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Judgment
,,,,
Madhav J. Jamdar, J",,,,
The petitioners by the present writ petition have challenged the order dated 27.10.2020 passed by the respondent no.3-Collector, Pune. By said",,,,
order, the respondent no.3 allowed the objection raised by the respondent no.6 for including an area of named as ‘Sara City’ in ward no.1 which",,,,
earlier was included in ward nos.5 and 6 of the Kharabwadi Village Panchayat, Taluka Khed, District Pune.",,,,
We have heard Mrs. Karnik on behalf of the petitioner, learned AGP for the respondent nos. 1 to 5 and Mr. Vaibhav Ugale, learned counsel",,,,
appearing for the respondent no.6.,,,,
Mrs. Karnik, learned counsel for the petitioner submitted that the impugned order passed is in contravention of the circular dated 29.11.2019 issued",,,,
by the State Election Commission. She pointed out Clause Nos. 5(B)(i), (ii), (v) and (vi) of the said circular. She pointed out the objection filed by the",,,,
respondent no.6 and disputed that the Sara City came into existence in the year 2015. She pointed out tax receipts issued by Gram Panchayat of,,,,
Kharabwadi for the year 2011-2012, 2012-2013 and 2013-2014 for disputing the same. Mrs. Karnik, pointed out Section 10(1)(b) in particular proviso",,,,
to the same of the Maharashtra Village Panchayat Act, 1959 (hereinafter referred to as ‘said Act’) and Rule 3 of the Bombay Village",,,,
Panchayats (Number of Members, Divisions into Wards and Reservation of Seats) Rules, 1966 (hereinafter referred to as ‘the Rules’) and",,,,
contended that the impugned order is contrary to the provisions of the said Act and the Rules.,,,,
On the other hand, learned AGP submitted that Sara City was included in ward no.1 to maintain geographical continuity. He submitted that while",,,,
doing so, the population of the respective areas are also taken into consideration. The learned AGP relied on the observations in the Report of",,,,
Tehsildar submitted to the Collector. He relied on the local inspection carried out by the Talathi and report submitted by him.,,,,
The learned counsel for the respondent no.6 submitted that the Sara City was not in existence upto earlier election of 2015. He submitted that if the,,,,
population of the Sara City is included in ward nos. 5 and 6, the population will be excessive for those wards and therefore the decision to transfer the",,,,
said area to ward no.1 was taken. He also relied on the report of Talathi, the Circle Officer and the Sub-Divisional Officer. He submitted that by",,,,
considering the geographical basis and population, the impugned decision is taken.",,,,
Before considering the rival contentions, it is important to note the relevant provisions. Section 10(1)(b) of the said Act provides that each village",,,,
shall be divided into such number of wards, and the number of members of a panchayat to be elected from each ward, shall be such, as may be",,,,
determined in the prescribed manner by the State Election Commission or an officer authorized by it. It further provides that the panchayat area shall,,,,
be divided into wards in such manner that, the ratio between the population of each ward and the number of seats allotted to it shall, so far as",,,,
practicable, be the same throughout the panchayat area.",,,,
Rule 3(1) of the Rules provides that subject to the provisions of sub-Section 1 of Section 10, a village shall be divided into wards and number of",,,,
members to be elected from each ward shall be fixed in accordance with the principles enumerated in the said Rule. The said principles inter-alia,,,,
provides that a village shall be divided into suitable number of wards so, however, that the ratio between the number of members to be elected from",,,,
each ward and the population thereof shall, as far as practicable, be the same throughout all the wards in a village. It further provides that the",,,,
geographical situation of village shall be taken into consideration and geographical continuity of the area shall, as far as practicable, be followed.",,,,
Section 10A of the said Act particularly sub-Section 1 provides that the superintendence, direction and control of the preparation of the electoral",,,,
rolls for, and the conduct of all elections to the panchayats shall vest in the State Election Commission. Sub-Section 4 of Section 10A provides that",,,,
notwithstanding anything contained in the Act and the rules, the Commission may issue such special or general orders or directions which may not be",,,,
inconsistent with the provisions of the Act for fair and free elections. By exercising powers under Section 10A (4), the State Election Commission has",,,,
issued circular dated 29.11.2019. The said circular inter-alia provides that for the purposes of formation of ward census of 2011 be taken into,,,,
consideration. It is further provided that while forming ward, the population may increase by 10% or decrease by 10%. However, it is further provided",,,,
that in exceptional circumstances, the said requirement can be relaxed. It is further provided that geographical area should be taken into consideration",,,,
and the care should be taken, so that localities should not be divided and the manner in which the citizens travel that also should be taken into",,,,
consideration.,,,,
In the light of above legal provision, the factual position on record shows that the Sara City was not in existence in 2011, although it is contended by",,,,
Mrs. Karnik that on the basis of tax receipts Sara City was in existence atleast from 2011. For raising the said contention she has merely relied on tax,,,,
receipts issued to one individual. It is rightly contended by the respondents that she has not produced electricity bills or other documents showing that,,,,
people were actually residing in Sara City since the year 2017. The State Government and the respondent no. 6 has specifically contended that the,,,,
Sara City came into existence after 2015 election. In any case whether Sara City was in existence in 2011 or came into existence after 2015 is,,,,
disputed question of fact and therefore this Court cannot go into that aspect in the writ jurisdiction.,,,,
The map which the petitioner had produced at page 25 as well as the maps which are produced at page 24 and page 28 clearly shows that the,,,,
Sara City is geographically adjoining the ward no.1. It further shows that ward nos.1 and 6 are adjoining each other as well as ward no.5 is also,,,,
adjoining ward no.1. The report/opinion of Tehsildar submitted to the Collector shows that in the year 2015 for ward nos. 1, 2, 3, 4, 5 and 6, members",,,,
to be elected were 3, 2, 3, 3, 3, and 3 respectively and for the year 2020 for ward nos. 1, 2, 3, 4, 5 and 6, the members proposed were 3, 3, 2, 3, 3 and",,,,
3 respectively. It is mentioned that for every member the average population is 541 and wardwise respective population is ward no.1 - 1624, ward",,,,
no.2 - 1620, ward no.3-1080, ward no. 4-1632, ward no. 5-1627 and ward no.6 - 1618. It is further mentioned that by taking into consideration",,,,
geographical position and the local situation, it may be advisable to delete Sara City from ward nos. 5 and 6 and it can be included in ward no.1.",,,,
The Sub-Divisional Officer while submitting his opinion stated that the residents of Sara City are not the original local residents and therefore Sara,,,,
City can be included in ward no.1. Mrs. Karnik, is right in submitting that who is the original local resident is totally irrelevant for the purposes of",,,,
formation of ward as per the provisions of the said Act and the Rules and the circular issued by the State Election Commission. The said criteria of,,,,
original local population is contrary to the provisions of the Act, the Rules and the circular as setout hereinabove.",,,,
However, we find that the impugned order has been passed by taking into consideration several aspects. The maps clearly shows that ward nos.1,",,,,
5 and 6 are adjoining and Sara City can be conveniently included in ward no.1. It is true that the State Election Commission has in the circular stated,,,,
that census of 2011 be taken into consideration for the purpose of ward formation. However, proviso to sub-Section 10(1) (b) specifically provides that",,,,
the panchayat area shall be divided into wards in such manner that the ratio between the population of each ward and the number of seats allotted to it,,,,
shall, so far as practicable, be the same throughout the panchayat area. Even rule 3(1) of the said Rules provides that a village shall be divided into",,,,
suitable number of wards and number of members to be elected from each ward shall be fixed so that the ratio between the number of members to be,,,,
elected from each ward and the population thereof shall, as far as practicable, be the same throughout all the wards in a village. Although, circular",,,,
Draft Ward Formation,,,Final Ward Formation,
Sr.
No.",Ward No.,Population,Ward No.,Population
1.,1,2650,1,4150
2.,2,3950,2,3950
3.,3,3250,3,3250
4.,4,4200,4,4200
5.,5,4250,5,4050
6.,6,5400,6,4100
,Total,23700,,23700