1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3545 OF 2010 1. Jadhav Shankar Dyandeo ] Age 54 years, Occ: Agriculture ] Residing at Tambi Punarwasan, ] Taluka – Koregaon, District Satara ] 2. Mr. Sapkal Sampat Bhau ] Age 48 years, Occ: Labour, ] Residing at Tambi Punarwasan, ] Taluka – Koregaon, District Satara ]..Petitioners versus 1. The Collector at Satara ] having office at Powainaka, ] Satara, District – Satara ] 2. The Election Commission ] Maharashtra, ] having office Opposite Mantralaya, ] Mumbai, Maharashtra ]..Respondents Mr. U. P. Warunjikar for Petitioners. Mrs. M. P. Thakur – AGP for Respondent No. 1. Mr. S. S. Shetye for Respondent No. 2. CORAM : D. D. SINHA AND MRS. MRIDULA BHATKAR, JJ. Judgment Reserved on : 21.07.2010 Judgment Pronounced on : 01.09.2010 JUDGMENT : (Per : D. D. Sinha, J.) Heard the learned counsel for the petitioners, learned Assistant Government for the respondent no.1 and the learned counsel for the 2 respondent no. 2. 2. Counsel for the petitioners has submitted that the petitioners are project affected persons, who became landless and were rehabilitated in Village Revadi by allotting an area admeasuring about 4000 sq. ft. each. The petitioners made representation for formation of separate village of all the rehabilitated villagers as they have separate problems than the other villagers. On 6th August 1995 notification was issued by the Additional Collector by exercising power under section 4(1) of The Maharashtra Land Revenue Code, 1966 (for the sake of brevity and convenience referred to as “MLR Code”) and new village by name Tambi Punarvasit came to be established. On 4th December 1999 notification in official gazette by exercising power under section 4(2) of The Bombay Village Panchayats Act, 1958 (for the sake of brevity and convenience referred to as “ the BVP Act”) and Article 243 (g) of the Constitution of India, 1950 (for the sake of brevity and convenience referred to as “the Constitution”) was published. 3. It is submitted that on 12th January 2010 notice in Form ‘B’ under Rule 5(2) of The Bombay Village Panchayats (Number of Members, Divisions into Wards and Reservation of Seats) Rules, 1966 ((for the sake of brevity and convenience referred to as “BVP Rules, 1966”) was issued by the respondent no.1 on behalf of respondent no.2 in respect of Village 3 Panchayat Tambi. Objections were invited for proposed formation of wards. Objections were raised by the petitioners and others on 14th January 2010. Similarly notice under section 80 of the Civil Procedure Code was issued on 18th January 2010 through advocate. On 30th January 2010 impugned order was passed by respondent no.1 on behalf of respondent no. 2. 4. The counsel for the petitioners has submitted that the present petition was filed in April 2010. The Assistant Commissioner of respondent no.2 filed his affidavit dated 5th May 2010 and admitted that 18 families who were residing in Village Revadi were included in Village Tambi since such inclusion was necessary so as to match the population ratio as provided under MLR Code. It is submitted that reason for inclusion is that all civic facilities are provided by Village Tambi even though the said families form part of Village Revadi. The counsel for the petitioners further contended that in the affidavit of Tahsildar of Koregaon dated 18th June 2010 it is admitted that 18 families have been included in Village Tambi. It is submitted that in order to appreciate the controversy in issue, provisions of Sections 3(24), 3(14) and 3(25) of the BVP Act needs to be considered. Section 4 deals with the declaration of Declaration of Village and Section 5 deals with Establishment of Panchayats. In the present case both notifications are issued in respect of Village Tambi under Section 4 of MLR Code and under section 4 read with Article 243(g) of the Constitution. 4 Provisions of Rule 3 of BVP Rules 1966 contemplates division of village into wards. Similarly under the Rules the word “Village” is not defined and therefore it is necessary to go by the definition of “Village” mentioned in Section 3(24) of the BVP Act. It is therefore contended that in any case there cannot be inclusion of villagers of one village into another village while formation of wards. 5. It is contended that Rule 5 of BVP Rules, 1966 stipulates constitution of a Panchayat. The word “Panchayat” has been defined under Section 3(14) of the BVP Act. Similarly Section 5 states that in every village there shall be a Panchayat and therefore if there is a separate Panchayat for Village Tambi then by exercising power under Rule 5 the villagers of Village Revadi cannot be included in the village Tambi. The counsel for the petitioners further contended that Rule 5 contemplates issuance of notification in Form ‘A’. In any case by exercising power under sub rule (1) of Rule 5 or sub rule (2) of Rule 5 boundaries of the village as contemplated under Section 3(24) of the BVP Act read with Article 243(g) of the Constitution, as well as Section 4 of the MLR Code cannot be altered. The BVP Rules 1966 has been framed by exercising power under Section 176(1)(2)(iia), therefore, in any case the Rules are framed by exercising power with reference to Section 10 i.e. “Constitution of Panchayat” and therefore the boundaries of the village cannot be altered nor the villagers from another village can be 5 included in another village at the time of formation of wards. 6. It is further submitted by the learned counsel for the petitioners that title of Rule 5 BVP Rules 1966 deals with publication of constitution of panchayat. Sub rule (1) contemplates number of members of a panchayat, the number of ward into which each village shall be divided, number of villagers which shall be elected from each ward and the ward or wards in which seats are reserved for scheduled castes, scheduled tribes, backward class of citizens and women, shall be published by an officer authorised by the State Election Commissioner, by issuing notification in Form ‘A’. It is contended that the declaration of village once is made by issuing notification under sub clause (g) of Article 243 of the Constitution the said village shall be known by name of the said village specified in that notification and the State Election Commissioner does not have any power either under Section 4 of the BVP Act or under Section 4 of the MLR Code to alter, modify the said declaration made by the State Government under these provisions. It is submitted that merely because elections in the year 2000 and 2005 were held on the basis of inclusion of 18 families of Village Revadi into the Village Tambi, cannot be a valid ground to conduct the present election of the Gram Panchayat of Tambi by including 18 families of Village Revadi into Village Tambi. The said action of the Election Commission is illegal and therefore unsustainable in law. It is contended 6 that the objection raised by the petitioners in this regard was wrongly rejected by the Competent Authority. 7. Learned counsel for the respondent no.2 has submitted that the contentions canvassed by the learned counsel for the petitioners are devoid of substance and therefore cannot be accepted. It is contended that Rule 5 deals with the publication of constitution of a panchayat. It also provides for publication of draft notification declaring the number of members of Panchayat, the number of wards into which each village shall be divided, the extent of each such ward and number of members which shall be elected from each ward. It further provides that the copy of the said notification shall be affixed at Village Revadi so also at a conspicuous place in the village and in case of panchayat for a local area comprising a group of revenue villages or hamlets forming part of a revenue village, in each of such village or hamlet. It is contended that sub rule (2) of Rule 5 provides for inviting objection from any affected person(s) and it further provides that after hearing the affected person(s), the Collector shall issue a final notification under Rule 5(i) of the BVP Act. It is submitted that Chapter IX of the Constitution deals with the Panchayats. Article 243 defines various terms such as “Panchayat”, “Panchayat area”, “Village”. Article 243(d) stipulates “Panchayat” means an institution of self government, constituted under Article 243-B for the rural areas. Article 243(e) contemplates 7 “Panchayat area” means the territorial area of a Panchayat. Article 243(g) contemplates “Village” means a village specified by the Governor by public notification to be a village for the purposes of this Part and includes a group of villages so specified. Article 243-B deals with Constitution of Panchayats ....... “There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part”. Article 243-K deals with Elections to the Panchayats. Article 243- K(i) deals with “The superintendence, direction and control of the preparation of electoral rolls, for, and the conduct of, all elections of the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor”. Counsel for the respondent no. 2 further submitted that Section 10A of the BVP Act provides “The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of all elections shall be vested in the State Election Commissioner.” Sub section (2) of Section 10A empowers the State Election Commissioner to delegate any of his powers and functions to any officer of the State Government not below the rank of Tahsildar. Counsel for the respondent no. 2 in the context of the scheme of the above referred provisions of the BVP Act, BVP Rules and Constitution has submitted that elections are to be conducted for Panchayat and not for village. It is submitted that “Panchayat area” and “Village” has been defined separately. The definition of village makes it clear that it also includes group 8 of villages and part thereof. 8. Counsel for the respondent no.2 further submitted that Rule 5 of BVP Rules, 1966 needs to be read with provisions of Chapter IX of the Constitution. It is submitted that the authorities are require to declare the panchayat area, which may constitute amalgamated group of villages or part of villages. Counsel for the respondent no.2 further submitted that notification under Rule 5(1) determines the “Panchayat Area” of Tambi Village Panchayat for the purpose of election to the said Village Panchayat. It is contended that in other words revenue limits of villages and territorial area of Village Panchayats are two separate terms which are separately defined in the Constitution of India, so also the BVP Act, 1958. Thus there is absolutely no merit in the contentions raised by the petitioners and therefore petition deserves to be dismissed. 9. Counsel for the respondent no. 2 further contended that the challenge in the present petition is to the “formation of wards” in Panchayat elections. In other words petition challenges the delimitation of Panchayat area / constituencies determined by the authorities and therefore in view of provisions of Article 243-O, it is well settled that the delimitation of Panchayat area or constituencies in the said area are not open to judicial scrutiny. In order to substantiate the said contention, reliance is placed on 9 the decision of the Apex Court in the case of State of Uttar Pradesh vs. Pradhan Sangh Kshettra Samiti [1995 (Supp.2) SCC 305]. The challenge can be entertained by the court only on the ground that before delimitation, no objections were invited and no hearing was given. It is submitted that in the present case admittedly the objections were invited. Petitioners had raised their objections and after hearing them the objections were turned down by the Collector Satara by recording reasons and therefore impugned order is sustainable in law. 10. The learned Assistant Government Pleader supported the stand taken by the learned counsel for the respondent no. 2 as well as the impugned order. 11. Considered the contentions canvassed by the respective counsel. Perused the relevant Rules, relevant provisions of the Act and Rules, as well as Constitution and perused the decision of the Apex Court in the case of State of Uttar Pradesh (cited supra). 12. In the present petition, the petitioners are challenging the order passed by the Collector Satara dated 30th January 2010 whereby objections raised by the petitioners to the final notification issued under Rule 5 of the BVP Rules 1966 came to be rejected. In other words the petitioners are 10 challenging the formation of wards of Tambi Village Panchayat, District Satara. Chapter IX of Constitution deals with Panchayats and Article 243 provides definitions. For our purpose, Article 243(d), (e) and (g) are relevant, which reads thus:- “Article 243(d) “Panchayat” means an institution (by whatever name called) of self government constituted under article 243-B, for the rural areas; “Article 243(e) “Panchayat area” means the territorial area of a Panchayat; “Article 243(g) “village”, means a village specified by the Governor by public notification to be a village for the purposes of this Part and includes a group of villages so specified.” It is therefore evident that the territorial area of a Panchayat is distinct and separate from the revenue limits of the village which also include group of villages. Similarly, Article 243-C deals with compositions of panchayats and Article 243-K deals with Elections to the Panchayats. Article 243-K(1) contemplates the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. [Sub clauses 2, 3, 4 of Article 243-K are not relevant for deciding the issue in question]. Article 11 243-O prohibits interference by the court in electoral matters and contemplates that notwithstanding anything in this Constitution the validity of any law relating to delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article243-K, shall not be called in question in any court. Sub clause (b) stipulates that no election to any Panchayats shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. It is therefore evident that as per the provisions of Article 243-O(a) once the power exercised by the State Election Commission in relation to delimitation of constituencies or allotment of seats to such constituencies of the Panchayat, such action cannot be called in question in any court. The issue is no more res integra and is covered by the decision of the Apex Court in case of State of Uttar Pradesh (cited supra). Relevant observations are in paragraph 45 of the said judgment, which reads thus : “(45) WHAT is more objectionable in the approach of the High Court is that although clause (a) of Article 243- O of the Constitution enacts a bar on the interference by the courts in electoral matters including the questioning of the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such 12 constituencies made or purported to be made under Article 243-K and the election to any panchayat, the High Court has gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them. We may, in this connection, refer to a decision of this court in Meghraj Kothari v. Delimitation Commission. In that case, a notification of the Delimitation Commission whereby a city which had been a general constituency was notified as reserved for the Scheduled Castes, This was challenged on the ground that the petitioner had a right to be a candidate for Parliament from the said constituency which had been taken away. This court held that the impugned notification was a law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made under Article 327 of the Constitution, and that an examination of S. 8 and 9 of the Delimitation Commission Act showed that the matters therein dealt with were not subject to the scrutiny of any court of law. There was a very good reason for such a provision because if the orders made under S. 8 and 9 were not to be treated as final, the 13 result would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court. Although an order under Section 8 or Section 9 of the Delimitation Commission Act and published under Section 10 (1 of that Act is not part of an Act of Parliament, its effect is the same. Section 10 (4 of that Act puts such an order in the same position as a law made by Parliament itself which could only be made by it under Article 327. If we read Articles 243-C, 243-K and 243-O in place of Article 327 and S.2(kk), 11-F and 12-BB of the Act in place of S. 8 and 9 of the Delimitation Act. 1950, it will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged nor the court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. The High court not only entertained the challenge but has 14 also gone into the merits of the alleged grievances although the challenge was made after the notification for the election was issued on 31/8/1994.” The plain reading of the above referred observations made by the Apex Court would show that if provisions of Article 243-C, 243-K and 243-O are read together the delimitation of Panchayat area or the formation of the constituencies in the said areas and allotments of seats to the constituencies could be challenged nor the court can entertain such challenge except on the ground that before delimitation, no objections were invited and no hearing was given, even though this challenge also could not be entertained after the notification for holding the election is issued. The law declared by the Apex Court is loud and clear and prohibits courts to entertain challenge in view of Article 243-C, 243-K read with 243-O in respect of the above aspects, and therefore the challenge raised by the petitioners pertaining to delimitation of Panchayat area or that of formation of constituency in the said area as well as allotment of seat to such constituencies cannot be entertained by this court since the objections were invited, petitioners have raised objections, hearing was given to them and it is only thereafter the objections were rejected by the Collector Satara by passing impugned order. The contentions canvassed by the petitioners based on Rule 2 (5) of BVP Rules, 1966 as well as Section 4 of MLR Code as well as Section 2(4) of the 15 BVP Act in view of Article 243-C, Article 243-K and 243-O coupled with the law declared by the Apex Court in State of Uttar Pradesh (cited supra) is devoid of substance. 13. Petition suffers from lack of merits and the same is dismissed. No order as to costs. (D. D. SINHA, J.) (MRS. MRIDULA BHATKAR,J.)