RAMESHCHANDRA RAMANBHAI PATEL Vs. COLLECTOR KHEDA

JUDGEMENT

(1.) The town of Anand is a municipal borough within the meaning of the Gujarat Municipalities Act 1963 (hereinafter referred to as the Act). It has a municipality which is a body corporate consisting of elected councilors. The last general election of councilors of the municipal borough was held sometime in 1972. At that time on the basis of the population of the municipal borough which was found to be 59069 at the census held in 1971 the number of councilors to be elected was fixed at 35. Out of the total number of seats of councilors deter. mined as aforesaid three seats were reserved for women and two seats were reserved for scheduled castes. For the purposes of the election the municipal borough was divided into wards and the number of members to be elected from each ward was duly determined. This was done by the State Government by an order made on June 1 1972 Accordingly the municipal borough was divided into 12 wards and 35 seats including reserved seats were allocated between those wards. Since the term of the councilors elected at the said general election was to come to an end on January 14 1978 it was necessary to hold a fresh general election. For the said purposes after taking certain preliminary steps the Collector of Kheda issued a notice dated November 16 1977 in exercise of the powers conferred by Rule 7 of the Gujarat Municipalities Election Rules 1964 (hereinafter referred to as the Rules) fixing various stages of election. Accordingly the election programme was to be as under : @@@ Delivery of Scrutiny of Recording of Counting of Nomination nomination votes: votes. Papers: papers: Between 3rd and From January : On On February: From February 8 7 January : 9 1978 till com- 5 1978 1978 till completion. 1978 pletion. @@@ The total number of seats the number of wards and the number of members to be elected from each ward for the purpose of the ensuing municipal election according to the said notice were to be the same as determined for the purposes of the general municipal election held in 1972 A copy of the said notice is annexed to the petition at Annexure A collectively.

(2.) The petitioners who are residents of the municipal borough and are registered voters have filed the present petition praying for appropriate writ directions or orders inter alia commanding the Collector of Kheda (first respondent) the Mamlatdar of Anand (second respondent) the Anand Municipality (third respondent) and the State of Gujarat (fourth respondent): - (1) to treat the notice Annexure A collectively as illegal unconstitutional without jurisdiction null and void and of no effect whatsoever; (2) not to proceed with the election calendar; (3) to revise the wards and to fix the number of seats in each ward in proportion to the voters in each ward; and (4) to revise the electoral roll and to make it uptodate. The petition was filed on January 2 1978 It came up for preliminary hearing on January 5 1978 before a single Judge of this Court who ordered notice to issue to the first respondent returnable on January 9 1978 On the returnable date besides the first and third respondents respondents Nos. 5 to 11 who are residents of the municipal borough and entitled to vote and contest at the ensuing election and have in fact filed their nominations appeared before the Court and in pursuance of their application they were joined as party respondents. On the same day the learned single Judge issued Rule nisi and made an ad interim order restraining the concerned authorities from proceeding further with the municipal election as per the election programme notified in the impugned notice. The learned single Judge also referred the petition for final hearing to a Division Bench presumably having regard to the important questions of law involved. The ad interim relief granted by the learned single Judge was modified by this Division Bench on January 11 1978 and only actual polling was stayed and the ad interim injunction was vacated so far as it related to the earlier stages. The petition was also directed to be placed for hearing on January 16 1978 The hearing of the petition could be taken up only on and from January 17 1978 At the conclusion of the hearing we reserved our judgment which is now being pronounced today.

(3.) Though the various steps taken by the concerned authorities for the purpose of holding the ensuing municipal election are challenged on behalf of the petitioners on numerous grounds set out in the petition the challenge was confide at the hearing only to the following two grounds :