Wanchoo, C. J. - (1.) THIS is an application under Art. 226 of the Constitution by Laxminarain against the State of Rajasthan and others, and arises in the following circumstances :
(2.) THE applicant is a citizen and a voter of Pipar City in Tehsil Bilara. This city is said to have a population of over 10,000 but it had no municipality. THEre used to be a Gram Panchayat in this city established under the Marwar Panchayat Act. This Panchayat was working up to the 26th of September, 1955, when its term came to an end. THEreupon, fresh elections to the Panchayat were held under the Rajasthan Panchayat Act (No. XXI) of 1953 (hereinafter called the Panchayat Act ). THE applicant at that stage submitted to the authorities concerned that as Pipar City had been declared a municipality, the Panchayat Act had no application to it, and no elections should be held. This submission of the applicant was rejected by the Collector of Jodhpur, who was holding the elections, and the elections were held on the due date. THEreupon the applicant came to this Court, and his contention before us is that Pipar City has been constituted a municipal area, and therefore, the Panchayat Act does not apply to it, and we should forbid the working of any Panchayat in that area. No reply has been filed by the State about the facts put forward by the applicant. We may, therefore, take it that the facts stated by the applicant are correct. These facts are that the Government of Rajasthan issued a notification No. F. 1 (A) (9) L. S. G. A. 52, dated the 7th of August, 1952, and published in the Rajasthan Gazette, dated the 13th of September, 1952, (Part I), at page 566. This was a notification under sec. 7 (1) of the Rajasthan Town Municipalities Act (No. XXIII) of 1951 (hereinafter called the Municipalities Act ). By this notification the Government notified to the public that it intended to establish a municipality in Pipar City with the boundaries mentioned therein, and invited objections to the proposal. It seems that whatever objections were received must have been dealt with, for we find that another notification, dated 19th of August, 1953, was issued by the Government and was published in the Rajasthan Gazette, dated October, 3, 1953, (Part I), at page 777. That notification was under sec. 5 (1) of the Municipalities Act. and said that, under the powers conferred on it by sec. 5, sub-sec. (1) of the Municipalities Act, the Rajasthan Government declared Pipar City to be a municipality with the boundaries given in the notification. Thereafter, we understand that steps were taken to divide the new municipal areas into wards, and prepare lists of voters, and so on. It seems however that there was some opposition to the erection of a municipality in this area, and therefore, we find that a notification, dated 25th of July, 1955, was issued by the Government, and was published in the Rajasthan Gazette of August 27, 1956 (Part VI-A) at page 90. This notification was again under sec. 7 (1) of the Municipalities Act. It referred to a notification, dated the 4th of April, 1953, which we have not been able to find. It says that the Government had declared its intention to erect a municipality in Pipar City by the notification of the 4th of April, 1953, but that it had given up that intention and if any one had any objection in this matter that objection should be made within two months. We must say that this notification completely overlooks the notification, dated 19th of August, 1953, and published on the 3rd of October, 1953, by which a municipality was actually declared to be established in Pipar City. The latest notification in this connection is dated 17th of April, 1956, and is published in the Rajasthan Gazette, dated 2nd of June, 1956, in part VI (A) at page 69. By this notification, it was said that the State Government by virtue of its powers under sec. 5 (1) of the Municipalities Act declared that the municipality already established by notification, dated 5th of April, 1953, which again we have not been able to find, would continue to exist. A consideration of these notifications leads us to the conclusion that the area of Pipar City was declared a town municipality by notification, dated 19th August, 1953, published in the Gazette of October, 1953 and that notification still stands. A municipality, therefore, must be deemed to have been established in Pipar City within the limits mentioned in the notification as from the 3rd of October, 1953. We have now to consider the effect of the establishment of a municipality in Pipar City on the powers of the Panchayat. The Panchayat Act came into force on the 1st of January, 1954, under sec. 1, sub-sec. (2) of the Panchayat Act, it extends to the whole of Rajasthan except such areas thereof, as have been, or may hereafter be, declared as or included in, a Municipality. Therefore, the Panchayat Act does not apply to any area which has been declared a municipality. Further, under sec. 3 of the Panchayat Act, the State Government can, by notification in the Rajasthan Gazette, establish a Panchayat for a village or a group of villages not included within the limits of a municipality. It is clear, therefore, that it was never the intention of the legislature that municipality as well as a Panchayat should exist at the same time in the same area. It is also clear from the notifications issued by the Rajasthan Government, to which we have already referred, that the area known as Pipar City was declared a municipality on the 3rd of October, 1953. Whatever might have been the position up to the time the Panchayat Act came into force on the 1st of January, 1954, it is undeniable that from the 1st of January, 1954, no Panchayat could exist in Pipar City within the boundaries defined in the notification erecting the municipality, and no Panchayat could function within that area. In these circumstances, the election of the Panchayat in Pipar City within the boundaries mentioned in the notification (and it is not disputed before us that the election is within these boundaries) is against the provisions of the Panchayat Act. There can be no Panchayat functioning within these boundaries of the Pipar City municipality. We, therefore, allow this application, and declare that the election of the Panchayat at Pipar City held on 27th of November, 1955, was illegal and void. We further order that the Panchayat so elected will cease to function at once. As the application has not been opposed on behalf of the State or by the Panchayat, we order parties to bear their own costs. .;