Decided on January 18,1973


Referred Judgements :-


Cited Judgements :-



J.B.MEHTA, S.H.SHETH - (1.)The petitioner who is a registered voter in the village Khad-Khambhalia challenges in this petition the notification issued on September 27 1971 under sec. 20(1) of the Gujarat Panchayats Act 1961 hereinafter referred to as the Act by the competent authority dividing this Gram into three election wards and distributing three seats to each ward. The Khad-khambhalia Gram Panchayat originally consisted of four villages Khad-khambhalia Nava Dhunia Khatia and Rakka. From the inception of the Group Gram Panchayat in 1952 election was always uncontested and its 11 seats at that time had been divided as under:- Khad-khambhalia -6 Khatia -2 Nava Dhunia -1 Rakka -2 Thus as against 6 seats for Khad-khambhalia Nava Dhunia had only one seat for all these 18 to 20 years. The old Gram Panchayat had passed unanimous resolution to have separate Panchayats for all the four villages. However the State Government under sec. 9 of the Act gave separate Panchayats by constituting only Khatia and Rakka as new Grams while Nava Dhunia still remained joint with Khad-khambhalia. Nava Dhunia therefore did not get independent Panchayat and it was therefore given at the time of constituting these election wards a separate ward. The new Gram was divided into three election wards of which 6 seats in the first-two wards were given under the impugned notification to the village Khad-khambhalia while the remaining three seats were given to Nava Dhunia which was constituted into a separate ward. In each ward there was a reserved seat. There was one reserved seat for women and one was scheduled caste seat in the two wards in Khad-khambhalia while the remaining woman seat was reserved in the ward of Nava Dhunia village. As regards the voters strength the population of the village Khadkhambhalia of 1139 souls was divided into first and second ward respectively with 324 and 267 voters; while the population of 241 souls of Nava Dhunia was given ward No. 3 with its 145 voters. The petitioner therefore challenges this impugned notification on the ground that it hits the rocognised principle of one person one vote and thereby denies equal voting power to the Khad-khambhalia voters by giving almost double weightage to these voters of Nava Dhunia village. The petitioner has not only challenged the notification but he challenges even sec. 20(1) itself on the ground that it confers arbitrary and unguided power and that there is no provision for giving any opportunity of hearing and that therefore it is ultra vires Article 14 of the Constitution. The Taluka Development Officer has in his affidavit pointed out that a meeting of the village people of both the villages was called on July 8 1971 where the representatives mentioned therein who were the leaders of the two respective villages had after due consideration decided upon the formation of three wards after considering the population figures as per the relevant Census report. These wards were thus agreed upon after detailed discussion in the presence of the respective leaders of the villages and even one seat which was reserved in each ward was agreed upon. A report to that effect was submitted on August 4 1971 by the Taluka Panchayat to the District Collector stating that looking to the social and economic backwardness of the village Nava Dhunia separate ward should be given to that village. It was also stated in the report that distance from Nava Dhunia to Khad-khambhalia was more than 4 miles and that fact should be borne in mind. It was also pointed out that since establishment of the Panchayati Raj village Nava Dhunia was under joint Panchayat and that there was no voice of that village as the entire administration was carried out by Khad-khambhalia which was in majority. The two villages were already separate viz. Khatia and Rakka and on getting independent Panchayat they had now got minimum 9 seats each whereas this village Nava Dhunia was getting only two seats on account of the fact that it was backward and because its population had decreased. It was also observed in the report that giving only two seats to Nava Dhunia would result in injustice and it was therefore necessary that independent ward of 3 seats should be given to Nava Dhunia if not an independent panchayat so that proper representation can be given to this village which was socially and economically backward. Therefore even though population principle has been substantially borne in mind that being not the only criterion those historical facts were duly taken into account to give 3 seats by a separate ward to this village Nava Dhunia as per the relevant Government circular of August 18 1962 which was annexed and which lays down guide-lines in this connection.
(2.)Mr. Mehta has raised two points in this petition :
(1) That sec. 20(1) is ultra vires Article 14 as it confers arbitrary and uncanalised power and as no opportunity of hearing is provided therein before rights of the concerned voters are sought to be affected while notifying various election wards. (2) That in any event the impugned notification violates the recognised principle of one person one vote and thereby denies equal treatment to all the voters by giving almost double weightage to the voters of the village Nava Dhunia as compared to the voters of the village Khad-khambhalia and therefore in any event the notification must be struck down under Article 14.

(3.)As regards the first question an identical question has been concluded by the Division Bench in consisting of the learned Chief Justice and P. D. Desai J. in the decision in . in the context of sec. 452A of the Bombay Provincial Municipal Corporations Act as amended by the 1970 amendment. The learned Chief Justice speaking for the Division Bench vehemently relied upon the decision in Jyoti Prasad v. Union Territory of Delhi A.I.R. 1961 S. C. 1602 and pointed out that it was not essential for the legislation to comply with the rule as to equal protection that the rules for the guidance of the designated authority which is to exercise the power or which is vested with the discretion should be laid down in express terms in the statutory provision itself. Such guide-lines may be gathered from the Circumstances that led to the enactment of the law in question. That is the mischief that was intended to be remedied the preamble of the Act its scheme and provisions and even from surrounding circumstances and other well-known facts which may be brought to the notice of the Court. In the context of sec. 452 (1) in question the learned Chief Justice pointed out that the object of that provision was to give representation to the newly included areas of the Corporation and two modes were provided for giving such representation. If the mode of election is adopted there could be no doubt that the number of additional members to be elected from the included area must be proportionate to the population of such area. It was an elementary requirement of the principle underlying representation by elective process that each voter should have an effective vote and his vote should be worth as much as anothers. That principle has been judicially recognised by the United States Supreme Court in several decisions commencing from Wesberry v. Sanders 376 U.S. 1: 11 L. Ed. (Second Edition) 481 and there was no reason why it should not be accepted as a valid principle by our Courts.

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