PATEL AMARSHIBHAI DHARAMSHIBHAI Vs. LAKADIA KANTILAL DAMODAR

JUDGEMENT

(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 sec. 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 sec. 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 sec. 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 Art. 226 of the Constitution as an original proceeding inasmuch as the position in law was not clear regarding the scope of sec. 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 Art. 226 of the Constitution and I will deal with the matter on the footing of this matter being under Art. 226 challenging the entire election of respondents Nos. 1 to 9 Keriya No. 1 Gram Panchayat.