- (1.) THIS is an application by Bhomaram and four others under Art. 226 of the Constitution for the issue of a writ of mandamus, prohibition and quo warranto against the State of Rajasthan and its Officers, and the Sarpanch and Panchas of the Panchayat at Bar established under a notification dated the 6th of November, 1954.
(2.) THE facts, which are not in dispute are these. There was a Panchayat existing at village Bar under the Marwar Village Panchayats Act, 1945 (hereinafter called the Marwar Act ). The jurisdiction of this Panchayat extended only over the village Bar and no further. Elections to this Panchayat were held on the 3rd of September, 1953, and after the election of the Panchas the Panchayat was constituted and started functioning from the 3rd of May, 1954. The term of this Panchayat consisting of seven Panchas was three years. It included four of the applicants before us. The Rajasthan Panchayat Act (No. XXI) of 1953 (hereinafter called the Act) came into force on the 1st of January, 1954, and under sec. 93 (1) thereof all laws in force in any part of Rajasthan relating to village Panchayats were repealed. Sec. 93 (2), however, saved the existence of the Panchayats which were existing, and is in these terms - "all Panchayats established under any laws as repealed, in existence on the date of commencement of this Act, shall continue and be deemed to have been established under this Act but the State Government may, in any case, and shall, in the case of Panchayats constituted otherwise than in accordance with the principal of adult franchise direct that any such Panchayat shall be reconstituted in accordance with the provisions of this Act". Then there were three provisions which provided for vesting of the funds etc. , and the transfer of cases to the reconstituted Panchayat. The applicant's case is that by virtue of this provision, the Panchayat, which was established at Bar under the Marwar Act, continued, and some of the applicants were functioning as Panchas of that Panchayat. In November, 1954, the State Government issued a notification in the Rajasthan Rajpatra, and established Panchayats for various villages including Bar under the powers conferred, on it by sec. 3 of the Act. Thereafter, an election is said to have been held for the Panchayat so established at Bar. This Panchayat consisted of village Bar and six other villages. In the election, the applicants were defeated and opposite parties Nos. 5 to 16 were elected. Thereupon, the present application has been made, and the case of the applicants is that the State Government had no power under sec. 3 to establish a Panchayat under sec. 3 of the Act consisting of Bar and other villages and that if it desired to change the boundaries of the Panchayat existing at Bar, which had been continued by sec. 93 (2) of the Act, it should have proceeded under sec 86 of the Act. Inasmuch as the State did not do so, the applicants contend that there was no proper Panchayat established for the area consisting of Bar and six other villages, and therefore the opposite parties Nos. 5 to 16 are not entitled to work as Sarpanch and Panchas of the so called Panchayat established by the notification published in November, 1954. The application has been opposed on behalf of the State, and their main contention is that the State has power under sec. 93 (2) of the Act to act in the manner in which it has done, and that it has only reconstituted the Panchayat as provided by sec. 93 (2 ). The main question therefore that falls for decision is whether the State Government has power under sec. 93 (2) to act in the manner in which it has done. Sec. 93 (2) may be divided into two parts. By the first part, all Panchayats, which were established under the laws repealed by the Act, were to continue, and were deemed to have been established under the Act. Thus the Panchayat at Bar, which had jurisdiction only in the area of village Bar, was continued by this provision, and was deemed to have been established under sec. 3 of the Act. Then came the second provision, and it is the interpretation of this provision which is in dispute. By this the State Government was given the power to reconstitute Panchayats in accordance with the provisions of the Act. We have to see what the word 'reconstitute' means in the context in which it has been used. This part of sub-sec. (2) lays down that the State Government may, in any case, and shall, in the case of Panchayat constituted otherwise than in accordance with the principle of adult franchise, have the power of re-constitution. Obviously the intention of the legislature was that where existing Panchayats, which were continued and deemed to have been established under the Act by the earlier part of sec. 93 (2), were not elected on adult franchise, the State must dissolve those Panchayats and reconstitute them by re-election according to the provision of the Act. The State Government was further given the discretion, in case of all those existing Panchayats which had been elected on adult franchise, to continue them as they were, or to order re-election even in their case. The reason for this seems to be that in the Act there was provision for appointment of Panchas from among the scheduled caste, if no person belonging to such caste had been elected to the Panchayat, and the legislature might have thought that such existing Panchayats, even though elected on adult franchise, which had no scheduled caste members, might, if the State Government so desired, be dissolved and reconstituted, so that members of the scheduled castes might be provided seats on it. In any case, we find it difficult to accept that the word 'reconstituted' was intended |n sec. 93 (2) to be used in place of the words "abolished and re-established". It is on|ly by substitution of the words "abolished and re-stablished" for the word 'reconstituted' that the State Government would have the power to abolish existing Panchayats and reconstitute them by adding to, or subtracting from their jurisdiction. It seems to us that the second part of sec. 93 (2) had nothing to do with the area under the jurisdiction of the Panchayat. All that it provided was that where the existing Panchayat had not been elected on adult franchise, it must be dissolved, and a new election held, and where it was elected on adult franchise, the discretion was left with the State Government to decide whether it should be dissolved and re-election should take place, or not. The word 'constituted' has been used in this very part of the section, and there obviously it refers not to the area of the panchayat, but to the personnel It stands to reason, therefore, that the word 'reconstituted', which appears in the later part of the same sentence, also refers only to the personnel and not to the area under the panchayat. We are, therefore, of opinion that the State Government had no power under sec. 93 (2) to change the areas of the existing Panchayats. All that it could order was a new election in case it though that even thought the existing Panchayats had been elected under adult franchise, there should be re-election for other reasons. There is a provision in sec. 86 of the Act for including, excluding or transferring areas. This section applies to all the Panchayats established under the Act. Under sec. 93 (2) the Panchayat for the village Bar alone must be deemed to have been established under sec. 3 of the Act as soon as the Act came into force on the 1st of January, 1954. Therefore, any addition to the area of the existing Panchayat at Bar can only be made under sec. 86 of the Act. Sec. 3, in our opinion, only applies to establishment of Panchayats in areas where no Panchayats existed at the time of the notification under that section. If the intention was to give complete power to the State Government to vary the areas of the existing Panchayats. we should have found different words altogether in sec. 93 (2) itself. We are, therefore, of opinion that it was not open to the State Government to establish a Panchayat under sec. 3 for the village of Bar because there was already a Panchayat existing in that village when the Act came into force All that the State Government could do was to take action under sec. 86, and include further areas in the Panchayat of Bar if it was so desirable. We may point out that this could have been done only at the request of the Panchayat or of the residents of any Panchayat circle, village or other area. It could not have been done by the State Government of its own motion, for the words "of its own motion" do not appear in sec. 86. As admittedly the State Government did not take action under sec. 86, the Panchayat, which was established by the notification published in November, 1954, under sec. 3 cannot be said to have been properly established under the provisions of the Act. We, therefore, allow the application, and issue a writ of Quo Warranto to opposite parties No. 5 to 16 prohibiting them from acting as Sarpanch and Panchas of the so called Panchayat established by the said notification. Considering that the applicants came to us only after they had lost in the election, we order parties to bear their own costs. . ;