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2009 DIGILAW 637 (GUJ)

Dhirubhai Premabhai Patel v. State of Gujarat

2009-10-05

H.N.DEVANI, M.S.SHAH

body2009
Judgment Ms. H.N. Devani, J.—In this petition under Article 226 of the Constitution, the petitioners have challenged the notification dated 20.7.2006 issued under Clause (2) of Article 243-Q of the Constitution specifying the entire areas of 27 gram panchayats in Surat District to be a larger urban area and including such larger urban area within the limits of the city of Surat and specifying that such area shall form part of the city of Surat. In the alternative, the petitioners have also prayed for a writ to direct the respondent - State to issue notification under Clause (2) of Article 243-Q of the Constitution read with Section 5 of the Bombay Provincial Municipal Corporations Act, 1949 to include the remaining village panchayat area in the concerned talukas making it retroactively effective from 20.7.2006. The petitioners have also prayed for a declaration that Respondent Nos. 4, 5, 6 and 7 have ceased to be members of the Surat District Panchayat on and from 20.7.2006 and Respondent No. 5 has also ceased to be Chairman of the Surat District Education Committee on and from 20.7.2006. The petitioners have also prayed for a writ to quash and set aside the result of the election of President of the Surat District Panchayat held on 22.1.2008. Three other reliefs are also prayed for which will be referred to hereinafter. 2. The facts leading to filing of this petition, briefly stated, are as under:— 2.1 Elections to the Surat District Panchayat were last held in October, 2005 and the five year term of the panchayat would come to an end on 8.11.2010. On 29.10.2005, the notification containing the names of elected members of the Surat District Panchayat was issued. As per the said notification, the Surat District Panchayat had 45 members with the following break up with reference to the number of members elected from each taluka:— Taluka No. of Members Taluka No. of Members Choryasi 6 Utchhal 2 Olpad 4 Songadh 3 Kamrej 2 Nizar 2 Palsana 2 Valod 2 Bardoli 4 Vyara 5 Mahuva 3 Mangrol 3 Umarpada 2 Mandvi 4 Total 31 Total 14 2.2 After the aforesaid elections, by notification dated 20.7.2006 issued under Clause (2) of Article 243-Q of the Constitution, the State Government specified areas of 27 gram panchayats to be larger urban areas and included them within the limits of the city of Surat. These areas accordingly form part of the metropolitan city of Surat governed by the Bombay Municipal Corporations Act, 1949. Section 264 of the Gujarat Panchayats Act, 1993 provides that when the limits of a district/taluka panchayat are, during the term of office of the members of the district/taluka panchayat, altered so as exclude any area therefrom, the State Government may by order provide for, inter alia, the interim reduction in the number of members of the district/taluka panchayat concerned and the termination of office of the elected members of the district/taluka panchayat, who are elected as such members from the areas so excluded. In view of this statutory provision, the Development Commissioner of the State Government called for details of the areas excluded from the concerned talukas and also from the Surat District and also the details of the members of the Surat District Panchayat who lost their membership. According to the petitioners, this information was supplied to the Development Commissioner on 23.7.2006 as per statement produced with the petition at C-81 to C-84. 2.3 Thereafter, the State Government by notification dated 27.9.2007 bifurcated Surat district into two districts—(i) Surat with headquarters at Surat and (ii) Tapi with headquarters at Vyara. This resulted resulted into exclusion of four talukas from the territorial limits of the Surat District Panchayat. Now Surat District has 10 talukas and Tapi consists of 5 talukas. This also entailed issuance of notification under Section 264 of the Panchayats Act making interim reduction of 14 members of the Surat District Panchayat, so that the number of members of the Surat District Panchayat was reduced from 45 to 31. 3. Petitioner No. 3 herein filed Special Civil Application No. 25 of 2008 making a grievance against inaction on the part of the State Government in not issuing notification under Section 264(1)(ii) for an interim reduction in the number of members of the Surat District Panchayat on account of exclusion of 27 gram panchayats from the territorial limits of the Surat District Panchayat upon their inclusion within the limits of the city of Surat. The petitioner prayed for such a notification. The learned Single Judge dismissed the said petition by order dated 11.7.2008. The petitioner prayed for such a notification. The learned Single Judge dismissed the said petition by order dated 11.7.2008. In Letters Patent Appeal No. 1253 of 2008 against the said order, this Court recorded the statement of the learned Advocate General that the State Government will issue the consequential notification under Section 264(1) of the Panchayats Act. The appeal was disposed of on 29.12.2008 after recording the above statement. 4. Thereafter on 12.1.2009 the State Government issued two notifications under Section 264(1) of the Panchayats Act - one notification terminating the office of one member of Mandvi taluka panchayat and one member of Mangrol taluka panchayat (both in Surat District) on account of conversion of certain gram panchayats into municipal boroughs and consequent alterations in the constituencies of the concerned taluka panachayat, where these constituencies were fully included in the urban areas and the second notification terminating the office of 12 members of Choryasi taluka panchayat in Surat District consequent upon inclusion of the entire areas of the concerned gram panchayats to be part of the larger urban areas within the limits of the city of Surat, whose constituencies were fully included in the urban areas. 5. According to the petitioner, the State Government was required to terminate the office of 4 members of the Surat District Panchayat representing the constituencies which were originally parts of Choryasi taluka, but thereafter included within the limits of Surat District by notification dated 20.7.2006 being Respondent Nos. 4 to 7 herein. The petitioners have given following particulars to show how the population of the concerned constituencies and the number of voters therein was substantially reduced :— Prior to 20.7.2006 On and after 20.7.2006 Constituency Population Voters Population Voters Member Population of Distt. of Panchayat constituency depleted by 1 Amroli 89,814 53,904 4,743 2,376 Res 4 95% 2 Bamroli 80,606 53,141 1,470 678 Res 5 98% 3 30 Puna 2,13,426 1,36,551 14,530 8,643 Res 6 85% 4 45 Variyava 56,488 31,842 19,824 11,634 Res 7 75% 6. The petitioners have alleged mala fides to the effect that although the population and number of voters in the above constituencies were reduced by 75% to 98%, the State Government did not terminate the office of Respondent Nos. 4 to 7 in order to gain and maintain majority of members of the Surat District Panchayat by the group represented by Respondent Nos. 4 to 7 in order to gain and maintain majority of members of the Surat District Panchayat by the group represented by Respondent Nos. 4, 5 and 6 which has been favoured by the State Government. It is further alleged that Respondent No. 4, though not eligible to continue as a member of the District Panchayat, presided over the meeting of the Surat District Panchayat held on 3.1.2009 and got passed a resolution with the help of Respondent Nos. 4 to 6 and other members belonging to their group to unseat Smt. Gitaben Rabari, a member belonging to the petitioners’ group. 7. Affidavit dated 17.4.2009 is filed by the Additional Secretary, Panchayats Department raising preliminary objections about maintainability of the petition on the ground that Special Civil Application No. 15988 of 2008 seeking similar reliefs was withdrawn by one of the petitioners on 6.2.2009 and that Special Civil Application No. 460 of 2008 filed by one of the petitioners challenging the election process for election of President of the Surat District Panchayat was disposed of on 18.1.2008 on the ground that the petitioner had alternative remedy. Apart from the above contention, it is further contended that the next elections of 24 district panchayats in the State are due in December, 2010. Hence, the State Election authorities have already started the exercise of delimitation and, therefore also, the petition may not be entertained. The delay in issuance of notification dated 12.1.2009 for interim reduction in the number of members of taluka panchayats is sought to be explained by stating that the State Government was concerned with the entire State dealing with the phenomenon of declaring a number of villages as urban areas and, therefore, the State Government could not come out with the required notifications under Section 264 immediately. Ultimately, three notifications came to be issued on 12.1.2009 cancelling in all 93 seats of various taluka panchayats and 2 seats of Ahmedabad District Panchayat where the whole areas of the taluka panchayats and district panchayats came to be included in the urban areas resulting into termination of the office of the respective elected representatives. Coming to the heart of the controversy in the present petition, the State Government has given the following justification for not terminating the office of Respondent Nos. 4 to 7 as members of the Surat District Panchayat :— “I respectfully say that so far as Respondent Nos. Coming to the heart of the controversy in the present petition, the State Government has given the following justification for not terminating the office of Respondent Nos. 4 to 7 as members of the Surat District Panchayat :— “I respectfully say that so far as Respondent Nos. 4 to 7 are concerned, their constituencies are admittedly not fully included in the urban areas of Surat Municipal Corporation and hence there was no question of including their names and constituencies in the aforesaid notifications. This would be regardless of the fact that because of the issuance of the aforesaid notifications, their names as voters will now be registered in the extended limits of Surat Municipal Corporation, but at the material time when they were elected, they were very much voters as per the list applicable to the erstwhile areas of theirs constituencies in Surat District Panchayat. In order to substantiate the aforesaid aspect of the matter, I attach herewith marked as Annexure-II, statements showing the comparative details with reference to Respondent Nos. 4 to 7. A mere perusal of the said comparative details mentioned against the names of the said respondents, makes it abundantly clear that a part of the area of their constituencies still remains within the rural limits of Surat District Panchayat which cannot call for the total termination of their office as elected members of the Surat District Panchayat, even though their names as voters are now borne in the voters’ list of the extended limits of the Surat Municipal Corporation.” 8. Since the petitioners and the respondents are relying upon the same figures of population and number of voters in the respective constituencies, it is not necessary to repeat the figures given by the State Government in the Annexures to the reply affidavit. The said statements give further details about the population and number of voters in each village falling within the concerned constituency. 9. Mr. S.V. Parmar, learned Counsel for the petitioners has submitted that the stand of the respondent authorities that a part of the area of the constituencies of Respondent Nos. 4 to 7 still remains within the rural limits of the Surat District Panchayat is illegal and unsustainable. The present petition is not barred by the doctrine of res judicata invoked by the respondents. Special Civil Application No. 15988 of 2008 was taken out for a writ of quo warranto against Respondent Nos. 4 to 7 still remains within the rural limits of the Surat District Panchayat is illegal and unsustainable. The present petition is not barred by the doctrine of res judicata invoked by the respondents. Special Civil Application No. 15988 of 2008 was taken out for a writ of quo warranto against Respondent Nos. 4 to 7 and the State Government was not a party to it. Special Civil Application No. 460 of 2008 was filed for challenging the election process for election of the seats of the district panchayat. In the proceedings for challenging the said election, there cannot be any challenge to inaction on the part of the State Government in not exercising the powers under Section 264(1)(ii) of the Panchayats Act. 10. Reference is made to the provisions of Articles 243, 243(d), 243-C(1) proviso, 243-E, 243-P and 243-QC of the Constitution. Reference is also made to Section 256 of the Gujarat Panchayats Act, 1993. Reference is made to Section 3-A of the Bombay Provincial Municipal Corporations Act, 1949 which wipes off panchayat institutions from the transferred area. There remains no nexus of Respondent Nos. 4 to 7 with rural area of the Surat District Panchayat. Mr Parmar for the petitioners further submitted that it is not for the petitioners to point to the respondent - State as to how to solve the difficulty created by them. Still, however, the State can resort to Section 287 of the Gujarat Panchayats Act and find the way out by passing an order to do anything which appears to the State Government to be necessary for the purpose of removing the difficulty arising in giving effect to the provisions of the Panchayats Act. 11. The learned Counsel for the petitioner placed reliance on the following decisions:— 11.1 Reliance is placed on the decision of the Apex Court in Barium Chemicals Ltd. vs. Company Law Board, AIR 1967 SC 295 in support of the proposition that though an order passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala fides, dishonesty or corrupt purpose. Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the power, since the authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did not honestly from its opinion or that in forming it, it did not apply its mind to the relevant facts. This decision is also relied in support of the contention that though the formation of opinion by the authority is subjective, but the existence of circumstances relevant to the inference as the sine qua non for action must be demonstrable. 11.2 Reliance is also placed on behalf of the petitioner on the decision in Madhav Rao Scindia Bahadur vs. Union of India, 1971 (1) SCC 85 in support of the contention that the democratic Constitution founded on the Rule of Law does not envisage authority in any instrumentality of the Union reminiscent of autocracy. The power conferred by the Constitution is intended to be exercised in aid of and not to destroy constitutional institutions. The power must be exercised bona fide, and in the larger interest of the people consistently with the provisions of the Constitution. The power is plainly coupled with a duty; a duty to maintain the constitutional institution, the constitutional provisions and the constitutional scheme. 11.3 Reliance is also placed on the decision of the Apex Court in Express Newspapers Pvt. Ltd. vs. Union of India, (1986) 1 SCC 133 , in support of the contentions that misuse of power in bad faith for alien or collateral purpose amounts to mala fide exercise of power. Bad faith means intentional usurpation of power motivated by considerations that are incompatible with the discharge of public responsibility. The principle of ultra vires required statutory powers to be exercise reasonably, in good faith and on correct grounds. The Court assumes that Parliament cannot have intended to authorize unreasonable action which is therefore ultra vires and void. Bad faith means intentional usurpation of power motivated by considerations that are incompatible with the discharge of public responsibility. The principle of ultra vires required statutory powers to be exercise reasonably, in good faith and on correct grounds. The Court assumes that Parliament cannot have intended to authorize unreasonable action which is therefore ultra vires and void. The Court is concerned only with acts of legal power i.e. acts which, if valid, themselves produce legal consequence. The doctrine of ultra vires can cover virtually all situations where statutory power is exercised contrary to some legal principles. Where a public authority is held to have acted for improper motives or irrelevant considerations, or have failed to take account of relevant considerations, its action is ultra vires and void. Fraud on power voids the order if it is not exercise bona fide for the end design. Exercise of power for collateral purpose has similarly been held to be a sufficient reason to strike down the action. It is not necessary that any named officer may be responsible for the act where the validity of action taken by a Government is challenged as mala fide. 12. On the other hand, Mr. K.B. Trivedi, learned Advocate General for the State Government and Mr. P.K. Jani, learned Counsel for Respondent Nos. 4 to 7 have opposed the petition and submitted that the petition is not maintainable for the reliefs sought. It is submitted that the question of terminating the office of a member of a district panchayat can arise only when all the areas forming part of the concerned constituency are excluded from the district panchayat or the taluka panchayat, as the case may be. It is contended by the learned Advocate General that even if one per cent population of the constituency remains within that constituency, the office of the member of the district panchayat representing that constituency cannot be terminated. It is also submitted that the vague principle of substantial reduction cannot be accepted because where should the line then be drawn at 90% or 99% ? It is also submitted that it is not for the Court exercising writ jurisdiction under Article 226 of the Constitution to draw any such line anywhere. It is, therefore, submitted that the State Government has no power or authority to terminate the office of Respondent Nos. It is also submitted that it is not for the Court exercising writ jurisdiction under Article 226 of the Constitution to draw any such line anywhere. It is, therefore, submitted that the State Government has no power or authority to terminate the office of Respondent Nos. 4 to 7 as members of the Surat District Panchayat merely on the ground of reduction, even a substantial reduction in the population or number of voters in the concerned constituency. For instance, when the entire area forming part of Odhav constituency and Vastrapur constituency of the Ahmedabad District Panchayat were excluded from Ahmedabad District and included in the larger urban area of the city of Ahmedabad, the State Government in exercise of the powers under Section 264(1)(ii) of the Gujarat Panchayats Act terminated the office of the two members of the Ahmedabad District Panchayat representing those constituencies as per the details given in the State Government notification dated 12.1.2009. Similarly the State Government terminated the office of 12 members of Choryasi taluka panchayat upon exclusion of the areas of the respective constituencies from out of Choryasi taluka in Surat District upon their forming part of the larger urban areas within the limits of the city of Surat as per the notification dated 20.7.2006. 13. After the hearing was concluded and the matter was reserved for judgment, this Court had sought certain clarifications and therefore, additional affidavit dated 23.9.2009 has been filed by the Additional Secretary to the State Government in the Panchayat Department. Along with the said affidavit, the State Government has produced notification dated 31.12.1991 by which the original Dumas gram panchayat was bifurcated into Dumas gram panchayat and Kandi Falia gram panchayat. The State Government has also produced — (i) corrigendum notification dated 6.2.2007 issued by the Collector, Surat making it clear that since Kadi Falia gram panchayat was not included in the Government notification dated 20.7.2006, the charge of Kandi Falia gram panchayat was returned by the Surat Municipal Corporation on 18.11.2006 and therefore, office of Sarpanch was again required to be reserved, and (ii) notification dated 27.2.2007 declaring result of fresh elections to Kandi Falia gram panchayat. 14. 14. Petitioner No. 1 has thereafter filed rejoinder affidavit dated 29.9.2009 reiterating the reference to the relevant provisions of the Constitution of India, the BPMC Act and the Gujarat Panchayats Act and the contention that the concerned respondents are residing in areas which now form part of the Surat Municipal Corporation and, therefore, they have ceased to be voters in the Surat District Panchayat constituencies and have thus lost nexus with the constituencies which they once represented prior to issuance of the notification dated 20.6.2006. Discussion 15. Section 16 of the Gujarat Panchayats Act, 1963 (hereinafter referred to as “the Panchayats Act”) provides for electoral divisions. While Sub-sections (1) and (2) thereof deal with gram panchayats and taluka panchayats, Sub-section (3) dealing with district panchayats reads as under :— “(3) For the purposes of elections of members to a district panchayat, a district shall be divided by the State Election Commission into as many single member territorial constituencies as the total number of elected members specified in respect of the district panchayat of that district in Sub-section (4) of Section 11 and in such manner that the population of all the territorial constituencies is as far as practicable the same and each territorial constituency is so delimited as to include therein as far as practicable whole territorial constituencies of a taluka; and one member shall be elected from each such constituency.” Sub-section (4) of Section 11 reads as under :— “(4) A district panchayat of a district having population not exceeding four lakhs shall consist of seventeen members and in case of a district panchayat where the population of the district exceeds four lakhs, then for every one lakh or part thereof in excess of four lakhs, the said number of seventeen shall be increased by two.” Sub-section (4) of Section 16 provides that at any time, but at least two months before the expiry of the duration of a panchayat, it shall be lawful for the State Election Commission to alter, for reasons to be recorded in writing, the limits of any territorial constituency of the concerned district for the purpose of general election in relation to a district panchayat. Similar powers are conferred for alteration of the limits of a constituency of a taluka panchayat or any ward of a village panchayat. 16. Similar powers are conferred for alteration of the limits of a constituency of a taluka panchayat or any ward of a village panchayat. 16. Before proceeding further, it will be necessary to consider two decisions of the Apex Court having some bearing on the controversy involved in the present petition. 16.1 In Re : Presidential Election, (1974) 2 SCC 33 , the Apex Court was required to interpret the provisions of the Constitution relating to election of the President of India under Article 54 by an electoral college comprising elected members of both the Houses of Parliament and elected members of Legislative Assemblies of the States. Article 55(1) states that “as far as practicable” there shall be uniformity in the scale of representation of different States at the election of the President. Article 55 also indicates the methods of calculating as to who many votes an elected member of the electoral college can cast at Presidential election. At the relevant time, the Legislative Assembly of the State of Gujarat was dissolved. In view of the above provisions of Articles 54 and 55, it was contended that the elections to the office of the President of India could not be allowed to be held in absence of the Legislative Assembly of the State of Gujarat. The Apex Court held in Para 26 of the judgment that the words “as far as practicable” indicate that in practice the scale of representation may not be uniform. 16.2 In R.C. Poudyal vs. Union of India, 1994 Suppl. (1) SCC 324, the Apex Court considered the Rule “one person one vote” in the context of the provisions of Clause (2) of Article 170 providing for division of each State into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the State. After considering several decisions of the American Supreme Court and various treatises, the Apex Court made the following pertinent observations :— “108. This provision incorporates the rule of ‘fair and effective representation’. Though the rule ‘one person one vote’ is a broad principle of democracy, it is more a declaration of a political ideal than a mandate for enforcement with arithmetical accuracy. These are the usual problems that arise in the delimitation of constituencies. This provision incorporates the rule of ‘fair and effective representation’. Though the rule ‘one person one vote’ is a broad principle of democracy, it is more a declaration of a political ideal than a mandate for enforcement with arithmetical accuracy. These are the usual problems that arise in the delimitation of constituencies. In what is called ‘First-past-the-post’ system of elections, the variations in the size and in the voting populations of different constituencies, detract from a strict achievement of this ideal. The system has the merit of preponderance of “decisiveness” over “representativeness”. [emphasis supplied] In Para 113, the Apex Court further observed that the problem of equality of the value of votes is further complicated by a progressive rural depopulation and increasing urbanization. In Para 119, the Apex Court also made the following observations :— “119. It is true that the right to vote is central to the right of participation in the democratic process. However, there is less consensus amongst theorists on the propriety of judicial activism in the voting area. In India, the Delimitation Laws made under Article 327 of the Constitution of India, are immune from the judicial test of their validity and the process of allotment of seats and constituencies is not liable to be called in question in any court by virtue of Article 329(a) of the Constitution.” 17. In view of the above decisions of the Apex Court, it is not possible to test the notification dated 20.7.2006 on the touch stone of “one person one vote” rule, more particularly when we find from the affidavit in reply dated 17.4.2009 on behalf of the State Government that in view of the fact that the next elections of 24 District Panchayats in the State are to take place in December, 2010, the State Election authorities have already started the exercise of delimitation. The above exercise of delimitation appears to have been started under Sub-section (4) of Section 16 of the Panchayats Act which reads as under :— “(4) At any time not later than two months before the date of the expiry of the duration of a panchayat under Section 13 and in the case of a panchayat which is to be constituted or reconstituted under the provisions of this Act otherwise than on the expiry of its duration under Section 13, at any such time before it is to be constituted or, as the case may be reconstituted, it shall be lawful for State Election Commission— (a) ... ... ... ... ... ... (b) to alter for reasons to be recorded in writing, the limits of any territorial constituency of the concerned taluka or district, for the purpose of general election in relation to a taluka or district panchayat.” Hence, the petitioner’s grievance that the members elected from the four specified constituencies of Choryasi taluka of Surat District Panchayat continue to hold their office in spite of substantial portion of the territorial limits of those constituencies having been excluded from the limits of the Surat District Panchayat - is going to be taken care of by the State Election Commission. 18. In view of the above settled legal position, it is not open to this Court to consider challenge to the notification dated 20.7.2006 and the other connected notifications and orders or to consider the alternative prayer to issue notification under Clause (2) of Article 243-Q of the Constitution read with Section 5 of the BPMC Act for including the remaining village panchayat areas and populations specified in Columns 6.2, 6.3 and 6.4 of the statements annexed to the reply affidavit of the State Government within the limits of Surat Municipal Corporation. Consequently, it is also not possible to entertain the prayer for issuance of a writ of certiorari or any other writ quashing and setting aside the notification containing list of voters of Surat District Panchayat and for their respective constituencies. Similarly, the prayer for challenge to the notification pursuant to the letter dated 27.6.2006 of the District Development Officer for excluding Kandi Falia gram panchayat from the Government notification dated 20.7.2006 also cannot be entertained. 19. Now we come to the main relief prayed for by the petitioners, i.e. for a declaration that Respondent Nos. Similarly, the prayer for challenge to the notification pursuant to the letter dated 27.6.2006 of the District Development Officer for excluding Kandi Falia gram panchayat from the Government notification dated 20.7.2006 also cannot be entertained. 19. Now we come to the main relief prayed for by the petitioners, i.e. for a declaration that Respondent Nos. 4 to 7 have ceased to be members of the Surat District Panchayat on and from 20.7.2006. The relevant portion of Section 264(1) of the Panchayats Act reads as under :— “264. Consequences of alteration of limits of district or taluka,—(1) When, on account of constitution of a new district or taluka, or for any other reason, the limits of a district/taluka are, during the term of office of the members of the district/taluka panchayat, altered so as to— (a) include any area therein, or (b) exclude any area therefrom, the State Government may, notwithstanding anything contained in this Act or any other law for the time being in force, by order published in the Official Gazette, provide for all or any of the following matters, namely— (i) in a case falling under Clause (a), the interim increase in the number of members of the district/taluka panchayat and the appointment of such additional members from amongst the members of panchayat who are elected from the area so included; (ii) in a case falling under Clause (b), the interim reduction in the number of members of the district/taluka panchayat and the termination of office of the elected members of the district/taluka panchayat who are elected as such members from the area so excluded; (iii) the term for which additional members so appointed shall hold office and the manner of filling casual vacancies of such members; (iv) allocation of any officer or servant of the panchayat affected by the alteration of limits; (v) the removal of any difficulty which may arise on account of any change referred to in Clause (a) or Clause (b). (2) The district/taluka panchayat, if any, functioning immediately before the alteration of the limits shall, subject to the addition or exclusion of members under sub-section (1), continue to function until the expiry of its duration under this Act and on such expiry it shall be reconstituted in the manner provided in this Act. (2) The district/taluka panchayat, if any, functioning immediately before the alteration of the limits shall, subject to the addition or exclusion of members under sub-section (1), continue to function until the expiry of its duration under this Act and on such expiry it shall be reconstituted in the manner provided in this Act. [emphasis supplied] Sub-section (3) provides for the consequence of the alteration of the limits of any district or taluka panchayat in respect of panchayat properties, rights, assets and liabilities of the concerned district/taluka panchayat which is affected by such alteration of the limits. 20. Sub-section (1)(b) of Section 3-A of the Bombay Provincial Municipal corporations Act, 1949 provides for consequences on alteration of limits of city where by a notification under Article 243-Q(2) of the Constitution of India, any area is included within the limits of a city, all appointments, notifications, etc. made/issued under the BPMC Act by the concerned Municipal Corporation of the city shall extend to and be in force in the area so included from the date on which the area is included in the city. It is further provided in the said Section that where there are in force in the area included in a city, any appointments, notifications, etc. immediately before such area is included in the city either corresponding to or inconsistent with the appointments, notifications, etc. extended and brought into force as indicated hereinabove, such appointment, notifications, etc. shall stand superseded. It is further provided in the said Section that where there are in force in the area included in a city, any appointments, notifications, etc. immediately before such area is included in the city either corresponding to or inconsistent with the appointments, notifications, etc. extended and brought into force as indicated hereinabove, such appointment, notifications, etc. shall stand superseded. Sub-section (3) of Section 3A reads as under :— “(3) Where by a notification under Clause (2) of article 243Q of Constitution of India the limits of any City are altered so as to— (a) include any area therein, or (b) exclude any area therefrom, the State Government may, notwithstanding anything contained in this Act or any other law for the time being in force, by order published in the Official Gazette, provide for all or any of the following matters, namely :— (i) in a case falling under Clause (a), the interim increase in the number of Councillors shall be filled by election of additional members from amongst such persons entitled to vote at such election from such area, as the State Government may determine and the term of such councillor shall be for the remainder of the duration of the Corporation; (ii) in a case falling under Clause (b), the removal of councillors, who in the opinion of the State Government shall represent the areas so excluded from the City. (iii) to (vii) ... ... ... ... ... ... ...” Section 5 of the BPMC Act provides that where general election is to be held immediately after the limits of the city are altered, the State Government shall determine the number of wards in to which the city shall be divided and the number of councilors to be elected to the Corporation and the State Election Commission shall carry out the determination of the boundaries of the wards and the allocation of seats. 21. On the basis of the above provisions in the Panchayats Act as well as the BPMC Act, Mr Parmar, learned Counsel for the petitioner has vehemently submitted that all the Panchayat institutions in the 27 villages excluded from the Surat District Panchayat and included within the limits of the Surat Municipal Corporation by Government notification dated 20.7.2006 got abolished and, therefore, Respondent Nos. 4 to 7 cannot continue as members of the Surat District Panchayat. 22. 4 to 7 cannot continue as members of the Surat District Panchayat. 22. We are unable to accept the submission based on the provisions of the BPMC Act. Section 5 merely provides for general elections on alteration of limits of the concerned Municipal Corporation - Surat Municipal Corporation in the instant case. Sub-section (1) of Section 3-A nowhere deals with or provides for, and cannot provide for, consequences on the members of the District Panchayat, a part of whose constituency is included in the limits of the Municipal Corporation. Sub-section (3) of Section 3-A provides that where any area is included within the limits of the concerned city, the State Government may provide for the interim increase in the number of councillors to be filled by election of additional members from amongst such persons entitled to vote at such election from such area, as the Government may determine and the term of such councilllor shall be for the remainder of the duration of the Corporation. We do not see how this provision can compel the State Government to terminate the office of a member of the district panchayat when a part of the constituency from which the concerned member was elected as a member of the district panchayat continues to remain within the limits of the district panchayat. 23. The next question that arises for consideration is whether the power under sub-clause (ii) of sub-section (1) of Section 264 may be, or must be, exercised and the office of an elected member of the district panchayat may be, or must be, terminated when the constituency represented by an elected member continues, but its area, population and number of voters is substantially reduced i.e. the reduction is as much as 98% or 95%, more particularly when the elected member was from a village which is now excluded from the limits of district panchayat and is not a voter in the list of voters for the village/s which remain as his constituency. 24. As regards the contention that the concerned respondents are residing in areas which now form part of the Surat Municipal Corporation limits and, therefore, they have ceased to be voters of the Surat District Panchayat constituencies, the contention overlooks the scheme of the provisions of Sections 16 to 23 of the Gujarat Panchayats Act, 1993. 24. As regards the contention that the concerned respondents are residing in areas which now form part of the Surat Municipal Corporation limits and, therefore, they have ceased to be voters of the Surat District Panchayat constituencies, the contention overlooks the scheme of the provisions of Sections 16 to 23 of the Gujarat Panchayats Act, 1993. Section 16(3) provides for division of a district into territorial constituencies for the purposes of election of members to a district panchayat. Section 17 provides for preparation of list of voters for every electoral division in accordance with the provisions of Sections 18 to 22 under the superintendence, direction and control of the State Election Commission. Section 23 provides the period for which a list of voters shall remain in operation. The Section provides that the list of voters for any electoral division which has been published and has come into operation under sub-section (7) of Section 20 shall remain in operation until the new list of voters for that electoral division is prepared, published and comes into operation, except where the State Election Commission, after consultation with the State Government, directs that such list for any electoral division may be revised before any bye-election is held to fill a casual vacancy in a seat allotted to that electoral division. In view of the above provisions, the list of voters for the concerned constituency of the Surat District Panchayat which was prepared for election of members of the Surat District Panchayat in the year 2005 will continue to remain in operation until the next list of voters for that electoral division is prepared, published and comes into operation in 2010. It cannot, therefore, be said that Respondent Nos. 4 to 8 do not remain in the lists of voters for the concerned constituencies of the Surat District Panchayat. The question about their entitlement to be registered as voters in the lists of voters for the concerned electoral divisions will obviously now be considered before the elections to the district panchayat to be held in 2010. 25. Of course, the undisputed figures of population and number of voters for Amroli constituency and Bamroli constituency represented by Respondent Nos. 4 to 5 are an eye opener. 25. Of course, the undisputed figures of population and number of voters for Amroli constituency and Bamroli constituency represented by Respondent Nos. 4 to 5 are an eye opener. In Amroli constituency represented by Respondent No. 4, out of the population of 89,814 with 53,904 voters, as many as 85,071 people and 51,528 voters i.e. 95% have been included within the limits of the Surat Municipal Corporation and only remaining 5% (five per cent) people/voters continue in the constituency of the Surat District Panchayat. Similarly, in Bamroli constituency represented by Respondent No. 5, out of the population of 80,606 with 53,141 voters, as many as 79,136 people and 52,463 voters have been included within the limits of the Surat Municipal Corporation and population of only 1,470 with 678 voters i.e. only 2% (two per cent) continue to be in Bamroli constituency of the Surat District Panchayat. 26. We may at this stage refer to one more dimension of the controversy pertaining to Bamroli constituency in Choryasi taluka. It transpires from the statements produced by the petitioners as well as the respondent - State Government that prior to 20.7.2006, the said constituency had 16 villages including Dumas. Prior to 20.7.2006 revenue village of Dumas included areas known as Dumas and Kandi Falia. The petitioners’ case is that upon issuance of notification dated 20.7.2006, all the areas of village Dumas including Kandi Falia were taken over by the Surat Municipal Corporation upon declaration of Dumas as a larger urban area being included within the limits of the Surat Municipal Corporation. However, in order to ensure that Respondent No. 5 whose residence now falls within the limits of Surat Municipal Corporation continues to be a member of the Surat District Panchayat, the respondents have arbitrarily excluded the area of Kandi Falia from village Dumas and formed Kandi Falia as a separate gram panchayat having population of only 1470 people and 678 voters. 27. The defence of the respondents is that the revenue village of Dumas had two gram panchayats - Dumas gram panchayat and Kandi Falia gram panchayat. The State Government notification dated 31.12.1991 issued under Section 9(2) of the Gujarat Panchayats Act (Annexure 5 to the reply affidavit dated 23.9.2009) makes it clear that the then existing Dumas gram panchayat was bifurcated into two gram panchayats - (i) Dumas gram panchayat, and (ii) Kandi Falia gram panchayat. The State Government notification dated 31.12.1991 issued under Section 9(2) of the Gujarat Panchayats Act (Annexure 5 to the reply affidavit dated 23.9.2009) makes it clear that the then existing Dumas gram panchayat was bifurcated into two gram panchayats - (i) Dumas gram panchayat, and (ii) Kandi Falia gram panchayat. Kandi Falia covers Kandi Falia peta para. The notification dated 20.7.2006 specifically excluded the village panchayat of Dumas from the Surat District Panchayat and that no notification was issued for excluding the area of Kandi Falia gram panchayat from the limits of the Surat District Panchayat or including Kandi Falia gram panchayat within the limits of the city of Surat. Therefore, Kandi Falia gram panchayat still remains within Bamroli constituency of Choryasi taluka panchayat in Surat District Panchayat. It is further stated in Para 10 of the reply affidavit dated 17.4.2009 on behalf of the State Government as under :— “10. I respectfully state that as regards Kandi Falia village, it is pertinent to note that the charge of the said village was inadvertently taken over by Surat Municipal Corporation, with the result its village Panchayat came to be dissolved. However, later on, on realization of the said mistake, Surat Municipal Corporation handed over the said charge way back on 18.11.2006, whereupon necessary Corrigendum –Notification came to be issued by the Collector, Surat, on 6.2.2007, which was thereafter followed by fresh election of the village Panchayat on 27.2.2007. However, I deny that there is any arbitrariness involved in the said exercise. I further deny that for any political reason or to gain and maintain any majority of members of Surat District Panchayat, any action is taken in the matter as alleged or that for that purpose, no notification under the provisions of BLR Code has been issued qua notification dated 20.7.2006 issued under provisions of BPMC Act.” 28. In view of the fact that what the Government notification dated 20.7.2006 had excluded was the area of Dumas gram panchayat and not the territorial limits of the revenue village of Dumas, it is not possible to accept the petitioner’s contention that the area of Kandi Falia gram panchayat was also included within the limits of the city of Surat. In view of the fact that what the Government notification dated 20.7.2006 had excluded was the area of Dumas gram panchayat and not the territorial limits of the revenue village of Dumas, it is not possible to accept the petitioner’s contention that the area of Kandi Falia gram panchayat was also included within the limits of the city of Surat. It appears that because of its population and the fact that it was a part of the revenue village Dumas, the charge of Kandi Falia area was also taken over by the Municipal Commissioner of the Surat Municipal Corporation, but as pointed out in Para 10 of the reply affidavit on behalf of the State Government, the charge of Kandi Falia was returned over by the Surat Municipal Corporation on 18.11.2006 and the necessary corrigendum was issued by the Collector on 6.2.2007. Thereafter, fresh elections were held to Kandi Falia gram panchayat on 27.2.2007. Hence, it is not possible to accept the petitioner’s contention that Kandi Falia gram panchayat was excluded from the Surat District Panchayat by notification dated 20.7.2006. It appears that Kandi Falia had a separate gram panchayat before 20.7.2007 and that it has a separate gram panchayat now also to which elections were held in February, 2007. 29. We have also considered the petitioners’ contention that in view of the geographical location of Kandi Falia and Bharthana, the areas of these gram panchayats would also have been excluded from the Surat District Panchayat and included within the urban limits of the Surat Municipal Corporation by any reasonable person, and that their non-inclusion in the Surat city limits is absolutely perverse and malafide. We must state that nothing is brought on record by the respondents to show why Kandi Falia and Bharthana villages were not excluded from the Surat District Panchayat and not included within the larger urban area of city of Surat. Having seen the map of the concerned areas produced by the State Government with their affidavit dated 23.9.2009, while nothing much can be said against non-inclusion of Bharthana Village in Surat city limits, it leaves us with a sense of uneasiness as to why the area of Kandi Falia gram panchayat surrounded by Surat city on three sides and the Tapi river on the west is not included within the limits of Surat city 30. The defence of the State Government is that the State Election Commission has already started the delimitation exercise for the next election of the Surat District Panchayat to be held one year from now. However, the State Election Commission cannot exercise the power under Article 243-Q(2) of the Constitution for excluding any village area from the District Panchayat or include it within the city limits of an urban area. The State Election Commission has to carry out the delimitation exercise on the basis of the areas notified by the Governor as urban areas, rural areas or transitional areas (i.e. semi urban areas) under Article 243-Q(2) of the Constitution. 31. However, on account of the fact that a local self Government body in the form of gram panchayat is existing for the Kandi Falia gram panchayat area, in absence of Kandi Falia gram panchayat as a party before us, we do not propose to make any further observations. Sub-section (2) of Section 7 of the Gujarat Panchayats Act reads as under :— “(2) After consultation with the taluka panchayat, the district panchayat and village panchayat concerned (if already constituted), the competent authority may at any time recommend inclusion within or exclusion from any village any local area or otherwise alteration of limits of any village, or recommend cesser of any local area to be a village, to the Governor for exercise of his powers under Clause (G) of Article 243 of the Constitution.” A Full Bench of this Court has explained the scope of consultation with the gram panchayat for exercising the powers under the above provision (vide P.A. Chauhan vs. K.D. Rawat, 2005 (4) GLR 2932). 32. In view of the above discussion, it is required that before the State Election Commission completes the delimitation exercise for the next election to the Surat District Panchayat, the State Government will have to consider, after following the procedure laid down in the Gujarat Panchayats Act, 1993 whether to recommend exclusion of the Kandi Falia gram panchayat area from the limits of the Surat District Panchayat and its inclusion within the city limits of Surat. The State Government will accordingly take the necessary action in accordance with law after considering the observations made hereinabove, within three months from the date of receipt of this judgment. 33. The State Government will accordingly take the necessary action in accordance with law after considering the observations made hereinabove, within three months from the date of receipt of this judgment. 33. The allegation about malafide exercise of power is sought to be supported with reference to removal of Smt. Gitaben Jagdishbhai Rabari from the office of member of Surat District Panchayat. It is true that the resolution of the Surat District Panchayat passed on 3.1.2009 was by majority and that some members of the District Panchayat had opposed the proposal of her removal from membership of the District Panchayat. However, we find that removal of the said member was on the ground of remaining absent from four consecutive meetings of the Surat District Panchayat under Section 86(1)(b) of the Gujarat Panchayats Act. The said resolution of the District Panchayat also refers to dismissal of Special Civil Application No. 16071 of 2008 on 31.12.2008 and thereafter, the resolution was passed by the District Panchayat on 3.1.2009. Hence, we do not find any substance in the contention that notification impugned in this petition was used for mala fide purpose of removal of a member of the District Panchayat. 34. Our attention is invited by the respondents to the fact that when all the villages forming part of Odhav constituency and Vastrapur constituency were excluded from the limits of the Ahmedabad District Panchayat and included in the large urban area of the Ahmedabad city, the State Government exercised the powers under Section 264(1)(ii) of the Panchayats Act. Similarly the power was exercised for terminating 12 members of the Choryasi taluka panchayat in Surat District consequent upon inclusion of all the areas of the 12 constituencies from out of the Choryasi taluka and they are forming part of the larger urban areas within the limits of the city of Surat. 35. Coming to the question raised in the petition as already posed in Para 24 hereinabove, a careful reading of Section 264(1)(ii) indicates that the State Government can terminate the office of a member of a district panchayat only if all the villages with the entire population of a particular constituency represented by that member go out of the concerned district panchayat. Respondent No. 4 was elected as a member of the Surat District Panchayat from Amroli constituency then comprising of six villages. Respondent No. 4 was elected as a member of the Surat District Panchayat from Amroli constituency then comprising of six villages. Five of those villages came to be excluded from the Surat District Panchayat on and with effect from 20.7.2006. When the sixth village Bharthana continues to be a part of the Surat District Panchayat, can it be said that the area from which Respondent No. 4 was elected as a member of the Surat District Panchayat has been excluded from the limits of the Surat District Panchayat ? In other words can it be said whether Respondent No. 4 was elected only from the five villages which are subsequently excluded ? Since the answer to the above questions would be in the negative, it is not possible to accept the petitioner’s contention that the office of Respondent No. 4 as a member of the Surat District Panchayat is required to be terminated. For the same reasons, no direction can be issued to the State Government to terminate the office of Respondent Nos. 5, 6 and 7 as members of the Surat District Panchayat under Section 264(1)(ii) of the Panchayats Act. 36. It is true that the population and voters represented by Respondent No. 4 and 5 is hardly 5% or 2% of the population and the voters whom they represented at the time of the election in October, 2005. But accepting the petitioner’s contentions and granting the petitioner’s prayers would not only require this Court to rewrite the language of Section 264(1)(ii), but also require this Court to exercise the powers of the Governor under Article 243-Q(2) and would also result into dissolving two gram panchayats - Bharthana gram panchayat and Kandi Falia gram panchayat - without their having been joined as party respondents or without their getting any opportunity to be heard on the subject. Since this cannot be done in exercise of the power of judicial review, we are unable to grant the reliefs prayed for in prayer No. (4). The other reliefs praying for a declaration that Respondent No. 4 has also ceased to be Chairman of the Surat District Panchayat Education Committee and challenging the result of election held on 22.1.2008 electing Respondent No. 4 as the President of the Surat District Panchayat cannot be granted because the said prayers are merely consequential to the main prayer for declaration that Respondent Nos. 4 to 7 have ceased to be members of the Surat District Panchayat on and from 20.7.2006. 37. For the reasons aforesaid, the reliefs prayed for by the petitioners cannot be granted, but the petition is disposed of subject to the observations made in Paras 29 to 31 and the direction given in Para 32 hereinabove. Subject to the aforesaid observations and direction, rule is discharged.