- (1.)This Is a petition under Art. 226 of the Constitution The petitioners were candidates at the election held on 9-3-1968 to the Town Panchavat of Indi. They were declared to have been duly elected on 14-3-68 in so far as constituency No.1 is concerned and on 15-3-1968 in so far as constituency Nos.2 to 5 are Concerned. The first respondent filed an election petition under S.13 of the Mysore Village Panchavats and Local Boards Act. 1959, challenging the validity of the election of the present petitioners on two grounds, (i) the distribution of seats for wards 3 and 5 was not in compliance with the provisions of the Act. and (ii) the reservation of seats made for women was not in conformity with the circular order issued bv the Government on 28-10-1967. This petition was opposed bv the present petitioners The learned Munsiff upheld both the contentions of the petitioner Allowed the petition and declared the election of all the respondents to that petition as void. He accordingly set aside the election and directed the Deputy Commissioner. Biiapur. to take necessary steps for holding of fresh election to all the wards of the Town Panchayat of Indi.
(2.)The petitioners have attacked the validity of the finding's recorded by the Munsiff on both the points. Mr. Datar appearing for the petitioners contended that the learned Munsiff had taken a wholly erroneous view of the law and had set aside the election on wrong exposition' of the legal position.
(3.)As regards the first contention relating to the distribution of seats, Mr.Datar drew our attention to S.5(4) of the Act which provides for the determination of ratio of seats with reference to the population. That subsection reads :
"(4) The ratio between the number of members to be elected from each territorial constituency in a Panchayat and the population of that constituency as ascertained at the last preceding census shall, so far as practicable, be the same throughout the area within the jurisdiction of a Panchayat."
The plain meaning of this sub-section is that the number of seats shall bear as far as possible the same relationship in each constituency to the population oi that constituency. This position, has been clarified by this Court in H.G.Gopala Gowda v. State of Mysore, (1968) 2 Mys.L.J. 138. wherein their Lord- ships have laid down that if the determination of seats allotted to each constituency is impeached as not made in accordance with law, as is the case in the present proceedings, it is for the person who makes the impeachment to produce proof that it is invalid and that when the argument of invalidity rests on the contention that the ratio of S.5(4) of the Act is not maintained, it is for the person who asserts to prove it by furnishing the necessary information including what the population of each constituency was. In the present case no effort was made by the petitioner to indicate what was the population of each constituency. The learned Munsiff also has not concentrated himself to ascertain what is the popula- lation of each constituency of the village panchayat. Instead of ascertaining the population, the learned Munsiff has conducted himself in an erroneous way by proceeding to consider the contention of the petitioners and the provisions of the section as having reference to "population of voters". In paragraph 20 of his order he has noted what according to him is 'population of voters'. It is obvious from S.5(4) of the Act that the distribution of seats for each territorial constituency has to be made on the basis of of the population. It is needless to point out that population is quite different from the strength of the voters in any one constituency. The law does not require the number of voters to be taken into consideration in distributing the number of seats for each constituency. The learned Munsiff was, therefore, wholly wrong in considering what according to him was the population of voters, a criterion not contemplated by law. He has acted without material and his finding on this issue is patently Illegal.
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