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Patel Amarshibhai Dharamshibhai and anr. Vs. Lakadia Kantilal Damodar and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtGujarat High Court
Decided On
Judge
Reported in(1973)14GLR639
AppellantPatel Amarshibhai Dharamshibhai and anr.
RespondentLakadia Kantilal Damodar and ors.
Cases ReferredPatel Khemabhai v. Jantral Gram Panchayat
Excerpt:
- - since the condition precedent to the exercise of the power under sub-rule (2) of rule 7 was not satisfied, the notification fixing the different stages of election programme was bad and all that transpired in the course of the election subsequent to the publication of the notification under rule 7(2) were also vitiated. 1 to 9 as unopposed candidates to this particular gram panchayat was bad and must be set aside......in the election petition the present petitioners challenged the election of all the members of the gram panchayat who were declared to have been elected to the gram panchayat on february 5, 1970. it is the case of the petitioners that respondent no. 7 was the sarpanch of the gram panchayat of this particular village for period 1967 to 1970 and fresh elections were due to be held some time in the beginning of march 1970, as the term of the earlier gram panchayat was to expire on march 18, 1970. according to the petitioners, sarpanch, opponent no. 7, manoeuvred in such a manner that without having any real election, the members of the party led by opponent no. 7 should be returned as unopposed and for that purpose the election programme and other things should be so arranged that apart.....
Judgment:

B.J. Divan, J.

1. The petitioners herein are residents of Keriya village No. 1 in Botad Taluka in Bhavnagar District. The Special Civil Application as originally filed was against the decision of the learned Civil Judge, J. D., Botad, in an Election Petition filed by the present petitioners in his Court under the provisions of Section 24 of the Gujarat- Panchayats Act, 1961 (hereinafter referred to as the Act). The learned Civil Judge, J. D., dismissed that Election Petition and thereafter the present Special Civil Application has been filed.

2. In the Election Petition the present petitioners challenged the election of all the members of the Gram Panchayat who were declared to have been elected to the Gram Panchayat on February 5, 1970. It is the case of the petitioners that respondent No. 7 was the Sarpanch of the Gram Panchayat of this particular village for period 1967 to 1970 and fresh elections were due to be held some time in the beginning of March 1970, as the term of the earlier Gram Panchayat was to expire on March 18, 1970. According to the petitioners, Sarpanch, opponent No. 7, manoeuvred in such a manner that without having any real election, the members of the Party led by opponent No. 7 should be returned as unopposed and for that purpose the election programme and other things should be so arranged that apart from the persons belonging to the party of Opponent No. 7, nobody else would file any nomination paper and all the persons, Respondents Nos. 1 to 9, would be declared elected, since the number of nomination papers would be equal to the number of seats required to be filled up.

3. When the matter reached hearing before me today, I pointed out to Mr. Oza that in view of the decision of this Court in Patel Khemabhai v. Jantral Gram Panchayat 12 G.L.R. 439, an Election Petition under Section 24 can only be filed by a voter in respect of any particular division or ward of the Gram Panchayat or the particular Panchayat concerned. But in an Election Petition under Section 24 it is not competent to challenge an election of all elected members from all election divisions of the Panchayat. It is, therefore, that the Election Petition filed by the present petitioners before the learned Civil Judge, J. D. Botad, was not competent and the decision of the learned Civil Judge was without jurisdiction. When this state of affairs was pointed out to Mr. Oza, he applied that this Special Civil Application should be treated as an application under Article 226 of the Constitution as an original proceeding inasmuch as the position in law was not clear regarding the scope of Section 24 of the Act at the time when he filed this Special Civil Application. The judgment of D. A. Desai J. in that matter was delivered on July 2, 1970 but was not reported till June 30, 1971. The present Special Civil Application was filed on May 17, 1971. I have, therefore, permitted Mr. Oza to convert this Special Civil Application into an Application under Article 226 of the Constitution and I will deal with the matter on the footing of this matter being under Article 226 challenging the entire election of respondents Nos. 1 to 9 Keriya No. 1 Gram Panchayat.

4. The facts which are necessary to be noted for the purpose of this judgment are that the Taluka Development Officer, Botad Taluka, issued a Notification, dated January 12, 1970, which was published in the Gujarat Government Gazette on February 12, 1970, appointing March 1, 1970, as the date of election. It appears from the record before me that on that very day i.e. on January 12, 1970, the Taluka Development Officer also issued another Notification fixing the election programme mentioning the different dates as last dates for filing the nomination papers, scrutiny of nomination papers, withdrawal of nominations etc. In that election programme, he fixed January 27, 1970, as the last date for filing nomination papers, January 28, 1970 as the date for the scrutiny of nominations and February 4, 1970, as the last date for withdrawal of nomination papers. He also fixed March 1, 1970, as the date on which the election would be held in case casting of votes became necessary. Now, under the rule-making power conferred on the State Government by Section 323 of the Gujarat Panchayats Act, 1961, the State Government have made rules called 'Gujarat Gram and Nagar Parachayats Election Rules, 1962' and these rules were first made on September 7, 1962 but they were amended from time to time. These Rules will hereinafter be referred to as the Rules. Under Section 18(1) of the Act as it stood in January 1970, it was provided as follows:

18(1). The election of members to a panchayat shall be held on such dates as in the case of a taluka panchayat or district panchayat, the District Development Officer and in the case of a Gram Panchayat or nagar panchayat the Taluka Development Officer, may appoint in that behalf.

Therefore, it is obvious that the power to appoint the date was given to the Taluka Development Officer so far as this particular Gram Panchayat of Keriya No. 1 village was concerned. It appears that the Act was amended by Gujarat Act No. 53 of 1963, so that the power of appointment in the case of Gram Panchayat was given to Taluka Development Officer; whereas prior to the amendment power vested only in the District Development Officer. Rule 7 of the Rules seems to have been amended but the amendment only amended the title of the rule and provided as follows:

Power of Taluka Development Officer to appoint dates etc. for various stages of election.

However, in the body of Sub-rule (1) it mentioned the District Development Officer as the person who has to issue the necessary notification fixing the date of election. In view of the amendment of Section 18(1), it is obvious that the power to issue the notification fixing the date of the election vested in the Taluka Development Officer so far as a Gram Panchayat was concerned and 1 will read Rule 7(1) as mentioning the Taluka Development Officer as the appropriate person. Thus Rule 7(1) provided as follows:

7(1) The Taluka Development Officer shall by notification in the Official Gazette, notify the date of election appointed by him under Sub-section (1) of Section 18.

(2) As soon as a notification under Sub-rule (1) is published the Taluka Development Officer shall also by a notification appoint the dates, the hours and place or places for the following stages of election, namely:

(i) the nomination of candidates (ii) the scrutiny of nominations (iii) withdrawal of candidatures (iv) the recording of votes and (v) the counting of votes.

(4) Not less than 15 days before the last date fixed for the nomination of candidates the Taluka Development Officer shall give a public notice in writing of the intended election, inviting nominations of candidates for the election and specifying the place where nomination papers are to be delivered....

5. The main contention of Mr. Oza for the petitioners is that though the notification fixing the date of election was published in the Official Gazette on February 12, 1970, the election programme under Sub-rule 7, was notified on 12th January 1970 and respondents No,. 1 to 9 were declared to have been elected on February 5, 1970 i.e. even before the Notification was published in the Official Gazette on February 12, 170. Sub-rule (1) of Rule 7 is very clear about the manner of notification when the date of election is fixed by the Taluka Development Officer. It specifically enjoins upon the Taluka Development Officer to notify the date of election appointed by him under Section 18(1) by notification in the Official Gazette. It is only on the publication of such a Notification in the official Gazette that it can be said that the notification is published and it is only on such publication or as soon as such a publication is made that the Taluka Development Officer can proceed by another notification to fix the dates, hours, place or places for various stages of election under Rule 7(2). In the instant case, as pointed out above, the Taluka Development Officer first fixed the date of election on January 12, 1972 and without waiting for the publication of that notification in the Official Gazette he straightway proceeded to fix the election programme for the different stages of election in the exercise of his powers under Rule 7(2). It is clear that the notification fixing election programme under Sub-rule (2) of Rule 7 can only be issued by the Taluka Development Officer after, or at the most, simultaneously with the publication in the official Gazette. Sub-rule (2) of Rule 7 in terms refers to publication of Notification under Sub-rule (1) and says that as soon as the notification is published the Taluka Development Officer has to fix the election programme by another notification fixing the dates, hours, place or places for the different stages of the election.

6. Under these circumstances, it is obvious that the Taluka Development Officer was acting without jurisdiction when he issued the notification on January 12, 1970, fixing the different stages of election programme. The condition precedent to the exercise of the power under Sub-rule (2) of Rule 7 is that the notification contemplated by Sub-rule (1) should be published and Sub-rule (1) contemplated only the publication in the Official Gazette as due or requisite publication. Under these circumstances, the notification under Sub-rule (2) of Rule 7 fixing the election programme was vitiated and it is by following that election programme that the nomination papers were received and ultimately on February 5, 1970, respondents Nos. 1 to 9 were declared to have been elected to the Gram Panchayat of Keriya No. 1 village. Since the condition precedent to the exercise of the power under Sub-rule (2) of Rule 7 was not satisfied, the notification fixing the different stages of election programme was bad and all that transpired in the course of the election subsequent to the publication of the Notification under Rule 7(2) were also vitiated. I must, therefore, hold that the election of respondents Nos. 1 to 9 as unopposed candidates to this particular Gram Panchayat was bad and must be set aside.

I, therefore, allow this Special Civil Application and set aside the election of Respondents Nos. 1 to 9 to this Gram Panchayat. Rule is made absolute. A writ will issue directing the Taluka Development Officer, who is also respondent No. 11 before me, to treat the election of respondents Nos. 1 to 9 held in February 1970 as null and void and to proceed to hold fresh elections. There will be no order as to costs.


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