J.M. Shelat, J.
1. This petition is for a writ of quo warranto or a writ in the nature of quo warranto calling upon respondents 2 to 16 to state by what authority each of them supported his claim to the office of a member of the village panchayat of Patdi Village in the District of Surendranagar and for an injunction restraining respondents 2 to 16 from holding office as members of the first respondent panchayat and exercising powers as such members.
By a notification No. 518/33B under Section 4 of the Bombay Village Panchayat Act of 1933 the then Government of Bombay declared that the local areas comprising the revenue villages set out in that notification shall be villages with effect from November 1, 1940 The village Patdi was one of those villages so declared as villages under Section 4 of that Act. Patdi was then included in the taluka of Viramgam and that village was then a Political Saranjam Inami Village of Patdi estate and as such there was no other village in the estate of Patdi. After the abolition of that inam a revenue survey was for the first time made in 1956 under the provisions of the Land Revenue Code and as from the 1st of July 1959 the villages which once formed the estate of Patdi were transferred to the revenue district of Surendranagar. Though the village Patdi was declared a village under the Panchayat Act of 1933 no village panchayat was actually constituted until October 25 1947 when an election of the Patdi Village Panchayat took place for the first time and persons who were elected at that election took office on or about November 27, 1947 As far as that election was concerned the village was not divided into wards and therefore the residents within the limits of the Inami Village of Patdi formed the entire bulk of voters for the panchayat of Patdi. The second election was held on November 15, 1951 when the Village Patdi was divided into four wards. The third election took place on or about March 12, 1956 for the same area and with the same wards.
According to the petitioners the local area comprising the village panchayat of Patdi was as follows:
(1) Within the walls i.e. streets and residential localities of the Patdi Village proper and
(2) Outside the walls i.e. the Station Road the area around the boring the road leading to the high school and the road leading to the Mataji temple outside the Kalada Darwaja.
It was this area only which was within the jurisdiction of the panchayat of the Village Patdi right from the 1st of November 1940 when the aforesaid notification was issued and the same area has continued to be the area for the jurisdiction of the panchayat of Patdi Village during all the three elections. According to the petitioners the village Naranpura and Himmatpura situate near the village Patdi never formed part of the village Patdi and those areas were never the areas within which the village panchayat of Patdi had jurisdiction. The village Patdi Naranpura and Himmatpura which formed part of the former estate of Patdi were all throughout treated as separate villages in that estate. For all practical purposes the village panchayat of Patdi has all along excluded the areas of Naranpura and Himmatpura from its area of operation as they were never included within the limits of the village Patdi as declared under Section 4 of the Panchayat Act.
It appears that the Mamlatdar Dasada Taluka issued an order purporting to act under Rule 7 of the Bombay Village Panchayat Election Rules 1959 declaring for the purposes of election in 1960 various stages of that election. That order stated that the publication of the list of voters would be made on June 1 1960 and the nomination of candidates and scrutiny of nominations would be made on the 1st and 2nd of July 1960 respectively. Under that order the period within which appeals could be filed before the Mamlatdar was fixed for the 3rd and 4th July and the dates for withdrawal of nomination election and counting of votes were declared to be the 9th the 27th and the 27th of July 1960 respectively. The Mamlatdar acting under Rule 7(2) issued a public notice dated the 27th of May 1960 to the effect that the intending candidates should submit their nominations between 11 a.m. to 3 p.m. on the 1st of July 1960 before one Upadhyaya the Block Development Officer Dasada. That notice also declared that there were 15 seats in all and that each of the first three wards was to have four seats while ward No. 4 was to have three seats. One seat was declared to have been reserved for Scheduled Castes and Tribes in ward No. 1 and one seat each was reserved for women in wards 1 and 3. The said Upadhyaya was appointed by the Mamlatdar as the Returning Officer for the election by his order dated the 29th of May 1960.
By his order dated the 29th June 1960 the Collector of Surendranagar purporting to act under Section 10(1) and (2) determined the number of members that the panchayat should consist of the number of wards in the village the number of members to be elected from each ward and seats to be reserved in each ward. By a schedule annexed to that order he notified that the panchayat shall consist of 15 members and that there will be two seats reserved for women and one seat reserved for Scheduled Castes. Schedule B to that order set out the limits of the aforesaid four wards. What was important in that schedule was that Ward No. 4 included part of the areas of Himmatpura and Naranpura. That order appears to have been sent to the Block Development Office Dasada on the 30th of June 1960 and was published in Gujarat Government Gazette on 7th July 1960.
In pursuance of the Mamlatdars order dated the 27th of May 1960 nominations for the election of 1960 were filed and accepted on the 1st of July 1960 and their scrutiny was held the next day. The election was hold on the 27th of July 1960 and on a counting of votes respondents 2 to 15 were declared elected to the 15 seats in the panchayat. Respondent 13 contested in both the wards viz. wards 3 and 4 and was declared elected in both the wards. Respondents 2 6 and 10 were declared elected to the reserved seats for Scheduled Castes and women and respondents 2 to 5 were declared elected in ward No. 1 respondents 6 to 9 in ward No. 2 respondents 10 to 13 in ward No. 3 and respondents 13 to 15 in ward No. 4. As respondent 13 was elected in both the wards Nos. 3 and 4 he resigned his seat in ward No. 3 and in his place the Collector declared respondent No. 16 duly elected to the seat falling vacant in ward No. 3 under Rule 41A of the aforesaid Election Rules.
The petitioners challenge this election on various grounds. According to them the order of the Mamlatdar dated the 27th of May 1960 was not in accordance with the provisions of the Act and the Rules made thereunder and that he was not a competent authority to issue that order as contemplated under the rules. They also state that the publication of the voters list was not in accordance with the provisions of the Act and the Rules and Orders made thereunder that the voters list was published much prior to the order of the Collector dated the 29th of June 1960 determining the number of seats the number of the wards and the number of the reserved seats as required under Section 10 of the Act and therefore it contravened the provisions of Section 12. They further say that the appointment of Upadhyaya as the Returning Officer by the Mamlatdar Dasada was illegal ultra vires and contrary to law that the notice issued by the Mamlatdar dated the 27th of May 1960 was invalid that the Mamlatdar had no authority either under the Act or the Rules to pass any such order that his order was premature and consequently invalid as having been issued before the determination of wards the number of seats in each ward and the reserved seats for women and Scheduled Castes and Tribes. The four wards in which the village was divided by the Collector had 1065 860 756 and 1207 voters respectively and though ward No. 4 had the highest number of voters viz. 1207 voters the Collector had assigned only three seats to ward No. 4 as compared to 4 seats in each of the other three wards. They next challenge the election on the ground that the areas of Naranpura and Himmatpura ought not to have been included within the jurisdiction of Patdi village and that having been done the respondent No. 1 viz. the Panchayat usurped jurisdiction over those villages. The voters of these two villages Naranpura and Himmatpura were arbitrarily divided into two wards thereby making ward No. 4 unreasonably large and out of all proportion to the other wards. By an amendment which we allowed as it was necessary in the interests of justice the petitioners submitted that the list of voters of each ward had to be made available for inspection at least one month prior to the date of nominations. The Collectors order having been passed on the 29th of June 1960 it could not have reached the Block Development Office earlier than the 30th of June 1960. Thus the order of the Collector could not have been published for information of the electors before the 1st of July 1960. The date of nominations fixed by the Mamlatdar was however the 1st of July 1960 and their scrutiny was to be held the next day. It was therefore evident that the voters had no opportunity to consider properly the contest in the election and the petitioners and others had no reasonable opportunity therefore to decide as to which candidate they should sponsor and in which ward. The petitioners therefore submitted that the provisions of the Act and the Rules were totally discarded and the election was held in quite the reverse within the one contemplated under the Act and the Rules.
2. In order to appreciate these contentions it is necessary to consider a few sections of the Act. Section 10(1)(a) lays down that a village panchayat shall consist of such number of members not being less than 7 and more than 15 as the Collector may determine. Clause (b) of Sub-section (1) provides that each village shall be divided into such number of wards and the number of members of a panchayat to be elected from each ward shall be such as may be determined by the Collector. Sub-section (2) provides that in every panchayat two seats shall be reserved for women and if having regard to the population of Scheduled Castes and Scheduled Tribes in the village the State Government is of opinion that reservation of seats is necessary for such castes and tribes in the village there shall be reserved for such castes and tribes such number of seats as may be prescribed. Section 11 then provides that the election of members of a panchayat shall be held on such date as the Collector may appoint in that behalf and such election shall be conducted in the prescribed manner that is to say according to the Rules made under the Act. It is clear thus from Section 10 that the Collector is the authority who has to determine the number of seats in a panchayat to determine the number of wards and the number of members to be elected from each such ward and also to determine subject to the direction of the State Government as to in which of such wards there should be reserved seats for Scheduled Castes and Tribes. It is the Collector also who has to determine the date when the election of members of the panchayat should be held.
Section 12 deals with the list of voters. Under Sub-section (1) of Section 12 the electoral roll of the Bombay Legislative Assembly prepared under the Representation of the People Act 1950 and in force on such date as the State Government may notify in that behalf for such part of the constituency of the Assembly as is included in a ward or a village shall be the list of voters for such ward or village. Sub-Section 2 of Section 12 contemplates that the officer designated by the Collector shall prepare from such list and maintain a list of voters for each such ward or village. It was contended by Mr. Vakil who appears on behalf of certain elected members that Section 12 contemplates one list of voters for the entire village and not a list of voters either ward wise or for each of the wards as determined by the Collector. He relied upon a decision in Ardeshir Sorabji Mirza v. U.M. Bhatt 60 Bom. L.R. 803 where while dealing with the question whether a voter seeking election to a panchayat can or cannot contest election in a ward of the village other than that in which he is shown to be a voter it has been observed that the list of voters contemplated under Section 12 cannot mean that there should be a separate list of voters for each ward. That decision however was considered by a subsequent Division Bench of the same High Court in Bhikhu Sakharam Kharate v. B.K. Potdar 61 Bom. L.R. 960. At page 962 dealing with the same contention as was raised in Ardeshir Sorabji Mirzas case Mudholkar and Patel JJ. doubted the correctness of the earlier decision and held that a voter whose name appears in the list of one ward cannot stand as a candidate for another ward in the list of voters in which his name does not appear. Construing Section 7-B and 7 of the 1933 Act which were in similar terms as Sections 12 and 13 of the present Act they observed as follows:
There can be no doubt that under ordinary rules of grammar the phrase to which such list pertains must qualify the words for any ward and if this is so there can again not be the least doubt that when a person offers himself as a candidate, he must offer himself to be the candidate for the ward in which his name appears in the list for that ward. Grammatically therefore there cannot be any doubt about the meaning of the section.
At page 963 dealing with the case of Ardeshir Sorabji v. U.M. Bhatt they further observed:
It may be that contrary to the provisions of the Act instead of maintaining separate lists one list is maintained; but that would not enable a Court to negative the words of the section which in terms say that a candidate would be qualified to be elected for any ward to which such list pertains. If the list is not maintained as per the requirement of law the whole election may become invalid.
The provisions of Section 13 as they stand at present bring out clearly what is intended and meant by the list of voters referred to in Section 12 (1) and (2) Section 13(1) provides that every person whose name is in the list of voters shall be qualified to vote at the election of a member for the ward to which such list pertains. The expression for the ward to which such list pertains clearly shows that the list of voters has to be wardwise and not for the entire village. Where the village is divided into wards a person whose name is in the list can only vote in that ward to which such list pertains. It is somewhat significant that Section 13 does not use the expression ward or village as Section 12 does. It is thus clear from a reading of both the sections together (1) that the electoral roll of the Legislative Assembly is the basis of the list of voters for panchayat elections and therefore no new roll of voters is to be prepared for the purposes of the panchayat election and (2) where the village is divided into wards the list has to be maintained wardwise because a voter under Section 13(1) can only vote in that ward in the list of voters in which his name appears. Sub-section (2) of Section 13 deals with the right of election of a person who is a voter but we need not consider that sub-section as we are not concerned in this case with that question. There is therefore no doubt that the voters for a panchayat election are the same as those for the Assembly election. The list of voters has to be wardwise where a village is divided into wards. No such wardwise list would be necessary where the village is one unit and is not divided into wards. Rule 3 of the Panchayats Election Rules 1959 framed under Section 176 makes this position clear beyond any doubt. Clause (1) of that rule provides that the officer designated by the Collector under Section 12(2) of the Act shall maintain a list of voters of each ward of the village which shall contain the names of all persons who are enrolled as voters in the electoral roll of the Bombay Legislative Assembly from that part of the constituency of the Assembly as is included in each such ward and such officer shall authenticate each list of voters so maintained and shall sign every page thereof and shall seal it with the common seal of the panchayat.
These provisions contemplate that under Section 10(1)(b) of the Act the Collector has first to determine the wards of the village and the number of members to be elected from each such ward. Similarly under Rule 4 of the Election Rules he has to determine in which of the wards so determined by him there should be reserved seats for women and Scheduled Castes and Tribes. It is when all these preliminary things are completed that under Rule 7 of the Rules the Mamlatdar has to appoint dates for the various stages of the election viz. the nominations the recording of votes and the counting of votes. It stands to reason that voters would not be able to nominate candidates unless the list of voters is ready for each ward and wards are first determined. It is also clear that unless the wards the number of seats in each ward and the reservation of seats for women and Scheduled Castes and Tribes in any one or more of these wards are first determined it would be well-nigh impossible for the voters to decide upon and sponsor their candidates and for the candidates to file their nominations.
3. It was contended by Mr. Zaveri and in our view with considerable justification that this entire process of the election has been reversed in this case. The notification dated the 27th of May 1960 issued by the Mamlatdar Dasada Taluka called upon the candidates to file their nominations on the 1st of July 1960 and declared thereunder the number of wards the number of seats in each of such ward and the wards in which there were to be reserved seats. By his order dated the 29th of May 1960 he also appointed a Returning Officer. Apart from the objection that these orders reversed the entire process of election the Mamlatdar had no power under the Act to determine either the wards or to declare which of such wards shall have a reserved seat or seats for women and/or Scheduled Castes or Tribes. That power is reserved under Section 10(2) and Rule 4 of the Election Rules to the Collector. Indeed that was also understood by the Collector because by his order dated the 29th June 1960 the Collector published the division of wards and the number of reserved and general seats in those wards and specified the wards where such reserved seats were to be. As was rightly pointed out on behalf of the petitioners this order being dated the 29th of June 1960 it could not be published or made known to the voters in Patdi village before the 1 of July 1960 that is to say on the very day when under the Mamlatdars previous order nomination papers were to be filed. It follows from these facts (1) that the order of the Mamlatdar dated the 27th of May 1960 was premature (2) that the determination of wards and the reserved seats by the Mamlatdar was without authority and (3) that the Mamlatdar had published a list of voters without the wards having been first determined and therefore that list of voters cannot be said to be for wards determined for the purpose of the election. It would also show that no time was given to the voters to properly determine and decide upon their candidates and the candidates themselves had not been given proper opportunity to consider their positions and file their nominations.
4. The learned Assistant Government Pleader was constrained to admit this position but Mr. Vakil urged that even though the process of the election was in the manner aforesaid reversed no prejudice had been caused either to the petitioners or to the voters and therefore we would not be justified in issuing the writ of quo warranto prayed for by the petitioners. It is no doubt true that the writ of quo warranto is not issued as a matter of right. It is a discretionary relief and the Court has to ask itself whether under the circumstances of each case the petitioner should be given the relief in the nature of quo warranto which he seeks. It is also true that the Courts should always be reluctant to interfere with elections except on the clearest and strongest of grounds and they should be loath to interfere with elections merely because some technicality has not been observed or some irregularity has been committed. At the same time it would be quite a different matter if the irregularity has resulted in the people not being able to express their views properly or if there was any corrupt practice which has materially affected the result of the election or where an election has been held without any authority of law. For the reasons aforesaid it is not possible for us to say that the election in this case was properly held or that the voters were given proper chance to deliberate upon the choice of their candidates or that the voters who would have liked to stand as candidates had been given time to consider their position. As we have pointed out the wards were declared for the first time by the Collectors order dated the 29th of June 1960 and presumably the petitioners and the other voters in Patdi village could not have seen or read that order until the 1st of July 1960 which was the date for the filing of nominations of candidates. In fact the Collectors order was published in the Government Gazette as late as the 7th of July 1960 exactly seven days after the date for the filing of the nominations and six days after the scrutiny of those nominations. In these circumstances we must hold that the election was held in total disregard of the provisions of the Act and the Rules. Reluctant though we are to upset the entire election it is impossible for us to determine which of the four wards was individually affected by these contraventions and therefore we are constrained to upset the entire election as obviously it was held in contravention of the provisions of Sections 10, 12 and 13 of the Act and Rules 3 and 7 of the election Rules Inasmuch as we are setting aside the election on this ground alone it toes not become necessary for us to go into the other contentions raised by Mr. Zaveri.
5. In the result we set aside the election. Respondents 2 to 16 are restrained by and order of injunction of this Court from holding the office as members of the first respondent panchayat and exercising the powers attached to such membership. It is agreed between the parties that there should be no order as to costs. Therefore there will not be any order as to costs.