1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6891 OF 2010 Nazirkhan Fakirkhan Pathan .. Petitioner Versus 1. The State of Maharashtra and others .. Respondents Shri V. D. Sapkal, Advocate for the Petitioner. Shri S. K. Tambe, A.G.P. for the Respondent No. 1. Shri S. T. Shelke, Advocate for the Respondent Nos. 2 to 4. Shri S. B. Bhosale, Advocate for the Respondent Nos. 5 and 6. CORAM : P. V. HARDAS AND N. D. DESHPANDE, JJ. DATE : 18TH AUGUST, 2010. PER COURT : . This is a petition under Article 226 of the Constitution of India by which the petitioner prays for issuance of a writ for quashing and setting aside notification published by the Collector on 10.05.2010. 2. The principal challenge to the formation of the wards is 2 that under the provisions of law after the publication of the draft notification and receipt of the objections, the authority empowered under the Rules i. e. the Collector should hear and thereafter issue the notification under Rule 5(2) of the Rules. The grievance of the petitioner is that it was the Tahsildar who had heard the objectors and, therefore, it was a violation of the mandatory provisions necessitated the hearing to be given by the authority who had issued the notification under the Rule 5(2) for the aforesaid purpose. Our attention has been invited by Shri Sapkal, learned counsel for the petitioner to the draft notification which came to be published and then which came to be objected by a vast majority of villagers which also included the present petitioner. Our attention was further invited to Exhibit - E, a communication addressed by the Tahsildar dated 24.05.2010, addressed to the petitioner calling upon the petitioner to attend the hearing in response to the objection submitted by the petitioner before the Additional Collector. The learned counsel for the petitioner further invited our attention to the mandates of the meeting of the villagers in which it is recorded by the Tahsildar that the Tahsildar should take hearing in respect of objections regarding the Ward Formation as well as the reservation of the Wards. It appears that, the petitioner had 3 submitted a communication dated 31.05.2010 by which the petitioner has pointed that the hearing was conducted by the Tahsildar and not by the authority competent in law. Mr. Sapkal, learned counsel for the petitioner also invited our attention to paragraph 2 of the affidavit in reply submitted by the Tahsildar, particularly to the following sentence which we quote "after the draft publication of ward formation, the objectors were called for hearing. The hearing took place. It was agreed that the meeting of the villagers be convened in the village for the purpose of ward formation and allotment of reservation. Accordingly, the meeting was convened on 30.05.2010 and I was the Chairperson of that meeting. The ward formation and allotment of the reservation was finally determined." 3. In response to the notice and during the hearing of this writ petition, the respondent Tahsildar has submitted additional affidavit. The additional affidavit is taken on record. As per the additional affidavit which we find to be in addition to the affidavit already submitted, the Tahsildar states that the hering in respect of objection was in fact held in the meeting hall in the Collectorate office. It is stated that, in fact it was Additional Collector, who had heard the objectors as he was holding the 4 charge of the Collector on that day. It is thus further stated that after the hearing it was at the suggestions of the objectors that the meeting of the villagers shall be adjourned and it shall be convened in the office of village panchayat Jogeshwari to discuss the actual problem of these four villagers and with concurrence of the villagers therefore, ward formation and reservation came to be finalized and it was submitted for approval to the Additional Collector who accorded the sanction. 4. Mr. Sapkal, learned counsel for the petitioner has relied upon the judgment of the Full Bench of this Court in Anil Amrut Vs. District and Sessions Judge, Aurangabad 2002 (3) Mh. L. J. 750 to urge before us that the word occurring in the relevant Rules would include the application of mind, personal hearing and recording of reasons by the authority. It is therefore, urged before us that since hering was granted by the Tahsildar and not by the Additional Collector, the notification issued pursuant to the hearing is vitiated and is liable to be struck down. It is further urged before us by relying on the judgment of the Division Bench of this Court in Nandkishor Mohanlal Lahoti Vs. State of Maharashtra and others 2007 (Supp.) Bom. C. R. 747, that the Collector who has himself 5 being delegated the powers by the Election Commission cannot further sub delegate the powers to the Tahsildar or Sub Divisional Officer and such sub delegation would be bad in law. It is therefore, urged before us that the notification is liable to be struck down. 5. Mr. Shelke, learned counsel for the respondents has urged before us that, there has been no delegation of the powers and in fact it was the Additional Collector who had considered the objections in as much as hearing was given by the Additional Collector, to the objectors. However, since a large number of objectors were present and at the suggestions of the objectors the meeting was adjourned to the office of village Panchayat Jogeshwari to consider the problem of four villages which constitute the group gram panchayat. Thereafter, the ward formation and reservation was finalized between the villagers and the same was placed before the Additional Collector who thereafter has sanctioned it. Therefore, notification in fact came to be issued on the basis of the hearing which had taken place before the Additional Collector and the subsequent suggestions made by the villagers and placed before the Additional Collector by the Tahsildar. The notification therefore in such 6 circumstances is not vitiated. 6. There has been, according to us, a substantial compliance of the mandatory provisions both in its letter as well as in its spirit. The Additional Collector had granted hearing to the objectors and had heard their objections. Since the villagers had suggested that the meeting be adjourned to the office of the village Panchayat Jogeshwari in order to discuss the problems of the four villages the meeting was posted in the office of village panchayat Jogeshwari to hear the villagers and thereafter to put forth the suggestions of the villagers for the consideration of the Additional Collector. The additional collector, thereafter has sanctioned the aforesaid suggestions which thereafter turned into the notification. In such circumstances, therefore, according to us, the notification is not vitiated on this count. 7. Having considered the grounds urged before us by the learned counsel for parties, according to us, there is no merit in the present petition and the present petition therefore deserves to be dismissed and is accordingly dismissed with no order as to costs. 7 8. In respect of the averrments made by the learned counsel for the petitioner that on account of formation of the wards, the disproportionate population is present in the wards. No endeavor has been made by the respondents in ensuring that there is a equal distribution of population in each ward. According to us, since the election programme has already commenced and the stage of submission of the nomination papers is virtually come to an end with the scrutiny of the nomination papers to be held on 23rd August, 2010 and the poling is on 05th September, 2010, any interference at this stage in the said formation of ward would result into hampering the election process. In that light of the matter, petition is dismissed with no order as to costs. [ N. D. DESHPANDE, J.] [ P. V. HARDAS, J.] bsb/Aug.10