RANCHHOD ZINA Vs. PATANKAR SHRI COLLECTOR BROACH

JUDGEMENT

(1.) Two contentions have been raised in this petition (1)challenging the validity of the notification dated May 29 1962 issued by the Collector Broach District under sec. 10 of the Bombay Village Panchayats Act 1958 on the ground that the Collector had no authority to issue a fresh order under that section once he had already issued a previous order thereby exhausting his power under the provisions of sec. 10 and (2) that assuming that he had such power the impugned notification and the order which it notified were issued mala fide for an oblique purpose extraneous to the purpose envisaged by sec. 10 of the Act. In order to appreciate these two contentions raised by Mr. Nanavati on behalf of the petitioner it is necessary to state a few relevant facts.

(2.) The petitioner at the material time was a resident of village Tankari in Broach District. The local area of Tankari Bunder was declared to be a village under sec. 4 of the Act. At all material times the petitioner was on the electoral roll of the Legislative Assembly and was therefore under the provisions of sec. 12 qualified to vote at the election of a member of the Tankari Gram Panchayat. In pursuance of the power conferred by sec. 10 the Collector by a notification dated April 24 1962 published rules for reservation of seats for scheduled castes and scheduled tribes the total number of seats and the seats reserved for scheduled castes and scheduled tribes as therein set out. The notification also declared that the village was given nine seats out of which two seats were reserved for women and one each for scheduled castes and scheduled tribes. On that very day the Collector passes another order again under sec. 10 of the Act constituting thereby wards in the said village. By that order the Collector constituted three wards and also defined the extent of each of those three wards and ordered that there should be a reserved seat for women in ward No. 1 called Vohorawad Ward one seat for scheduled tribes in ward No. 2 called Undi-Khadki Ward and two reserved seats one each for scheduled castes and women in the third ward called Hindulatta Ward. The order also declared that there would be in all nine seats each ward having three seats. Thereafter on May 3 1962 the Block Development Officer Jambusar issued his order under the Village Panchayats Election Rules 1959 setting out therein the various stages of the election. Under that order he fixed June 4. 1962 as the date for submitting nomination papers June 6 1962 as the date for scrutiny of the nomination papers June 7 as the date for filing an appeal against the order on nomination papers June 12 as the date for withdrawing nomination papers and July 6 1962 as the date for the election. On May 29 1962 the Collector issued the impugned notification directing the reconstitution of the wards for the election and ordering that the village should be divided into three wards for the purpose of the said election and laying down therein revised boundaries of each of the three wards and the allocation of reserved seats for each of those wards. By this notification the Collector directed that there would be two reserved seats one for women and one for scheduled tribes out of the three seats in ward No. 1. One reserved seat for women was allocated to ward No. 2 and one reserved seat for scheduled castes was allocated to ward No. 3. The position which emerged as a result of this notification was that not only the extent of each of wards Nos. 1 and 2 was altered but the original allocation of reserved seats to each of the three wards was considerably modified. Under the notification dated April 24 1962 ward No. 1 contained houses Nos. 1 to 108 and ward No. 2 was comprised of houses Nos. 109 to 225. The notification dated May 29 1962 altered the extent of these two wards inasmuch as ward No. 1 now was comprised of houses Nos. 1 to 71 94 to 108 and 110 to 134 while ward No. 2 was now comprised of houses Nos. 72 to 93 135 to 156 157 to 182 183 to 225 and 345 to 364. So far as the allocation of reserved seats was concerned that also was considerably modified in that whereas under the order dated April 24 1962 ward No. 1 was allocated only one reserved seat for women under the impugned notification dated May 29 1962 the Collector allocated two reserved seats one each for women and scheduled castes with the result that there was only one general seat left in that ward. Similar change also took place in so far as the other two wards were concerned. Under the order dated April 24 1962 one reserved seat for scheduled castes was allocated to ward No. 2 but under the notification dated May 29 1962 that allocation was altered and instead of a reserved seat for scheduled castes a reserved seat for women was allocated to that ward. Similarly though under the order dated April 24 1962 two seats were allocated to the third ward one for women and the other for scheduled castes only one reserved seat for scheduled castes was allocated to that ward. It is obvious that by the re-determination of the extent of the three wards and the reallocation of reserved seats to these wards there was a clear possibility of a person standing for the impending election to get prejudiced and that appears to be the case of the petitioner. According to the petitioner after the first notification dated April 24 1962 was issued he decided to contest the election from ward No. 1 where only one reserved seat for women was allocated and which then consisted of houses Nos. 1 to 108 that by the change effected by the notification dated May 29 1962 not only were houses Nos. 72 to 93 taken out of that ward and added to ward No. 2 but now houses numbering from 110 to 134 were taken out of ward No. 2 and added to ward No. 1 and further more by allocating two reserved seats to ward No. 1 only one general seat was left to that ward. As already stated the petition has been filed challenging the validity of the impugned notification dated May 29 1962 on the ground that the impugned notification was without jurisdiction and that even if it was issued with jurisdiction it was issued by the Collector mala fide with an oblique motive to prejudice the petitioner in the impending election.

(3.) Mr. Nanavati contended that once the Collector had exercised his power under sec. 10 and constituted thereunder the wards and allocated the reserved seats he had gone through a stage in the process of election and had thereafter no power express or implied under sec. 10 to retrace that step and issue another order or notification containing such order reconstituting the wards their extent and reallocating the reserved seats to any of the three wards. He also contended that even if it were to be held that the Collector had such power the exercise of that power was mala fide as it was for oblique reasons to prejudice the petitioner in his candidature for the election from ward No. 1 and with the intention of favouring the changes of one Bhukhar Sursang a leading Congress worker of the village and his followers. He argued that therefore such an order could not be said to have been passed in exercise of the power under sec. 10 and was not an order passed under that section and was liable consequently to be set aside. Mr. Qureshi who appears for the third respondent on the other hand argued that though sec. 10 in express terms did not provide that the Collector could pass orders thereunder as occasion arose there was such a power implied in that section and that therefore the Collector was competent to cancel the order dated April 24 1962 and pass in its place and stead the fresh order notified under the notification dated May 29 1962 He also contended that the Collector being competent to pass such an order under power reserved to him under sec. 10 the validity of the notification dated May 29 1962 could not be challenged and the order therefore should be held as a valid order.