications has considerable impact on the decision in this Writ Petition. Having had the benefit of that decision of the Supreme Court, it is but proper to interfere under Article 226 of the Constitution in order to prevent the abuse of electoral process in the local bodies. As observed by the Supreme Court in : AIR1986SC434 , assuming that the Deputy Commissioner had the power to amend the notification Annexure-A in the manner he has done, the proper course would have been to notify all the persons concerned for making the changes not only in the delimitation of constituency and also in the allotment of seats to the respective constituency. Undisputedly, the Deputy Commissioner has not given any such notice. What he has done is that suo moto he amended the notifications without caring for the interest and aspirations of the voters who we're desirous of participating in the election or for the interest of the candidate who had offered themselves for being elected as Members of the Mandal Panchayat. It should also be noticed that some of the elected Members have supported the petitioner in this petition. They have supported him because all was not well with the election conducted by the Election Officer on the basis of the amended notifications. For these reasons, though public inconvenience is caused and public expenditure will be incurred by setting aside the elections, 1 am of the view that purity of electoral process should be maintained at all costs and that could be done only if the authorities concerned exercise their power in the manner expected of them under Section 5(5) of the Act. I also should take, note of the averments of the learned Counsel for the petitioner that he has not challenged the purity of the actions of the Returning Officer, but only the elections held by him on the basis of the impugned amended notifications. If the impugned notifications are bad in law, the results of the elections on the basis of such notifications are also bad in law.
9. The question of maintainability of the petition is not seriously challenged by the contesting respondents. Indeed it could not have been challenged in the light of the several decisions of this Court arising under the provisions of the Karnataka Village Panchayat Act that was then in force. In Karegowda's case the Writ Petition was fifed after the nominations were made and before the elections were held. In the absence of a stay order elections were held during the pendency of the Writ Petition. The complaint was that the distribution of seats in different wards ,was made without regard to the population. The notification was quashed on that ground and the elections were set aside.
In Alladada's case, the delimitation notification was published on 20-2-1968; Calendar of events was published on 31-5-1968; elections were held on 30-6-1968 and the Writ Petition was filed on 4-7-1968. The violation of law in that Writ Petition is that the seats allotted to Scheduled Caste was not in proportion to the population. On that ground the delimitation notification was quashed and the election was set aside.
In Kenchangowda's case the impugned notification was published on 27-4-1978; Elections were scheduled to be held on 30-6-1978; results of the election were declared on 5-6-1978 as there was no contest. Writ Petition was filed on 17-6-1978. The violation of law complained was that the ratio between the seats allotted and the population of the constituency was not maintained and hence the notification was quashed and the election was set aside and fresh elections were ordered. The SLP filed before the Supreme Court was not admitted.
In RAMESH v. STATE OF KARNATAKA AND ORS. 1981(1) KLJ SN.44, the delimitation notification was issued on 25-4-1978; Corrigendum was issued on 18-10-1978 and election was held on 13-11-1978. The Writ Petition was filed after the elections. The violation of law complained of was that the corrigendum was issued without jurisdiction as the ratio between the seats and the population of the constituency was not maintained. The impugned notification was quashed by this Court on that ground and the elections were set aside and as a result of which the 2 nominated Members were unseated and they had to take their chance in the fresh election. The SLP No. 2639 of 1981 filed by the contesting respondents was not admitted before the Supreme Court.
In B. SHIVANNA v. THE ELECTION OFFICER, BEGURHUBLI AND ORS., 1968(2) Mys.L.J. 192 the delimitation notification was issued on 22/27-1-1968; Corrigendum was issued on 27/13-2-1968. The said notification was challenged even before the elections were held and on the ground that the corrigendum was not in accordance with the number of seats allotted to each block, the corrigendum was quashed and the election held subsequent to the filing of the Writ Petition was set aside.
10. I have referred to these cases with a view to satisfy myself that the consistent view of this Court in the matter of elections to local bodies is that, if any violation of law is committed in issuing the notifications fixing the number of seats in proportion to the population of the constituency concerned, this Court should readily interfere with the elections whether the petitions were filed before the election or after the election as the very object of interference is to ensure the purity of elections and also the right of the parties to participate in a free and fair election which is one of the basic structure of the Constitution. In these petitions, the petitioner's case is that he being a voter he can challenge the impugned notifications and therefore his right cannot be questioned in the light of the decision of the Division Bench of this Court in Kenchana-gouda's case. That was a Writ Petition challenging the notification made under Section 5(3) of the Karnataka Village Panchayats and Local Boards Act, 1959. The petitioner in that case was a voter and he had questioned the validity and correctness of the notification dated 15-4-1978 issued by the Deputy Commissioner, Bellary under Section 5(3) of the said Act dividing Mattihalti village into four constituencies for the purpose of election to the Village Panchayat in question. The said notification was published in the Karnataka Gazette on 27-4-1978. When the petitioner found that the delimitation of the constituencies made by the Deputy Commissioner was not in accordance with Sub-section (4) of Section 5 of the said Act, he made a representation to the Deputy Commissioner setting out the infirmities in the notification and requesting him to publish a fresh notification. The petitioner having not received any reply to the said representation and also having found that no action was taken by the authorities concerned to set right the mistake committed by them, he filed the Writ Petition on 17-6-1978. One of the contentions taken in the Writ Petition was that the petitioner has no focus standi to file the Writ Petition. The Division Bench in reversal of the Judgment of the learned Single Judge observed:
'The petitioner is a voter who was entitled to contest in the election. He has stated in the course of his petition that he did not file his nomination paper because the notification issued under Section 5(3) of the Act which was the foundation for the entire election process, was defective. The petitioner has certain statutory rights under the Act and the Rules framed thereunder. We cannot in the circumstances of this case hold that the petitioner has no locus standi to maintain this petition.'
Following the aforesaid decision of the Division Bench, the petitioner's right to file this petition cannot be questioned.
11. Once it is held that the petitioner has locus stand! to challenge the impugned notifications and the subsequent elections held by the authorities as per the calendar of events based on the impugned notifications, the validity of the impugned notifications has to be judged by examining the powers of the authorities under Section 5 of the Act. The scheme of Section 5 which deals with the constitution of Mandal Panchayat should be noticed. Under Section 5(1) of the Act, the Mandal Panchayat shall consist of such Member of elected Members as may be notified from time to time by the Government, at the rate of one Member for every four hundred population or part thereof of the Mandal as ascertained at the last preceding census of which the relevant figures are published. The proviso is not necessary for the purpose of this case. So, under Section 5(1) it is the State Government which determines the number of elected Members for a Mandal Panchayat and that number is dependent on the total population of the Mandal Panchayat. The relevant criteria is the total population and not the total number of voters in a particular Mandal Panchayat. It is not in dispute that the State Government had determined the number at 26 on the basis of the total population for the Mandal Panchayat in question, it obviously follows that they also had in view the extent of the constituency in each Mandal Panchayat including the extent of constituency for the reserved seats for women and for Scheduled Castes and Tribes. The learned Government Advocate has produced the notification pertaining to Chitradurga Taluk. Thiruvanur comes under Sl.No. 7 of the Notification. The total number of elected Members fixed for Thuruvanur on the whole is 26. So, this Court can proceed on the basis of that the number of seats was fixed regard being had to the population of the various constituency in this Mandal. This is also clear from Section 5(2), (3) and (4) of the Act. Section 5(2) says that 'Such number of seats, which shall as nearly as may be twenty five per cent of the total number of the Members of the Mandal Panchayats shall be reserved for women in every Mandal Panchayat'. Section 5(4) provides that 'Seats shall be reserved in a Mandal Panchayat for Scheduled Castes and Scheduled Tribes the. number of such seats bearing as nearly as may be the same proportion to the total number of seats in the Mandal Panchayat as the population of Scheduled Castes and Scheduled Tribes in the Mandal bears to the total population of the Mandal. However, under Section 5(5), the Deputy Commissioner shall, subject to the provisions of Sub-sections (2), (3), (4) and (6), by notification, determine (1) the constituencies into which the area within the jurisdiction of every Mandal Panchayat shall be divided for the purposes of elections to such Mandal Panchayat; (b) the extent of each constituency; (c) the number of seats allotted to each constituency which shall be one or more; and (d) the number of seats, if any, reserved for the Scheduled Castes and Scheduled Tribes or women in each constituency.
Annexure A is the notification made by the Deputy Commissioner under Section 5(5) of the Act. The petitioner has no grievance about the said notification. At this stage, the importance of the delimiting area of any Mandal for the purpose of the elections to the Mandal Panchayat should be noticed. In. Atma Singh and Ors. v. the State of Punjab and Ors., the Supreme Court was concerned with Punjab Delimitation of Wards of Municipalities Rules 4 and 6. The question for consideration was -
'When there is a notification issued under Sub-section (3) of Section 5 of the Punjab Municipal Act, 1911, for inclusion of certain local areas within the limits of a Municipality whether it is permissible for the State Government to hold elections in the Municipality without delimitation of wards and preparation of fresh electoral rolls.'
The Supreme Court observed as under:
'The whole purpose of delimitation of Municipalities into wards is to ensure that every citizen should get a fair representation in the Municipalities. When a Municipality is re-constituted by the inclusion of any local area within the limits of a Municipality under Sub-section (3) of Section 5 or by the exclusion of any local area from the limits of a Municipality under Section 7, i.e., when there is an alteration of the limits of the Municipality, there must be necessity be a division of the reconstituted Municipality into new wards without which the elections cannot be held. There can be no disenfranchisement of a part of the electorate of a Municipality. The question was dealt with at some length by the Gujarat High Court in Bhaichandbhai Maganlal Shah., v. The State if Gujarat, : AIR1967Guj105 and it was observed:
It must follow logically and inevitably from this proposition that the constitution of wards dividing the whole of the Municipal District is a since qua non of a valid election. If no wards at all are constituted in the Municipal District, the machinery of election cannot go through and equally the machinery of election cannot go through if wards are constituted in respect of a part of the Municipal District and the other part is not divided into any ward or wards. In such a case there would be lists of voters for the wards which are constituted out of a part of the Municipal District but there would be no lists of voters so far as the other part of the Municipal District is concerned and no one from that part would be qualified to vote or to stand as a candidate for the election and no Councillors being elected by that part, there would be no representation of that part on the Municipality. Where such a situation arises, it is difficult to see how the Municipality can be said to be a Municipality for the whole of the Municipal District within the meaning of Section 9.
We approve of the view taken by the Gujarat High Court.'
In State of Madhya Pradesh and Ors. v. Devilal, the Supreme Court was dealing with the notification made under Section 106 of the Madhya Pradesh Panchayats Act (7 of 1962). The facts in that case should be noticed since it throws some light on the power of the Deputy Commissioner to amend the notification in the manner he has done in exertion of the power under Section 5(5) of the Act. It also throws some light on the implication of Section 21 of the General Clauses Act on which the learned Government Pleader has strongly relied. The facts are found in para 3 of the Judgment and I can do no better than to quote para 3 itself for a proper understanding of the Judgment of the Supreme Court. It reads:
'Put very briefly, the essential facts are these. After the establishment of Gram Sabhas throughout the State under Section 3 of the Act, the State Government in accordance with Section 103 divided the Mandsaur District into eight blocks with Manasa Block as on of them where a Janapada Panchayat was to be established. Under Sections 105 and 106 of the Act, the State Government by a notification dated September 26, 1969 divided this Block into twenty constituencies from which the representatives of the Janapada Panchayat, Manasa were to be elected, with one representative to be elected from each constituency. After the constituencies were notified, the elections to the Gram Panchayats in the block were completed on November 8, 1970 and they were duly notified by the Collector, Mandsaur on November 14, 1970. On the same day, the new Gram Panchayats assumed office. On November 25, 1970, the State Government published a notification purporting to be under Section 106 of the Act for a re-distribution of the constituencies of the block. On November 29, 1970, the Collector also issued a notification reallocating the reserved seats for the Scheduled Castes and Scheduled Tribes. The respondent who had been elected as the Sarpanch of the Gram Sabha, Alhed and was thus qualified to contest the elections of the President and Vice-President of the Janapada Panchayat, Manasa, filed a petition in the High Court under Article 226 of the Constitution challenging the validity of the impugned notification dated November 25, 1970 issued by the State Government for re-delimitation of the constituencies of the block and the notification by the Collector dated November 29, 1970 for the reallocation of the reserved seats for the Scheduled Castes and Scheduled Tribes. In assailing the validity of the impugned notification dated November 25, 1970, the respondent pleaded, inter alia, that the State Government had no statutory power under Section 106 of the Act to alter or modify the constituencies once the same had been notified and the process of election had started that the issuance of the impugned notification was mala fide and politically motivated with a view to further the prospects of the party in power and that, even otherwise, assuming that there was such a power in the State Government to alter or modify the constituencies of a block during the progress of election to the Janapada Panchayat, the impugned notification for redistribution of the constituencies for the Manasa Block was illegal and inoperative as it had been published without affording an opportunity to the electorate to raise any objection. The respondent, accordingly, sought a Writ in the nature of mandamus and other appropriate writs, orders and directions under Article 226 of the Constitution directing the State Government to forebear from giving effect to the impugned notifications.'
The appellants in that case contested the Writ Petition filed by the respondents on various grounds, namely,
'(1) The Gram Panchayats and Janapada Panchayats are two distinct and separate entities and the Act envisages independent elections to be held for the same. (2) The scheme of the Act provides that the Act prescribes for different procedures for the holding of elections to the Gram Panchayats and Janapada Panchayats and merely because the Gram Panchayat elections were over on November 14, 1970, it could not be said that a notification modifying, the constituencies of the Gram Panchayats could not be issued under Section 106 of the Act. (3) The impugned notification seeking to alter the constituencies did not pertain to the Manasa Block alone but to many other blocks in the District and therefore the allegation that the issuance of the notification was actuated with political motives was wholly without basis, and (4) The provisions contained in Sections 105 and 106 of the Act do not make it obligatory on the part of the State Government to afford an opportunity of raising objections and therefore the State Government was justified in issuing the impugned notification.'
The Division Bench of the Madhya Pradesh High Court held that the State Government had no power to alter or modify the constituencies of a block once delimited by a notification issued under the M.P. Panchayat Act. The Division Bench referred to the Scheme of the Act particularly to Section 103 which provides for the division of a District into blocks and the demarcation of the areas thereof and to Section 106 which contemplates the division of blocks into constituencies. In the context, it observed that looking at the provisions of Section 360 or Section 370 of the Act, it was evident that where the legislature thought fit it had expressly conferred powers on the State Government for altering the limits. But nowhere the M.P. Act contemplates conferral of any powers on the State Government for alteration of constituencies once fixed and notified under Sections 105 and 106 of the Act.
The High Court observed that once the process of elections of Members to the Janapada Panchayat starts, the State Government has no power to alter or modify the constituencies of a block once delimited by a notification under Sub-section (1) of Section 106 of the Act. The two contentions raised before the Supreme Court in that case are:
'(1) Whether the High Court was right in holding that the provisions of the Act do not contemplate for any amendment of a notification issued earlier under Sub-section (1) of Section 106 of the Act dividing the block into constituencies or fixing the number of Members to be elected from each constituency, and
(2) Whether the impugned notification for restructuring che constituencies of the Manasa Block was invalid as it had been issued without affording an opportunity to the electorate to raise any objections.'
12. The Supreme Court answered both the questions in favour of the respondents and dismissed the appeal preferred by the State of Madhya Pradesh. The Supreme Court observed in paras 12 and 13 of the Judgment as follows:
'A close and combined reading of these provisions and the other provisions of the Act which follow hereafter make it quite evident that the actual control over the Gram Panchayat in a block is through the Janapada Panchayat for the block. It would also appear that the result of the elections to the Janapada Panchayat would depend upon the nature of the electoral roll prepared for each constituency in a block. If the State Government were to issue a notification under Sub-section (1) of Section 106 of the Act for redistribution of the constituencies in a block after the process of election has started, it would necessarily change the whole pattern of voting in the election of Members to the Janapada Panchayat. This is plainly a typical case of 'gerry-mander' an American expression which has taken root in the English language, meaning to arrange election Districts so as to give an unfair advantage to the party in power by means of a redistribution act or to manipulate constituencies generally.
Question of delimitation of constituencies in a block under Sub-section (1) of Section 106 of the Act is connected with the holding of election of Members to the Janapada Panchayat. Question of delimitation of such constituencies would necessarily arise when there is alteration in the limits of a Gram Sabha area under Sub-section (2) of Section 361 of the Act which brings about a change in a block or alteration in the limits of the block under Sub-section (4) of Section 370. It is not necessary for us to go into details except to refer to certain relevant provisions. Amalgamation, splitting up and alteration in the limits of Gram Sabhas have to be carried out after following the procedure prescribed by Sections 360 and 361. Section 362 provides that where a notification under Section 361 has been issued, the State Government may make such consequential orders as it may deem fit in respect of (a) the constitution of the Gram Sabha and the Gram Panchayat for the altered area where a local area has been included in or excluded from a Gram Sabha; (b) for the dissolution of the existing Gram Sabhas which have been amalgamated and the Gram Panchayats or subordinate agencies thereof, as the case may be, and the constitution of the amalgamated Gram Sabha and Gram Panchayat thereafter; (c) the dissolution of the Gram Sabhas split up and the constitution of the Gram Sabhae established in its place and the constitution of the Grain Panchayats thereafter, and matters ancillary thereto.'
The Supreme Court further observed:
'The whole purpose of delimitation of a block into constituencies under Sub-section (1) of Section 106 of the Act is to ensure that every citizen should get a fair representation of the Gram Panchayat and in turn to the Janapada Panchayat and the Zilla Panchayat. The result of any election under a majority system depends in fact not only on the way people vote but on the way people vote but people vote but on the way their votes are distributed among the constituencies. It was therefore impermissible for the State Government to redistribute the constituencies in the Manasa Block under Sub-section (1) of Section 106 of the Act so as to give an unfair advantage to the party in power to gain control over the Janapada Panchayat and in turn over the Zilla Panchayat. This is precisely what has happened in this case as is clear from the narration of facts. Although the High Court has not touched upon this aspect, it is quite apparent that the act of gerrymandering was to manipulate the result of the Janapada Panchayat and thereby materially affect the constitution of the Zilla Panchayat.'
On the second point, the Supreme Court observed in para 16 of its Judgment:
'As already stated, the elections to the Gram. Panchayats were held on November 8, 1970 and on November 14, 1970 the Collector notified the result of the elections and the Gram Panchayats assumed office on that date. All of a sudden, while the process of election of Members to the Janapada Panchayat was on, the State Government issued the impugned notification dated November 25, 1970 under Sub-section (1) of Section 106 of the Act seeking to alter the constituencies of the block. Normally, when the State Government intends to alter or modify the limits of a block, it has to follow the procedure laid down in Section 370 of the Act. Sub-section (3) thereof confers a right on the person affected to raise objections in writing to the proposed alteration and casts a duty on the State Government to consider such objections. It is only upon compliance of the mandatory requirements of subsection (3) that the State Government can proceed to issue a notification under Sub-section (4) of Section J70 for the alteration of the limits of a block. That is the normal procedure provided which implies the giving of an opportunity to the persons affected. There was really no occasion for the State Government to have issued the impugned notification dated November 25, 1970 seeking to restructure the constituencies of the block in the midst of the election. Even if there was such a power, the State Government was in duty bound to publish the proposal giving an opportunity to the persons affected to raise their objections to the proposed alteration. The impugned notification dated November 25, 1970 issued by the State Government under Sub-sections (1) of Section 106 of the Act is therefore totally invalid.'
13. The facts in that decision appear to be apposite to the facts of our case. In this case, the petitioners have alleged malafides against the authorities concerned. But the plea of malafides is strongly refuted by the respondents. But in my view, it is unnecessary to go into the question of malafides since that would raise disputed questions of facts which we cannot investigate in this petition. But if this Court could came to the conclusion that the amendment notifications (Annexures B, C and D) are wholly without jurisdiction, this Court could interfere under Article 226 of the Constitution.
14. The learned Government Advocate maintained that the power of amendment could be found in the provisions of Section 21 of the Karnataka General Clauses Act and once that power is conceded the notifications (Annexures B, C and D) are valid in the eye of law. Section 21 of the Karnataka General Clauses Act reads as under:
'Power to make to include power to add, to amend, vary or rescind notifications orders rules or Bye-laws. - Where, by any enactment, a power to issue notifications orders, rules or Bye-laws is conferred, then that power includes a power, exercisable on the like manner and subject to like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, Rules or Bye-laws so issued.'
Relying on this provision, he contended that the notifications (Annexures B,C and D) were made not with any malafide purpose as alleged by the petitioners but with a view to correct the clerical errors or accidental omissions which were found in the earlier notification Annexure A. On a plain reading of Section 21 of the Karnataka General Clauses Act, it enables the Deputy Commissioner to add to or to amend or vary or rescind the notification Annexure A. But that power has to be exercised in the like manner and subject to like sanction and conditions as contemplated under Section 5(5) of the Act. Once the Deputy Com missioner has made the notification delimiting the constituencies for the purpose of Mandal Panchayat Elections and fixed the number of seats in terms of Section 5(5) of the Act for the purpose of election of 26 candidates to the various constituencies in this Mandal could it be open to him to invoke Section 21 of the Karnataka General Clauses Act and say that on account of clerical errors and omissions he was constrained to issue the amendment notifications (Annexures B, C and D). I have already dealt in detail with the changes made by the Deputy Commissioner under Annexures B, C and D in respect of delimitation of the constituencies and also the number of seats in each of these constituencies for the purpose of election to the Mandal Panchayats. They are not mere clerical errors or accidental slips or omissions. The amendments made are of a substantial nature and in some cases they have totally altered the territorial limits of the constituencies and also the number of seats allotted to the constituencies. Not satisfied with Annexure B which brought about substantial changes in Annexure A, the Deputy Commissioner made a further notification under Annexure C altering again the territorial limits of as many as 5 constituencies, namely, Thuruvanur 8, 9, 10, 11, 12 and 13 and the number of seats in 2 constituencies namely, Thuruvanur 8 and 13. There was a further correction under Annexure-D in so far as it relates to Thuruvanur 9 Constituency. Territorial limits of this constituency was changed from 'Kadabanakatte H.No. 128-159 No. of seats allotted 1' to 'Kadabanakatte H.No. 128 to 159 and 161 to 200.' Further this notification dated 26-12-1986 is said to have been published in the Gazette on 24-12-1986. Of course there is an explanation to .this patent error. But to a common voter who has a right to vote in the Mandal Panchayat Elections, what would be his reaction to these changes in the territorial limits of each of these constituencies and also in the number of seats allotted to each of these constituencies. Election to Mandal Panchayat is a serious matter like any other elections to any other representative body.
15. That takes us to the question whether Section 21 of the Karnataka General Clauses Act confers powers on the Deputy Commissioner to amend or alter the notification issued under Annexure-A. The Supreme Court in STATE OF BIHAR v. D.N. GANGULY AND ORS : (1958)IILLJ634SC . considered the scope of Section 21 of the General Clauses Act in relation to the power of the Government to cancel or supercede a reference made under Section 10(1) of the Industrial Disputes' Act. The Supreme Court observed:
'It is well settled that this Section embodies a Rule of construction and the question whether or not it applies to the provisions of a particular statute would depend on the subject-matter, context, and the effect, of the relevant provisions of the said statute. In other words it would be necessary to examine carefully the scheme of the Act, its object and all its relevant and material provisions before deciding whether by the application of the Rule of construction enunciated by Section 21, the appellant's contention is justified that the power to cancel the reference made under Section 10(1) can be said to vest in the appropriate Government by necessary implication. If we come to the conclusion that the extent and effect of the relevant provisions is repugnant to the application of the said rule of construction, the appellant would not be entitled to invoke the assistance of the said section. We must, therefore, proceed to examine the relevant provisions of the Act itself.'
The Supreme Court on a consideration of the scheme of the Industrial Disputes Act concluded as follows:
'Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. This provisions imposes on the appropriate Government an obligation to record its reasons for not making a reference after receiving a report from the conciliation Officer and to communicate the said reasons to the parties concerned. It would snow that when the efforts of the conciliation Officer fail to settle a dispute, on receipt of the conciliation Officer's report by the appropriate Government, the Government would normally refer the dispute for adjudication; but if the Government is not satisfied that a reference should be made, it is required to communicate its reasons for its decision to the parties concerned. If the appellant's argument is accepted, it would mean that even alter the order is made by the appropriate Government under Section 10(1), the said Government can cancel the said order without giving any reasons. This position is clearly inconsistent with the policy underlying the provisions of Section 12(5) of the Act. In our opinion, if the legislature had intended to confer on the appropriate Government the power to cancel an order made under Section 10(1), the legislature would have made a specific provision in that behalf and would have prescribed appropriate limitations on the exercise of the said power.'
16. This ruling of the Supreme Court will throw some light on the construction of Section 21 of the Karnataka General Clauses Act for the purpose of determining the power of the Deputy Commissioner under Section 5(5) of the Act. But the scheme of the Act in question is not the same as the Industrial Disputes Act. So, we have to look to decisions having a bearing on the provisions of the Village Panchayat Acts in order to ascertain the effect of Section 21 of the Karnataka General Clauses Act. In V. RAMACHANDRA REDDV AND ANR. v. STATE OF ANDHRA PRADESH : AIR1965AP40 the power given to the Government to delimit the block and reconstitute the Panchayat Samithi by a notification under Section 3(3) of the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act came up for consideration before the Division Bench of the Andhra Pradesh High Court. The two important questions that arose for consideration in that case were:
'(1) Where the Government has been given the power to declare an area in a District as a Block and to constitute a Panchayat Samithi invested with corporate character for that Block by notification, has it, by the very nature of that power, the power to abolish the Block and the Samithi? and (2) After the constitution of the Panchayat Samithi, does the power conferred under Section 3(3) of the Zilla Parishads Act to redelimit the Block and to reconstitute a Panchayat Samithi for that Block extend to reorganise the Block and to reconstitute the Block in such a way as to totally extinguish a Samithis already constituted; in other words can the power of redelimitation and reconstitution be exercised to annex to a Panchayat Samithi the total area of another Panchayat Samithi already in existence to its complete extinction?'
The argument based on the provisions of Section 21 of the Act was dealt with by the Division Bench of the Andhra Pradesh High Court in para 23 of its Judgment. The Division Bench observed:
'From the language of this Section it is sought to be contended that a block can be redelimited only under Section 2(b) and if it is redelimited, it is not obligatory on the part of the Government to reconstitute a Panchayat Samithi for that block, as the word used is 'may', As a necessary consequence of this discretionary power vested in the Government to constitute or not to constitute a Panchayat Samithi for a redelimited block, it is contended that the Government has power to redelimited the block in such a way as to destroy the Panchayat Samithi constituted for that Block, But this argument does not meet the important objection that once a block is constituted as a Panchayat Samithi, that Panchayat Samithi being a body corporate, cannot be obliterated by merely redelimiting the block. In fact, the language of Sub-section (3) of Section 3 does not lend itself to the argument that by merely redelimiting the Block the Samithi gets dissolved and the Government may or may not reconstitute a Samithi for that block.
....... ....... Further, once the Government has exercised its powers under Section 2(b) of constituting a Block and a Panchayat Samithi for that Block, its power gets exhausted and, in our view, Section 2(b) cannot by itself be used to re-delimit that Block. The power of redelimitation of a Block for which a Samithi has been constituted has been assumed under Section 3(3); as such it is only under Section 3(3) in conjunction with Section 2(b) the delimitation and reconstitution of the redelimited Block can take place. It cannot also be said by reference to either Section 15 of the Madras General Clauses Act or Section 21 of the Central General Clauses Act, that the power to notify under Section 2(b) would also include a power to cancel the notification, for the simple reason that once a Panchayat Samithi is constituted for a Block, the Samithi becomes a body corporate and the area of it cannot be taken away or varied, unless a power is conferred on the Government. Both Sections 21 of the Central Act and Section 15 of the Madras General Clauses Act embody only a Rule of construction which should be applied if the construction cannot be arrived at or determined with reference to the context or subject-matter of the particular statute.'
In BHOLA P. SINGH v. PROF. U.A. GOSWAMI AND ORS. : AIR1963Pat437 , Justice Untwalia, as he then was, speaking for the Division Bench rejected the contention of the learned Advocate General based on the provisions of Section 24 of the Bihar & Orissa General Clauses Act and observed as follows:
'No authority taking a contrary view was cited by either the Advocate General or Mr. B.C. Ghosh - rather, the former did not combat the proposition of law in regard to the Chancellor's power to review as expressed by me above; the latter, however, submitted that he has such power to amend or rescind his order under Section 24 of the Bihar and Orissa General Clauses Act. The said Section provides -
'Where, by any Bihar and Orissa Act or Bihar Act, a power to make or issue notifications, orders, schemes rules, Bye-laws or forms, is conferred, then that power includes a power exercisable in the like manner and subject to the like 'sanction and conditions (if any) to add to, amend, vary or rescind any notification, orders, schemes rules, by-laws or forms so made of issued.'
Sections 23 to 27 of the Bihar and Orissa General Clauses Act correspond respectively to Sections 20 to 24 of the General Clauses Act (Central Act 10 of 1897) and are under the heading 'Provisions as to Orders, Rules, etc., made under Enactments'. Reading Section 24, by itself or in the context of the other sections under the said heading it is clear that the power to make or issue orders spoken of in the said section is of a legislative nature and not of a judicial nature as the order passed under Section 8(4) of the Act is. The expression to make or issue orders' has got to be read ejusdem generis and, when so read, it is manifest that the 'orders' spoken of in Section 24 of the Act are orders made or issued in exercise of the power of a kind of subordinate legislation conferred by any Act, to wit, the various Control Orders made under the Defence of India Act within the meaning of Section 21 of the Central Act. The power under Section 8(4) of the Act is exercisable 'by order in writing', but is not a power 'to make an order' within the meaning of the said provision of the Bihar and Orissa General Clauses Act. If that were not so, all authorities and Court will derive their power to add to, amend, vary or rescind any order - judicial, quasi-judicial or administrative - of the like nature at any time or any number of times they chose to exercise it. I have, therefore, no difficulty on rejecting the argument put forward by Mr. B.C. Ghosh.'
17. In the light of these decisions and considering the effect of a change in the delimitation of the constituency which was highlighted by the Supreme Court in the Punjab Municipalities case it has to be held that the Deputy Commissioner cannot rely on Section 21 of the General Clauses Act for issuing the impugned notifications (Annexures B, C and D). Such a power if conferred on the Deputy Commissioner would reduce the election process to a farce since the voters should keep a continuous vigil on the notifications that may be made by him till the calendar of events is published. They have to make serious and continuous efforts to find out in which constituency they have to vote and in which particular constituency they have to stand for elections. The voters are primarily interested in choosing the right candidate in their own constituency and if their constituency is not determined well in advance we will be reducing the election process to an absurdity by permitting the Deputy Commissioner to amend these notifications from time to time under the guise of making certain corrections or omission which had allegedly crept in the earlier notification Annexure-A. The scheme of our Act is not materially different from the Andhra Pradesh Grama Panchayat Act which was considered by the Division Bench of the Andhra Pradesh High Court; No other provision is brought to my notice for taking a contrary view.
18. The learned Government Pleader relied on the decision of the Supreme Court in MOHD. YUNIS SALEEM v. SHIVKUMAR SHASTRI AND ORS : 3SCR738 . This Decision was rendered by a Bench of 2 Judges. Justice Goswami speaking for the Bench observed in para 5 of the Judgment thus:
'Once this power is conferred under Section 30 upon the Election Commission, the power to amend the same, which will include alteration of the dates of poll, can be exercised under Section 21 of the General Causes Act. There is, therefore, no merit in the contention that the Election Commission had no power or jurisdiction to alter the date of poll from 3rd March, to 9th March, 1971, in the remaining constituencies in this case.'
Whether Section 21 of the General Clauses Act could be pressed into service regard being had to the scheme of the Representation of People Act, 1951 was not considered by the Division Bench presumably because such a contention was not urged before the Division Bench. But all the same that observation would appear to be an obiter and is not binding on this Court when there is a direct authority of the Supreme Court on that point, in Ganguly's case and that decision of the Supreme Court is that of a larger Bench.
In THE TULSIPUR SUGAR CO. LTD. v. THE NOTIFIED AREA COMMITTEE, TULSIPUR : 2SCR1111 on which the learned Government Pleader relied the Supreme Court observed thus:
'We are concerned in the present case with the power of the State Government to make a declaration constituting a geographical area into a town area under Section 3 of the Act which does not require the State Government to make such declaration after giving notice of its intention so to do to the Members of the public and inviting their representations regarding such action. The power of the State Government to make a declaration under Section 3 of the Act is legislative in character because the application of the rest of the provisions of the Act to the geographical area which is declared as a town area is dependent upon such declaration. Section 3 of the Act is in the nature of a conditional legislation. Dealing with the nature of functions of a non-judicial authority, Prof. S.A. De Smith in Judicial Review of Administrative Action (Third Edition) observes at page 163:-
'However, the analytical classification of a function may be a conclusive factor in excluding the operation of the audi alteram partem rule. It is generally assumed that in English law the making of a subordinate legislative instrument need not be preceded by notice or hearing unless the parent Act so provides.''
19. We are not concerned in this case with a statute dealing with extension of notified area under the Town Area Act or Municipalities Act. The Supreme Court in : AIR1986SC434 dealing with the provisions of the M.P. Panchayat Act has considered the point similar to the one before me. I have already referred to para 16 of the Judgment in the earlier part of my order. The Supreme Court observed thus:
'There was really no occasion for the State Government to have issued the impugned notification dated November 25, 1970 seeking to restructure the constituencies of the block in the midst of the election. Even if there was such a power, the State Government was in duty bound to publish the proposal giving an opportunity to the persons affected to raise their objections to the proposed alteration. The impugned notification dated November 25, 1970 issued by the State Government under Sub-section (1) of Section 106 of the Act is therefore totally invalid.'
I am of the view that this decision of the Supreme Court is directly applicable to the facts of this case and not the other decision of the Supreme Court dealing with the U.P. Town Area Act.
20. The record discloses that the other contesting respondents had not filed their return in support of their respective case. All the same, their learned Counsel appeared before this Court and supported the submissions made by the learned Government Pleader. I have already considered the submissions of the learned Government Pleader and, therefore, there is no necessity for me to refer to the contentions of the learned Counsel for the contesting respondents once again. However, on the question of exercising this Court's discretion he relied on the decision of the Supreme Court in SANGRAM SINGH v. ELECTION TRIBUNAL, KOTAH AND ANR : 2SCR1 . That was a case in which the Supreme Court was dealing with the appeal filed against the decision of the Election Tribunal touching the election of certain candidates who had been elected under the Representation of Peoples Act. In that context the Supreme Court observed thus:
'The High Courts do not and should not act as Courts of appeal under Article 226, Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they - will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into Courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for though no legislature can impose limitation on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be.'
21. I am unable to understand how the ratio of this decision is applicable to the facts of this case since this Court is dealing with the validity of the notifications made under Section 5(5) of the Act and not with an appeal against the decision of the Election Tribunal. In GADDE VENKATESWARA RAO v. GOVERNMENT OF ANDHRA PRADESH AND ORS. : 2SCR172 , the Supreme Court found on the scrutiny of the relevant provisions of the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act that the Rules framed by the Government under the Act were inconsistent with the provisions of the Act. The Supreme Court further observed thus:
'A scrutiny of the relevant provisions of the Act shows that the Rules framed by the Government are inconsistent with the provisions of the Act. They cannot override the statutory power conferred on the Panchayat Samithi. Under the Act the statutory power to establish and maintain Primary Health Centres is vested in the Panchayat Samithi. There is no provision vesting the said power in the Government. Under Section 69 of the Act, the Government can only make rules for carrying out the purposes of the Act; it cannot, under the guise of the said rules, convert an authority with power to establish a Primary Health Centre into only a recommendatory body. It cannot, by any rule, vest in itself a power which under the Act vests in another body. The rules, therefore, in so far as they transfer the power of the Panchayat Samithi to the Government, being inconsistent with the provisions of the Act, must yield to Section 18 of the Act.'
Having held so the Supreme Court declined to interfere with the Judgment of the Andhra Pradesh High Court as the High Court was right in refusing to exercise the extraordinary jurisdiction under Article 226 of the Constitution in the circumstances of the case though the order made by the Government was bad in law. That decision does not relate to elections to an elective office as in this case. That decision of the Supreme Court was rendered in relation to an executive order transferring a Primary Health Centre to another place under the rules framed under the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act. I have already adverted to the 2 decisions of the Supreme Court, viz., Punjab Municipalities case and M.P.. Panchayat case respectively. In my view these decisions have added a new dimension and given a new perspective to the law of elections to local bodies and the earlier decisions of this Court and the Supreme Court did not have the benefit of these decisions and, therefore, I am unable to get any assistance from the 2 decisions on which learned Counsel for the other contesting respondents have relied.
22. For these reasons these notifications are all bad in the eye of law and there could not have been any election at all under these notifications and the parties who have succeeded in the elections have no right to continue in office. The rigour of law should be maintained at all costs in election matters and in Allhadad Saheb's case our High Court has taken the view that any inconvenience to the public will not be a matter for consideration once the Court has come to the conclusion that the entire process of election is vitiated by abuse of power conferred by the statute on the authorities in question.
23. One technical objection is taken by the learned Government Pleader on the maintainability of the petition, i.e., though the State Government has been made a party, the State Government is represented by Deputy Commissioner and not by the concerned Secretary to the Government. The process of election was set in motion under the impugned notifications issued by the Deputy Commissioner under Annexures B, C and D. He is the person who is answerable to this Court for sustaining the validity of the notification. The Deputy Commissioner has entered appearance through the learned Government Pleader and his Head Quarters Assistant has filed the return in support of the action taken by him and, therefore, the plea of non-joinder would not be a valid one as no prejudice is caused to the defence of the State Government. That plea of non-joinder would not disentitle the petitioner from invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution.
24. Accordingly, this petition is allowed, the impugned notifications are quashed and consequently the election of Respondents 3 to 28 are declared void and they shall vacate the offices as Members of the Mandal Panchayat.
25. Ordinarily, I would not have stayed the operation of this order. Once it is held that the impugned notifications on which the elections are held are bad in law, the persons holding the erective offices must immediately vacate such of f ices. But, the respondents are functioning as Members of the Mandal Panchayat for more than a year and as the State Government intends to file an appeal against this order, the proper order to make is to stay the operation of this order for a period of 4 weeks from the date of delivery of this order to the State Government. It is ordered accordingly.
Parties to bear their own costs.