State of Madhya Pradesh & Ors Vs.
Devilal [1985] INSC 258 (20 December 1985)
SEN, A.P. (J) SEN, A.P. (J) MADON, D.P.
CITATION: 1986 AIR 434 1985 SCR Supl. (3) 894
1986 SCC (1) 657 1985 SCALE (2)1470
ACT:
Madhya Pradesh Panchayats Act, 1962 -
Sections 106, 361 and 370 - Madhya Pradesh Panchayat Election and Co-option
Rules, 1963 - Rule 3 - Modification or alteration of the Constituencies of a
block once delimited by a Notification u/s 106 after the process of election of
members of Janapada Panchayat has started - Powers of the State Government -
What are - Affording an opportunity to electorate to raise objection - Whether
mandatory and necessary.
HEADNOTE:
After the establishment of Gram Sabhas
throughout the State under s.3 of the Madhya Pradesh Panchayats Act, 1962, the
State Government in accordance with s.103 divided Mandsaur District into eight
blocks with Manasa Block as one of them where a Janapada Panchayat was to be
established.
Under ss. 105 and 106 of the Act, the State
Government by a notification dated September 26, 1969 divided this Block into
twenty constituencies from which the representatives of the Janapada Panchayat,
Manasa were to be elected. After the Constituencies were notified, the
elections to the Gram Panchayats in the block were completed on November 8,
1970 and duly notified by the Collector on November 14, 1970. On the same day,
the new Gram Panchayats assumed office. On November 25, 1970, the State
Government published a notification under s. 106 of the Act for a re-distribution
of the constituencies of the block. On November 29, 1970, the Collector also
issued a notification reallocating the reserved seats for the Scheduled Castes
and Scheduled Tribes.
The respondent, Sarpanch of a Gram Sabha,
qualified to contest the elections of the President and Vice-President of the
Janapada Panchayat, Manasa, filed a petition under Art.
226 challenging the validity of notifications
dated November 25, 1970 and November 29, 1970 on the grounds : (1) that the
State Government had no statutory power under s. 106 of the Act to alter or
modify the constituencies once they had been notified and the process of
election had started ; (2) that the issuance of the notification was mala fide
and politically motivated with a view to further the prospects of the party in
power, and (3) that 895 assuming the State Government was empowered to alter or
modify the Constituencies of a block during the progress of election to the
Janapada Panchayats, the notification for re-distribution of the constituencies
was illegal and inoperative as it had been published without affording an
opportunity to the electorate to raise any objection.
The appellant State contested the petition
contending :
(1) that the Gram Panchayats and Janapada
Panchayats are two distinct and separate entities, and the Act envisages
different procedures for holding independent elections and merely because the
Gram Panchayat elections were over it could not be said that a notification
modifying the constituencies of the Gram Panchayats could not be issued under
s. 106; (2) that the notification seeking to alter the constituencies did not
pertain to the Manasa Block alone but to many other blocks in the district and,
therefore, the issuance of the notification was not actuated with political
motives, and (3) that the provisions of ss. 105 and 106 do not make it
obligatory on the part of the State Government to afford an opportunity of
raising objections.
The High Court quashed the notifications and
held that when the process of election of members to the Janapada Panchayat
starts, the State Government had no power to alter or modify the constituencies
of a block once delimited by a notification under sub-s. (1) of s. 106.
In the appeal to this Court on behalf of the
appellant- State it was contended that the view taken by the High Court was in
conflict with its earlier decision in Kalyansingh Kathor & Ors. v. The
State of Madhya Pradesh & Anr., A.I.R. 1974 M.P. 84, wherein it was held
that the exercise of the power by the State Government cannot be challenged
except on proof of mala fides.
Dismissing the appeal, ^
HELD : 1. The notification dated November 25,
1975 issued by the State Government under sub-s.(1) of s. 106 of the Madhya
Pradesh Panchayats Act 1962 is in-valid. [908 C]
2. The whole purpose of delimitation of a
block into constituencies under sub-s.(1) of s. 106 of the Act is to ensure
that every citizen should get a fair representation to the Gram Panchayat and
in turn to the Janapada Panchayat and the Zila 896 Panchayat. The result of any
election under a majority system depends in fact not only on the way people
vote but on the way their votes are distributed among the constituencies. It
was, therefore, impermissible for the State Government to redistribute the
constituencies in the Manasa Block under sub-s.(1) of s. 106. [907 B-C]
3. A close and combined reading of the
provisions of the Act make it quite evident that the actual control over the
Gram Panchayat in a block is through the Janapada Panchayat for the block and
the result of the elections to the Janapada Panchyat would depend upon the
nature of the electoral roll prepared for each constituency in a block. If the
State Government were to issue a notification under sub- s.(1) of s. 106 for
redistribution of the constituencies in a block after the process of election
had started, it would necessarily change the whole pattern of voting in the
election of members to the Janapada Panchayat. This is plainly a typical case
of gerrymandering, which means to arrange elections districts so as to given an
unfair advantage to the party in power by means of redistribution act or to
manipulate constituencies generally. [905 B-D]
4. Delimitation of the constituencies in a
block under sub-s. (1) of s. 106 is connected with the holding of election of
members to the Janapada Panchayat and delimitation of such constituencies would
arise when there is alteration in the limits of Gram Sabha area under sub-s.
(2) of s. 361 of the Act which brings about a
change in a block or alteration in the limits of the block under sub-s.
(4) of s. 370. Amalgamation, splitting up and
alteration in the limits of Gram Sabhas have to be carried out after following
the procedure prescribed by ss. 360 and 361.
Alteration of the limits of a block can be
affected by the State Government after following the procedure prescribed in
s.370 of the Act. [905 E-F; 906 B] In the instant case, there was no alteration
either in the limits of the Gram Sabhas area under sub-s. (2) of s. 361 or of
the block under sub-s.(4) of s. 370 and, therefore, there was no occasion for
the State Government to issue a fresh notification under sub-s. (1) of s. 106
restructuring the constituencies of the block. The notification issued by the
State Government seeking to alter constituencies of the block after the process
of election of members to the Janapada Panchayat had started and the
notification by the Collector for the reallocation of the reserved seats for
the members of the Scheduled Castes and Scheduled Tribes were wholly mala fide
and intended and meant to gain control over the Janapada Panchyat. [906 F-H; 907
A] 897
5. When there is an alteration in the limits
of a Gram Sabha area under sub-s. (2) of s. 361 or in the limits of a block
under sub-s. (4) of s. 370, it may be that the State Government would have to
issue the requisite notification for delimitation of the constituencies of such
altered block under sub-s.(1) of s. 106 of the Act. It is only upon compliance
of the mandatory requirements of sub-s. 3 then the State Government can proceed
to issue a notification.
[906 E-F]
6. It is only upon compliance of the
mandatory requirements of sub-s. 3 that the State Government can proceed to
issue a notification under sub-s. (4) of s. 370 for the alteration of the
limits of a block. This procedure implies the giving of an opportunity to the
persons affected. [908 A-B] In the instant case, there was really no occasion
for the State Government to have issued the notification dated November 25,
1970 seeking to restructure the constituencies of the block in the midst of the
elections. Even if there was such a power, the State Government was in duty
bound to publish the proposal giving an opportunity to the persons affected to
raise their objections to the proposed alteration.[908 B-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
2472 of 1972.
From the Judgment and Order dated 4.1.1972 of
the Madhya Pradesh High Court in Miscellaneous Petition No. 21 of 1971.
H.K. Puri for the Appellants. S.K. Dholakia,
S.K. Gambhir, Ashok Mahajan and Mrs. Sunita Kriplani for the Respondent.
The Judgment of the Court was delivered by
SEN, J. The issue involved in this appeal on certificate from a judgment and
order of the Madhya Pradesh High Court dated January 4, 1972 is as to the
powers of the State Government under s. 106 of the Madhya Pradesh Panchayats
Act, 1962 to modify or alter the constituencies of a block once delimited by a
notification issued thereunder after the process of election of members of the
Janapada Panchayat has started; particularly, without affording an opportunity
to the electorate to raise any objection. On the question involved, conflicting
views have been 898 expressed by two Division Benches of the High Court and the
High Court certifies that the question raised is one of frequent occurrence and
great importance.
By the judgment under appeal, a Division
Bench of the High Court has held that the provisions of the Act do not confer
any power on the State Government to modify or alter the constituencies once
fixed by a notification issued under sub-s. (1) of s.106 of the Act and fixing
the number of members to be elected from each constituency. It accordingly
struck down the impugned notification issued by the State Government dated
November 25, 1970 under ss. 105 and 106 of the Act purporting to restructure
the constituencies of the Manasa Block.
Put very briefly, the essential facts are
these. After the establishment of Gram Sabhas throughout the State under s. 3
of the Act, the State Government in accordance with s.
103 divided the Mandsaur District into eight
blocks with Manasa Block as one of them where a Janapada Panchayat was to be
established. Under ss. 105 and 106 of the Act, the State Government by a
notification dated September 26, 1969 divided this Block into twenty
constituencies from which the representatives of the Janapada Panchayat, Manasa
were to be elected, with one representative to be elected from each
constituency. After the constituencies were notified, the elections to the Gram
Panchayats in the block were completed on November 8, 1970 and they were duly
notified by the Collector, Mandsaur on November 14, 1970. On the same day, the
new Gram Panchayat assumed office. On November 25, 1970, the State Government
published a notification purporting to be under s. 106 of the Act for a
re-distribution of the constituencies of the block. On November 29, 1970, the
Collector also issued a notification reallocating the reserved seats for the
Scheduled Castes and Scheduled Tribes. The respondent who had been elected as
the Sarpanch of the Gram Sabha, Alhed and was thus qualified to contest the
elections of the President and Vice-President of the Janapada Panchayat,
Manasa, filed a petition in the High Court under Art.226 of the Constitution
challenging the validity of the impugned notification dated November 25, 1970
issued by the State Government for re-delimitation of the constituencies of the
block and the notification by the Collector dated November 29, 1970 for the
reallocation of the reserved seats for the Scheduled Castes and Schedule
Tribes. In assailing the validity of the impugned notification dated November
25, 1970, the respondent pleaded, inter alia, that the State Government had not
statutory power under s. 106 of the Act to alter or modify the 899 constituencies
once the same had been notified and the process of election had started, that
the issuance of the impugned notification was mala fide and politically
motivated with a view to further the prospects of the party in power and that,
even otherwise, assuming that there was such a power in the State Government to
alter or modify the constituencies of a block during the progress of election
to the Janapada Panchayat, the impugned notification for re- distribution of
the constituencies for the Manasa was illegal and inoperative as it had been
published without affording an opportunity to the electorate to raise any
objection. The respondent, accordingly, sought a writ in the nature of mandamus
and other appropriate writs, orders and directions under Art.226 of the
Constitution directing the State Government to forebear from giving effect to
the impugned notifications.
The appellants contested the writ petition
filed by the respondent on various grounds, namely : (1) The Gram Panchayats
and Janapada Panchayats are two distinct and separate entities and the Act
envisages independent elections to be held for the same. (2) The scheme of the
Act provides that the Act prescribes for different procedures for the holding
of elections to the Gram Panchayat elections were over on November 14, 1970, it
could not be said that a notification modifying the constituencies of the Gram
Panchayats could not be issued under s. 106 of the Act. (3) The impugned
notification seeking to alter the constituencies did not pertain to the Manasa
Block alone but to many other blocks in the district and therefore the
allegation that the issuance of the notification was actuated with political
motives was wholly without basis.
And (4) The provisions contained in ss. 105
and 106 of the Act do not make it obligatory on the part of the State
Government to afford an opportunity of raising objections and therefore the
State Government was justified in issuing the impugned notification.
On a construction of sub-s. (1) of s. 106 of
the Act, a Division Bench of the High Court by the judgment under appeal held
that the State Government has no power to alter or modify the constituencies of
a block once delimited by a notification issued thereunder. The High Court
referred to the scheme of the Act, particularly to s. 103 which contemplates
the division of blocks into constituencies. In the context, it observed that
looking at the provisions of s. 360 or s. 370 of the Act, it was evident that
where the legislature thought fit it had expressly conferred powers on the
State Government for altering 900 the limits. It referred to s. 360 of the Act
which provides for alteration in the limits of Gram Sabhas and s. 370 which
provides for alteration in the limits of the blocks and for the purpose of
alteration of such limits both of which also provide for the following of a
particular procedure. The High Court observed that on the contrary the
provisions contained in s. 106 nowhere contemplate the conferral of any such
power on the State Government for alteration of constituencies once fixed and
notified under ss. 105 and 106 of the Act. It stated that s. 107 was of no
avail as it deals with the constitution of a Janapada Panchayat and does not
relate to the delimitation of constituencies as that is specifically provided
for in s. 106 of the Act. It then added :
"The only question deserving
consideration is, as stated above, about the powers of the State Government to
do it. Consequently, as discussed above, there is no provision empowering the
State Government to alter the constituencies once prescribed and notified under
the provisions of s.
106 of the Act. Therefore, the notification
issued by the State Government, published in the Gazette dated 25th November,
1970 is beyond the powers of the State Government and has, therefore, to be
quashed." These observations must, in our opinion, be construed to mean
that when the process of election of members to the Janapada Panchayat starts,
the State Government has no power to alter or modify the constituencies of a block
once delimited by a notification under sub-s. (1) of s. 106 of the Act.
In the appeal, two questions mainly arise,
namely :(1) Whether the High Court was right in holding that the provisions of
the Act do not contemplate for any amendment of a notification issued earlier
under Sub-s. (1) of s. 106 of the Act dividing the block into constituencies or
fixing the number of members to be elected from each constituency.
And (2) Whether the impugned notification for
re-structuring the constituencies of the Manasa Block was invalid as it had
been issued without affording an opportunity to the electoral to raise any
objections. We shall deal with the questions in that sequence.
It is urged that the view taken by the High
Court was plainly in conflict with the view expressed by an earlier Division
Bench in Kalyansingh Rathor & Ors. v. The State of Madhya Pradesh &
Anr. A.I.R. 1972 M.P. 84. Bishambhar Dayal, CJ., 901 speaking for the Division
Bench, repelled the contention that the State Government had no power to modify
or alter the Constituencies in a block once fixed by a notification under s.
106 of the Act and stated :
"Constituencies could not be
unchangeable for ever. So far as Sections 360 and 370 are concerned, they
relate to an addition to or subtraction from the area of a Gram Sabha or a
particular block. The fixation of constituencies is not a matter of adding to
or subtracting from a particular Gram Sabha or block. It is a matter of
redistribution of a Gram Sabha into constituencies. That may be necessitated by
several reasons from time to time e.g. efflux of population from one Gram Sabha
to another or an increase or decrease of population at one place or another and
so on. The Legislature did not consider it necessary to provide any standard or
circumstances under which only such an amendment could be made by the
Government. The power to make amendments in the constituencies in the same
block was, therefore, left in the discretion of the Government. Since the power
has been vested in the Government, it is expected that the Government will
exercise that power in a responsible way and only when it is necessary in the
circumstances of the case, and will not, merely for the fun of it, start
altering constituencies and including Gram Sabha from one constituency in
another." Upon the view that the State Government had the power to alter
the constituencies in a block under s. 106 of the Act, as and when, it
considered fit, the High Court in Kalyansingh's case held that the exercise of
the power by the Government cannot be challenged except on proof of mala fides.
In that case, since mala fides were alleged the High Court declined to
invalidate a notification issued by the Government purporting to alter the
constituencies of a block, and added:
"Since power had been exercised which
the Government did possess, it must be assumed that it was for good reasons,
although the reasons have not been expressed." In the present case,
however, the High Court has left the question of mala fides untouched.
902 In order to appreciate the contentions
raised, it is necessary to deal with the scheme of the Act as it stood at the
relevant time. The Act provides for the formation of a three tier Panchayati
Raj. At the basic level, there is a Gram Panchayat for a village or group of
villages. S.3 of the Act provides that the State Government may, by
notification, establish a Gram Sabha for a village or group of adjoining
villages having a population of 1000 or more and shall specify the name by
which the Gram Sabha shall be known and the limits of the area within its
jurisdiction.
For every Gram Sabha there has to be a Gram
Panchayat, as enjoined by s.10, constituted in accordance with the provisions
of the Act. S.11 enacts that a Gram Panchayat shall consist of 10 elected
members and similar additional members depending upon the population, but not
exceeding 20 in all. The second level is constituted by what is known as the
Janapada Panchayat. Sub-s.(1) of s.103 provides that the State Government may,
by notification, divide a district into blocks. Sub-s.(2) thereof provides that
the notification under sub-s.(1) shall specify the name by which the block
shall be known and shall define the limits of the area comprised therein. S.104
provides that for every block, there shall be a Janapada Panchayat having
jurisdiction over the block. S.105 lays down that every Janapada Panchayat
shall consist of such number of members not being less than 15 and no more than
20, as the State Government may, by notification, specify. S.130 directs that
subject to general or special orders as may be issued by the State Government,
it shall be the duty of a Janapada Panchayat, so far as the Janapada Panchayat
fund at its disposal will allow, to make reasonable provision for the matters
anumerated therein.
S.133 provides that subject to the provisions
of the Act and the Rules made thereunder, every Janapada Panchayat shall
supervise the working of Gram Panchayats within the block and shall render such
assistance within the limits of its resources as may be necessary. At the apex
of the three tier panchayat hierarchy, there is a Zila Panchayat. S.166
provides that for every district there shall be established by the State
Government, by notification, a Zila Panchayat having jurisdiction over the
district. The powers and functions of the Zila Panchayat are described in
s.181. Sub- s.(1) of s.181 provides that subject to the provisions of the Act
and the Rules framed thereunder, it shall be the duty of the Zila Panchayat to
exercise its powers and functions in relation to subjects enumerated therein.
Cl.(1) thereof provides that it shall be the duty of the Zila Panchayat to
encourage the establishment and foster the development of Gram Panchayats in
the district, Cl.(ii) to examine and approve the budget of the Janapada
Panchayats in the district, (iii) to 903 distribute the funds allotted to the
district by the Central and State Government among the Janapada Panchayats in
the district, and cl.(iv) enables the Zila Panchayat to supervise the
activities of the Janapada Panchayats.
Under the scheme of the Act, the Gram
Panchayats at the base and the Janapada Panchayat at the second tier in a block
are both elected bodies. There is however a vital difference in the mode of
election to these bodies. The members of a Gram Panchayat are directly elected
by the electorate in a Gram Sabha area while those of a Janapada Panchayat for
a block are indirectly elected by an electoral college comprising of the
Panchas of the Gram Panchayats in such block. The difference in the mode of
election is brought out by these provisions. S.12 of the Act lays down that the
election and co-option of members of the Gram Panchayats shall be in accordance
with the rules made under the Act. In accordance therewith, the State
Government framed the Madhya Pradesh Gram Panchayat Election and Co- option
Rules, 1963. Chapter II provides for formation of wards and for reservation of
seats for members of Scheduled Castes and Scheduled Tribes, Chapter III for
preparation of voters' lists, Chapter IV provides for the administrative
machinery for the conduct of elections, Chapter V regulates the manner in which
elections are to be held, etc. As against this, sub-s.(1) of s.105 provides
that every Janapada Panchayat shall consist of such number of members not being
less than 15 and not more than 30, as the State Government may, by
notification, specify. Sub-s.(2) therefor provides that every Janapada
Panchayat shall be composed of (i) elected members, (ii) one member
representing the Municipal Corporation, Municipal Councils and Notified Area
Committees within the block elected by the Councillors of such authorities from
amongst themselves and (iii) all members of the State Legislative Assembly
returned from constituencies which wholly or partly fall within the block.
As already stated sub-s.(1) of s.103 provides
that the State Government may, by notification, divide a district into blocks.
Sub-s.(2) thereof provides that the notification under sub-s.(1) shall specify
the name by which the block shall be known and shall define the limits of the
area comprised therein. S.106 of the Act which is relevant for our purposes
provides for a division of a block into constituencies and runs thus:
"106. Division of block into
constituencies - (1) Subject to the provision of sub-section(2) the State
Government shall by notification - 904 (a) divide a block into constituencies;
(b) fix the number of members to be elected
from each constituency.
(2) The ratio between the number of the
members to be elected from each constituency in a block and the population of
that constituency as ascertained in the last preceding census, shall so far as
practicable, be the same throughout the block, (3) Where there are members
belonging to the Scheduled Castes or Scheduled Tribes residing within the
block, such number of seats shall be reserved for the members of Scheduled
Castes or Scheduled Tribes on the Janapada Panchayat as shall bear, as nearly
as may be, the same proportion to the total member of seats in the Janapada
Panchayat as the population of the members of the Scheduled Castes or Scheduled
Tribes in the block bears to the total population of such area." Sub-s.(1)
of s.107 provides that for every block there shall be a list of voters which
shall be prepared constituency-wise by the Collector or by any other officer
authorized by him in that behalf. Sub-s.(2) thereof provides that every Panch
of a Gram Panchayat situate within the block shall be entitled to be registered
in the list of voters of the block provided that no person shall be entitled to
be registered in the list of voters for more than one constituency. Sub-s. (3)
provides that every Panch whose name is registered in the list of voters
prepared under sub-s.(1) shall be eligible to be an elected member of the Janapada
Panchayat. S.109 provides that subject to the provisions of the Act the
election and co-option of a member of a Janapada Panchayat shall be in
accordance with the rules made under the Act. In accordance therewith, the
State Government framed the Madhya Pradesh Janapada Panchayat Election and
Co-option Rules 1963. R.3 provides that the Collector or any other officer
authorised by him shall subject to the provisions of s.107 cause a voters' list
to be prepared for each constituency by including therein the names of the
Panchas of the Gram Panchayats situate within the constituencies in a block. As
already mentioned, at the apex is the Zila Panchayat in a district which is a
statutory body constituted under s.167 comprising of (a) Presidents of Janapada
Panchayat within the district, (b) members of the Lok 905 Sabha representing
Parliamentary constituencies wholly or partly forming part of the district, (c)
members of the Rajya Sabha returned from the State and ordinarily residing in
the district, (d) members of the State Legislative Assembly representing
Assembly constituencies wholly or partly forming part of the district, and (e)
district officers representing various departments of the State Government.
A close and combined reading of these
provisions and the other provisions of the Act which follow hereafter make it
quite evident that the actual control over the Gram Panchayat in a block is
through the Janapada Panchayat for the block. It would also appear that the
result of the elections to the Janapada Panchayat would depend upon the nature
of the electoral roll prepared for each constituency in a block. If the State
Government were to issue a notification under sub-s.(1) of s.106 of the Act for
redistribution of the constituencies in a block after the process of election
has started, it would necessarily change the whole pattern of voting in the
election of members to the Janapada Panchayat. This is plainly a typical case
of gerrymandering. As is well-known, 'gerrymander' is an American expression
which has taken root in the English language, meaning to arrange election
districts so as to five an unfair advantage to the party in power by means of a
redistribution act or to manipulate constituencies generally.
Question of delimitation of constituencies in
a block under sub-s.(1) of s.106 of the Act is connected with the holding of
election of members to the Janapada Panchayat.
Question of delimitation of such
constituencies would necessarily arise when there is a alteration in the limits
of Gram Sabha area under sub-s.(2) of s.361 of the Act which brings about a
change in a block alteration in the limits of the block under sub-s.(4) of
s.370. It is not necessary for us to go into details except to refer to certain
relevant provisions. Amalgamation, splitting up and alteration in the limits of
Gram Sabhas have to be carried out after following the procedure prescribed by
ss.360 and 361. S.362 provides that where a notification under s.361 has been
issued the State Government may make such consequential orders as it may deem
fit in respect of (a) the constitution of the Gram Sabha and the Gram Panchayat
for the altered area where a local area has been included in or excluded from a
Gram Sabha; (b) for the dissolution of the existing Gram Sabhas which have been
amalgamated and the Gram Panchayats or subordinate agencies 906 thereof, as the
case may be, and the constitution of the amalgamated Gram Sabha and Gram
Panchayat thereafter; (c) the dissolution of the Gram Sabhas split up and the
constitution of the Gram Sabhas established in its place and the constitution
of the Gram Panchayats thereafter and matters ancillary thereto.
Alteration of the limits of a block can be
effected by the State Government after following the procedure prescribed in
s.370 of the Act. Sub-s.(1) of s.370 provides that the State Government may by
notification, signify its intention to alter the limits of a block by including
therein any local area in the vicinity thereof or by excluding therefrom any
local area comprised therein. Sub- s.(2) provides that every such notification
shall define the limits of the local area which is intended to be included in
or excluded from a block. Sub s(3) provides that any inhabitant of the area or
areas effected by a notification under sub-s.(1) may, if he objects to anything
therein contained, submit his objection in writing to the State Government
within 60 days of the publication of the notification and the State Government
shall take his objection into consideration. Sub-s.(4) provides that when 60 days
from the date of publication of the notification have expired and the State
Government has considered and passed orders on such objections as may have been
submitted to it within the said period the State Government may, by
notification, include the local area or any part thereof in the block or
exclude it therefrom. s.371 provides that on the issue of a notification under
sub-s.(4) of s.370, the State Government may make such consequential orders as
it may deem fit in respect of (i) the constitution of Janapada Panchayat for
the altered area, etc. When there is an alteration in the limits of a Gram
Sabha area under sub- s.(2) of s.361 or in the limits of a block under
sub-s.(4) of s.370, it may be that the State Government would have to issue the
requisite notification for delimitation of the constituencies of such altered
block under sub-s.(1) of s.106 of the Act.
In the instant case, there was no alteration
either in the limits of the Gram Sabha area under sub-s.(2) of s.361 or of the
block under sub-s.(4) of s.370 and therefore no occasion for the State
Government to issue a fresh notification under sub-s.(1) of s.106 of the Act
purporting to restructure the constituencies of the block. We have no doubt in
our mind that the impugned notification dated November 25, 1970 issued by the
State Government seeking to alter the constituencies of the blocks after the
907 process of election of members to the Janapada Panchayat had started and
that by the Collector dated November 29, 1970 for the reallocation of the
reserved seats for the members of Scheduled Castes and Scheduled Tribes were
wholly mala fide and intended and meant to gain control over the Janapada
Panchayat and were therefore liable to be struck down.
The whole purpose of delimitation of a block
into constituencies under sub-s.(1) of s.106 of the Act is to ensure that every
citizen should get a fair representation to the Gram Panchayat and in turn to
the Janapada Panchayat and the Zila Panchayat. The result of any election under
a majority system depends in fact not only on the way people vote but on the
way their votes are distributed among the constituencies. It was therefore
impermissible for the State Government to redistribute the constituencies in
the Manasa Block under sub-s.(1) of s.106 of the Act so as to give an unfair
advantage to the party in power to gain control over the Janapada Panchayat and
in turn over the Zila Panchayat.
This is precisely what has happened in this
case as is clear from the narration of facts. Although the High Court has not
touched upon this aspect, it is quite apparent that the act of gerrymandering
was to manipulate the result of the Janapada Panchayat and thereby materially
affect the constitution of the Zila Panchayat.
Turning to the next question, it is necessary
to state that the State Government in exercise of the powers under ss.105 and
106 of the Act has issued a composite notification dated August 31, 1965
signifying its intention to divide the Manasa Block into twenty constituencies
from which the representatives of the Janapada Panchayat were to be elected and
invited objections within 30 days from the date of publication of the said
notification. After consideration of the objections raised the State Government
by notification dated September 26, 1969 divided the block into twenty
constituencies with one representative to be elected from each constituency. As
already stated the elections to the Gram Panchayats were held on November 8,
1970 and on November 14, 1970 the Collector notified the result of the
elections and the Gram Panchayats assumed office on that date. All of a sudden,
while the process of election of members to the Janapada Panchayat was on, the
State Government issued the impugned notification dated November 25, 1970 under
sub-s.(1) of s.106 of the Act seeking to alter the constituencies of the block.
Normally, when the State Government intends to later or modify the limits of a
block, it has to follow the procedure laid down in s.370 of the Act. Sub-s.(3)
thereof confers a right on 908 the person effected to raise objections in
writing to the proposed alteration and costs a duty on the State Government to
consider such objections. It is only upon compliance of the mandatory
requirements of sub-s.(3) that the State Government can proceed to issue a
notification under sub- s.(4) of s.370 for the alteration of the limits of a
block.
That is the normal procedure provided which
implies the giving of an opportunity to the persons affected. There was really
no occasion for the State Government to have issued the impugned notification
dated November 25, 1970 seeking to restructure the constituencies of the block
in the midst of the election. Even if there was such a power, the State
Government was in duty bound to publish the proposal giving an opportunity to
the persons affected to raise their objections to the proposed alteration. The
impugned notification dated November 25, 1970 issued by the State Government
under sub-s.(1) of s.106 of the Act is therefore totally invalid.
The result therefore is that the appeal fails
and is dismissed with costs.
A.P.J. Appeal dismissed.
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