Wanchoo, C.J.
1. This is an application by Bhopalsingh under Article 226 of the Constitution and arises in the following circumstances.
2. The applicant is resident of village Gothra in Tehsil Degana and is eligible to contest the election for the office of Panch and Sarpanch of Degana Tehsil Panchavat. The Sarpanch and Panchas of the Tehsil Panchayats are elected under Section 58(2) of the Rajasthan Panchayat Act, 1953 (Act No. XXI of 1953), hereinafter called the Act. by an electoral col-lege consisting of Sarpanchas and Panchas of all the Panchayats in the Tehsil.
Twenty-nine Panchayats were notified for this purpose as falling within Degana Tehsil whose Panchas and Sarpanchas were entitled to form an electoral college for electing the Tehsil Panchayat of Degana. The applicant wanted to stand for the Tehsil Panchayat Deeana and, therefore, looked into the list of voters who would form electoral college for the Tehsil Panchayat. He says that he then found certain defects and his contention is that in view of those defects, this Court should declare Section 5 of the Act invalid and stay election proceedings relating to Degana Tehsil Panchayat till the defects are remedied and the law amended.
3. The first defect, according to the applicant, is that there was no notification by the Government as required by Section 58 (1) of the Act establishing the Tehsil Panchayat. The second defect which he noticed was that Section 5 of the Act, which gave power to the Chief Panchayat Officer to divide each Panchayat circle into Wards and fix the cumber of Panchas to be elected from each ward, conferred such wide and arbitrary powers on the Panchayat Officer that he was able to abuse that power in various ways in delimiting wards in the Panchayat circles of Degana Tehsil.
The applicant contends that this arbitrari-ness on the part of the Chief Panchayat Officer in delimiting the Panchayats was so great that it amounted to denying equal protection of the law guaranteed under Article 14 of the Constitution and also amounted to discrimination forbidden under Article 15. He, therefore, submits that Section 5 of the Act which can permit such abuses should be struck down as violating Arts. 14 and 15 of the Constitution.
4. The abuses which the applicant has pointed out may now be briefly summarised as below:
1. The Minister-in-charge of the Department at the time the wards were delimited was Shri Kurnbharam Arya, a Jat, and in consequence, the power of delimiting wards, which vested in the Chief Panchavat Officer, was abused, presumably under the influence of the Minister in such a way that wherever possible, the Jat -community was given over-representation in the Panchayats as against non-Jats. The applicant has given examples of this abuse with which we shall deal at the proper place.
2. Further, in order to carry out the same idea of giving over-representation to the Jats, Panchayat circles were so formed as to give domination to the Jat community so much so that with this idea in view, villages which were separated by a distance of many miles were added on to certain Panchayats and the principle of a compact contiguous area for a Panchayat was given the go-by. The applicant has given examples of this also with which we shall deal later.
3. Still with the same idea in mind, namely giving over-representation to the Jats, wards were framed on the basis of caste and members of whole castes were removed from one ward to another in order to give advantage to Jats. Examples of these kinds of Panchayats have also been given and we shall deal with them later.
4. Again, in order to give over-representation to Jats, wards in Panchayat circles were so framed that for the same number of population where the area was predominantly Jat, more members were allotted than in the area where the population was non-fat. Examples of this have also been given and we shall consider them at the proper stage.
5. Consequently, it is urged that as Section 5 of the Act is capable of such abuse, it should be struck down on the ground that it violates Arts. 14 and 15 of the Constitution, particularly as no rules were framed for guiding the discretion of the Chief Panchayat Officer in the delimitation of wards. The applicant, therefore, prays that Section 5 of the Act mav ho struck down and all the Panchavats established along with the delimitation of wards in them be declared illegal an'd fresh Panchayat circles be formed on proper principles to be laid down inrules to be framed for the purpose. Finally, he prays that the election of the Tehsil Panchayat pegana should be stayed till all the above has been carried out.
6. The application has been opposed on behalf of the State. They say that a notification, as required by Section 58, has been issued establishing the Tehsil Panchayat Degana and the number of that notification and the page of the Rajpatra where it appears have been given. The State has also denied that Panchayat Circles were established and wards were delimited in Degana Tehsil with the idea of giving over-representation to one community.
It is stated that the constituencies were purely territorial and there was no question of violating the provisions of Arts. 14 and 15 of the Constitution. Section 5 of the Act was defended on the ground that discretion had to be left to the Chief Panchayat Officer to form wards and that the wards were formed with the idea of giving representation to different areas at the rate of one member for a certain number of population and that this number did not vary much between ward and ward.
As to the specific instances, given by the applicant, of favouritism to the Jat community, the State merelv denied the allegations and no attempt was made to show that the figures given by the applicant were incorrect. When we asked the learned Deputy Government Advocate why nothing was said about the figures given by the applicant, he said that the State was Dot in a position to admit or deny the figures given by the applicant as the caste of a person was not entered in the Census of 1951.
7. The first question, therefore, that falls for consideration is whether Section 58 (1) of the Act has been complied with. So far as that is concerned, necessary notification is produced and we must overrule the contention of the ap-plicant that elections were being held to the Tehsil Panchayat Degana without issuing a notification as required by Section 58 (1).
8. Let us now turn to the abuses which the applicant alleges, have taken place in constituting Panchayats and delimiting wards in Degana Tehsil. Before we do so we should like to state that the scheme of the Act is that the State Government first notifies in the Rajasthan Gazette the establishment of a Panchayat for a village or group of villages under Section 3 of the Act.
Then comes Section 4 which gives power to the State Government to fix the number of Panchas for each Panchayat and this number varies from 5 to 15. Though there is nothing In the section or rules which lays down how the State Government is to fix the exact strength of a Panchayat between these limits, we take it that the legislature must have an idea in its mind that all Panchavat circles mav not have equal population. Therefore, it fixed a flexible limit from 5 to 15 as the number of Panchas for each Panchayat, leaving it to the State Government to fix the actual number in a particular case, depending upon the population of the Panchayat circle.
Though in the application there was no attack on Section 4, learned counsel for the appli-cant attacked this section also in his arguments on the ground that it was left entirely to the arbitrary will of the State Government to fix the number of Panchas anywhere between 5 and 15 and that the State Government could abuse its power by giving 15 Panchas to a small Panchayat where the population in the Panchayat circle was 500 and 5 to a big Panchayat where} the population was 5,000 in order to give over-representation to, say, the community of the Minister concerned.
It is enough to say that though this abuse is possible, we do not think that the Legislature intended that such abuse should take place. When the legislature fixed this flexible limit, it must have intended that the larger the Panchayat circle in population, the more Panchas should it have and there should be some proportion between the population of the Panchayat circle and the number of Panchas in the Panchayat. This to our mind is so elementary that it would be wrong to hold that Section 4 is illegal because it can be abused, unless it is shown that there was wholesale abuse of this section by the State Government.
9. Then we come to Section 5 which gives power to the Chief Panchayat Officer to divide each Panchuyat circle into such number of wards as may be convenient for the purpose of election and fix the number of Panchas to be elected from each such ward. This section again is very widely worded and can in certain circumstances be abused. But here again, it is to our mind obvious that the legislature intended that the Panchayat Officer will act fairly and divide the Panchavat circle into wards so that more or less equal representation was given to equal number of people in the wards.
For example, if there was a Panchayat circle with a population of 5,000 and the number of Panchas fixed by the Government was 10, the legislature certainly expected that the Panchayat Officer, if he decided to divide that Panchavat circle into 10 wards, will so fix the wards that each ward would have roughly 500 population. We do not mean to say that the population must necessnrily in each ward be exactly the same, but the legislature certainly expected that when wards were delimited, the Chief Panchayat Officer will see that the population in each ward was more or less equal.
It is true that the provisions of Sections 4 and 5 are wide and can be abused. But in the nature of things, such matters have to be left to the discretion of the administration. Perhaps some guidance as to one member per so much of population might well have been provided by the legislature. But even if the legislature did not so provide, we have no doubt that it did expect that those who were carrying out the wide discretionary powers vested in them would act fairly and would have some reasonable criteria for fixing the number of Pan-chas in Panchayat circles and in delimiting wards.
The main criterion must be that there should be so many Panchas for so much population. That some such thing was present inthe mind of the Government also seems to beclear from a reply which the applicant allegeswas given on the floor of the Legislative Assembly when it was said that the idea was thatthere should be one ward for a population of250 to 400 persons electing one Panch. In anycase, the Legislature when it enacted Sections4 and5 and gave wide powers to the administration,expected that the administration would exercisethose powers fairly and on some principles andthat the main basis of fixing the number ofPanchas for each Panchayat circle and in de-limiting wards would be necessarily the population.
10. This being the basic idea behind Sections 4 and 5, let us now turn to the examples given by the applicant to see whether there has been such wide-spread abuse of the wide discretionary powers conferred by Section 5 as to amount to violation of Arts. 14 and 15 of the Constitution. The first charge by the applicant is that out of the 29 Panchayat circles in Tehsil De-gana, wards have been so delimited in a large number as to give over-representation to the Jat community, assuming for this purpose that in predominantly Jat areas, only Jats will be elected. We have to take the figures supplied by the applicant because the State has not been able to give us any other figures on the ground that castes were not mentioned in the Census of 1951. We have not been able to understand why it has not been possible for the State to check up the correctness of the figures given by the applicant, considering that the State was served with notice about a year ago.
11. We shall now briefly consider the charges made in paragraph 8 (a) of the application relating to over-representation of Jats in certain wards in certain Panchayat circles. Chandarun Panchayat circle has 8 villages with a membership of 13 Panchas. The applicant gives the following figures to show how there has been over-representation of Jats in this circle:
1.
GordhiChancha
population
mainly
one
1258
non-jat
member.
2.
Jagarwas
population
mainly
one
698
non-jat
member.
3.
Gorerikarah
population
mainly
one
336
Jat
member.
4.
Meetharia
population
mainly
two
744
jat
members.
12. It is pointed out that one member is given to about 350 or so of the population of the two Jat villages, while one member is given to about 700 in one case and over 1200 population in another in two non-Jat areas. If this is correct, there is certainly over-representation of Jat areas.
13. In Moriana Panchayat something similar seems to have been done in three wards as below:
1.
Banwara Shekhpura
population
mainly
one
740
non- jat
member.
2.
Rabiasni
population
mainly
one
116
jat
member.
3.
Kalyanpura
population
mainly
one
197
jat
member.
14. Thus two members have been provided in Jat areas of about 300 population, while one member has been provided in a non-Jat area of over 700 population.
15. In Harsor the same tale is said to be revealed in some wards as below:
1.
Hatta
population
mainly
one
516
non-Jat
member.
2.
Rajlota
population
mainly
one
666
non-Jat
member.
3.
Bokhll
population
mainly
one
285
Jat
member.
4.
Raliawata
population
mainly
one
266
Jat
member.
5.
Mehrona
population
mainly
two
661
Jat
members.
16. It would be seen that an attempt has been made here to give representation to Jat areas at the rate of roughly one member for 250 to 300 of the population, while in non-Jat areas, it is one member for 500 to 600 of the population. The population of Mehrona is almost the same as that of Rajlota. but Mehrona, because it is a Jat area, is given two members, but Rajlota which is a non-Jat area is given one member.
17. In Panchayat Akeli also, something similar is revealed in three wards as below:
1.
Akeli
population
mainly
two
508
non-Jat
members.
2,
Karasoda
population
mainly
one
135
Jat
member.
3.
Nenas
population
mainly
one
3641
Jat
member.
18. Thus, in Jat areas, a population of 300 is provided with 2 members, whereas in non-Jat area, a population of 500 is provided with two members.
19. In Degana Panchayat, the same thing appears in two wards:
1.
Degana
population
Mixed
four
1056
members.
2.
Ghana
population
Jat
one
111
member.
This again shows that in admixed area, there is one member for about 250 of the population, but in a Jat area, there is one member for 111.
20. In Kundlota Panchayat, something; similar appears in two wards:
1.
Gonerda
population
Jat
one
133
member.
2.
Charnes
population
non-Jat
one
297
member.
Charnes, it may be noted, is more than double the size of Gonerda, but each has got one member.
21. In Khuri Kalan something similar appears in three wards as below:
1.
KhuriKhurd
population
Jat
one
288
member.
2.
Langor
population
non-Jat
one
487
member.
3.
KhuriKalan
population
Jat
three
888
members.
Here again, there is clearly an over-representation in Jat areas and in most cases it seems that double the number of people are required if itis a non-Jat area to return one member as compared to a Jat area,
22. Then comes Barna Panchayat where two wards reveal the same tale:
1.
Barli
population
non-Jat
one
348
member.
2.
Barna
population
Jat
three
771
members.
It will be clear that if the proportion of Barli and Barna had been maintained, Barna should have only got two members, but it has been given three, as according to the applicant, it happens to be a Jat area.
23. The Panchayat at Jalsu Nanag shows the same tale in five wards:
1.
JalsuKhurd and Kalan
population
mixed
three
nil
members.
2.
JodhrajKhurd
population
Jat
one
131
member.
3.
Rawant
population
non-Jat
one
578
member.
4.
Sukhbasni
pupulation
Jat
one
237
member.
5.
Punas
population
Jat
one
152
member.
It will at once be clear that Rawant which is a non-Jat area is to have a population four times as large as Jodhraj Khurd, which is a Jat area, to be able to have one member. The state of affairs in respect of Punas and Sukhbasni is also not very different.
24. Then comes Jetpura Panchayat which reveals something similar in two wards:
1.
Bhadwasland BachhoriRajputgarh
population
non-Jat
one
550
member.
2.
Dugar
population
Jat
one
160
member.
We shall deal with this particular Panchayat more in detail later in another connection, but it is remarkable here to mention that while Dugar was being given one member for 160, Bhadwasi, whose population was 430, was not thought fit for being given one member and the Rajput population of Bachhorigarh was added to it.
25. Then comes Mewra Panchayat which shows the same tale in three wards:
1.
Mewra
population
Mixed
three
1192
members.
2.
BerasKalan
population
Jat
one
159
member.
3.
BerasKhurd
population
Jat
one
179
member.
This shows that where the population was mixed, roughly 400 were required to get one member, but it was not thought protoer to make one ward of Beras Kalan and Khurd with a population of less than 400 and two members were provided for a population of less than 400. The applicant says that this was done to give over-representation to the Jats and what he says certainly appears to have force.
26. Then we come to Ladpura which shows a similar state of affairs in three wards:
1.
BesuiNarsingh
population
Mixed
two
603
members.
2.
Ladpura
population
Mixed
three
1294
members.
3.
BesuiJagan and Kalni
population
Jat
one
110
member.
It is not clear why Ladpura, which had double the population of Besui Narsingh, should only get three members as compared to two of Be-sui Narsingh, unless it be, as alleged by the applicant, that this had to be done in order that 110 Jats in Besui Jagan and Kami may have one member.
27. Then we come to Jabeda Panchayat where two wards tell the same tale;
1.
Bhanwaria
population
Jat
one
150
member.
2.
Gunsalf
population
Mixed
one
563
member.
Gunsali's population is almost four times that of Bhanwaria, but it still gets only one member and no more.
28. Then comes Rajod Panchayat which reveals something similar in two wards:
1.
Shirsala
population
non-Jat
one
463
member.
2.
Sobllas
population
Jats
one
153
member.
Here again, Shirsala has almost three times as large a population as Soblias, but gets the same number of members.
29. Then comes Chuie Panchayat which reveals something similar in two wards:
1.
Chuie
population
Mixed
Three
1025
members.
2.
Chuva
population
Jats
Three
672
members.
30. The figures need no comment. The same number of members is provided for Chuie, though if the proportion had been fairly kept, Ghuva should have got only two members.
31. The last in this list is Antroli Kalan Panchayat as below:
1.
AntroliKalan
population .
Mixed
two
607
members.'
2.
Dungras
population
Jats
one
137
member.
3.
Sarsanda
population
Jats
two
433
members.
Sarsanda with 2/3rds of the population is given the same number of members as Antroli Kalan. Dungras with less than l/4th of the population has one member, while Antroli Kalan has two. The applicant says that this has been done to over-represent the Jats throughout this Tehsil and there is some force in his contention.
32. Then we come to the charge contained in paragraph 8 (b) of the petition. The applicant says that in forming Panchayat circles, the principle of contiguity was not followed and sometimes villages separated by several miles from a Panchayat circle were put in that circle in order again to give advantage to the Jat community. He has filed a sketch map and given examples where this has been done. We may consider these examples briefly. First instance that he has mentioned is of Gundisar Noond and Degana which are in Panchayat circle Degana.
The map shows that these villages are separated from the main block of Degana Panchayat circle by several villages in between. The charge is that these are Jat villages and have been added to the Degana Panchavat in order to give a majority to Jats in the Panchayat, even though they are tar away from the main block of Degana circle Degana Panchayat has 13 members, three of which come from these two villages. If these two villages were omitted from that Panchayat, the Panchayat circle would have ten members -- five from Jat areas and five from mixed or non-Jat areas. The applicant contends with some show of reason that these villages have been added to give a certain majority to the Jats.
33. The next instance that he has given is of Panchayat Khuri Kalan. Village Langor has been added to Panchayat Khuri Kalan though it is far away from the main Panchayat block and many villages intervene. This case is a reverse case to the case of Degana Panchayat. Here Langor is said to be a non-Jat village and it has been thrown into Khuri Kalan Panchayat which is dominated by the Jats. The contention of the applicant is that this non-Jat village has been joined to a block far away from it in order to neutralise the non-Jat population of this village, as if it had been added, for example to Degana Panchayat to which it is contiguous, it might have affected the domination of the Jats.
Here again we must say that there is some force in this contention. The applicant has also pointed out instances where villages have been attached to Panchavat circles with which they are not contiguous and it is suggested that this has been done to help the Jats. It is true that there is no provision in the law which lays down that Panchayat circles should consist of villages which are contiguous and compact; but it seems to us that the very basis of Panchayat administration is that the Panchayat area should be a compact and contiguous area, so that the rural population may have all the benefits of local self-Government and dispensation of justice as near their homes as possible.
We are certain that it could not be the intention of the legislature that in making Panchayat circles, contiguity should be given up. Therefore, though there may not be anything illegal even if a village is put into a Panchayat twenty miles away, it certainly is against the very basic concept of Panchayat administration that this should be done.
And further, when this is done, as is the allegation before us, in order to help a certain community and injure others (and there is some justification for this charge in this case,) it is certainly an abuse of the power vesting in Government to form Panchayat circles. It looks almost as if there was some attempt at gerrymandering in the manner in which villages were attached to various Panchayat circles in order to benefit one community at the expense of the other.
34. Then we come to the third allegation contained in paragraph 8 (c) of the application. The allegation is that in many places, again in order to benefit the Jat community, people of certain communities, were taken out from one area and put in another when delimiting wards. It is said that this was done in order to benefit one community, namely the Jats by attaching population of other communities to other villages, thus giving the Jats a predominance in those villages from where population of other castes was removed.
Certain examples of this have been given. In Bhadwasi, the ward consists of whole of Bhadwasi village plus the houses of Rajputs of Bachhwari village. Thus, the Rajputs, who should have voted normally in Bachhwari village, have been put in Bhadwasi village and the contention is that this has been done to give advantage to Jats of Bachhawari village. This relates to Jetpura Panchayat.
35. Another instance from the same Panchayat of Jetpura is ward Dugor Achlan which is as follows. :
'The village of Dugor Achlan and the houses of Rajputs of Jetpura village.' Why this has been done is not clear, but it is obvious that caste considerations have been imported in forming wards.
36. Then in Panchayat circle Jalsu Nanag, three wards have been created in these terms:
1. Jalsu Kalan: The whole village of Jalsu Kalan except the houses of Rajputs only in east of the village.
2. Jalsu Khurd; The whole village of Jalsu Khurd except the houses of Bhambis and Sads in west of the village.
3. Jalsu Khurd: The houses of Rajputs in the east of Jalsu Kalan and the houses of Bhambis and Sads in west of Jalsu Khurd. Why this has been done is not clear.
37. There is certainly a general denial on behalf of the State to the allegation contained in paragraph 8 (c), but no attempt was made to snow to us by pointing out to orders delimiting wards that this was in fact incorrect. It was no use for the State making a general denial without bringing the necessary material before us to show that what was stated was incorrect. Learned Deputy Government was unable to tell us that in fact these allegations were incorrect.
All that he said was that this was really delimitation on territorial basis and that in villages, houses of particular castes are generally clustered together in one area. Even if that is so, we do not see why proper territorial divisions were not formed and why it was necessary, for example, to constitute a ward consisting of houses of Rajputs in the east of Jalsu Kalan and the houses of Bhambis and Sads in the west of Jalsu Khurd. In two Panchayats at least, it seems that the principle of constituencies based partly on castes has been introduced, viz., the Panchayats of Jetpura and Jalsu Nanag.
38. The last charge contained in paragraph 8 (d) of the petition is that even when the State Government framed the Panchayat circles, it was so done that where the circle was predominantly jat in population, less persons got more Panchas, while where the circle was non-Jat, more persons got less number of Panchas, with the result that Jat areas, though in a (sic), got a much larger representation iu the electoral college for the Tehsil Panchayat.
39. Some examples of these were cited from the list of Panchayats Ex. P-1. Sanju Panchayat, for example, which is predominantly non-Jat with a population ot 3061 was allowed 8 Fanchas, while Mewra Panchayat with less population of 2764 was allowed 9 Panchas because there were Jats in this area and the Jats had to be given a majority.
40. Akeli Panchayat circle, which has a population of 1208, predominantly Jats, was given six members, while Idwa Panchayat, which has a population predominantly non-Jat numbering 3192 was given only eight members.
41. Palri Bari Panchayat, which is predominantly non-Jat with a population of 3423, i.e., almost three times the population of Akeli, was given only 10 members. On the other hand, Degana Panchayat with a population of 3098 was given 13 members in order to give the Jats a majority.
42. Bawarla Panchayat with a population of 2201 predominantly Jat was given eight members. Jalsu Nana Panchayat which has a population of 3863, which is only slightly more than the population of Idwa, was given 12 members in order to give parity to the Jat population of that circle. On the other hand Monyana, which also has a population of 3169, was only given 7 members because it is mostly non-Jat. The contention of the applicant is that no principle seems to be discernible in the manner in which the number of members in each Panchavat has been fixed and that this amounts to abuse of the discretionary power conferred under Section 4 to the State Government.
43. We have scrutinised the facts alleged by the applicant and have now to see whether Section 4 or Section 5 can be struck down under Article 14 of the Constitution on the ground of denial of equality before the law. As we have already mentioned, such wide discretion has to be given to the State Government for administrative purposes. At the same time, the legislature expects that this discretion will be fairly exercised on well recognised principles. It is well settled that Article 14 can be used to strike down the law as well as executive acts performed under the colour of law if there is discrimination. We may in this connection refer to the recent decision of the Supreme Court in Messrs. Pannalal Binjraj v. Union of India, (S) AIR 1957 SC 397 (A).
44. We, therefore, first propose to consider whether the abuses that have been pointed out above are such as to lead to the conclusion that Sections 4 and 5 should be struck down on the ground that they have been used with an 'evil eve and an unequal hand' vide Yick Wo v. Hopkins, (1885) 118 US 356: 30 Law Ed 220(B). We are of opinion that these instances, which have been pointed out by the applicant are quite insufficient to lead us to the conclusion that Sections 4 and 5 of the Act have been applied with an 'evil eye and an unequal hand'. There are more than 100 Tehsils in the whole of Rajasthan and the abuses that have been pointed out refer to a part of one Tehsil.
No attempt has been made by the applicant to show that the abuses which he has pointed out relating to this Tehsii have been widespread all over Rajasthan, It cannot be said from these few instances, which the appli-cant has cited, that there has been wholesale abuse of these powers. In the circumstances, we are not prepared to hold that Sections4 and 5 of the Act are ultra vires as they are hit by Article 14 of the Constitution.
45. In the alternative, it was urged that even if Sections 4 and 5 are not ultra vires on the ground that they offend against Article 14, we should strike down the Panchayats in which these abuses have been shown to have taken place. As was pointed out in Pannalal's case (A), the action of the authority purporting to act under the Act will be subject to scrutiny where there is abuse of power arid will be liable to be set aside if it was found to be mala fide and discriminatory. We have pointed out instances of abuses in relation to some Panchayats listed in paragraph 8 of the petition. But the difficulty which we feel in striking down the delimitat on of constituencies in these Pancha-yats is that these Panchayats have not been represented before us.
The applicant has made certain charges. The State has made a general denial with respect to those charges without really trying to meet them. It may be that if these Panchayats had been made parties, they might have been able to point out that the allegations of the applicant were not correct even in their cases. Therefore, though from the material which the applicant has placed before us, it does seem that there is a case for striking down some of the Panchayats, we do not think it proper to do so on this material alone without hearing the Panchayats concerned and having fuller material on the record.
We are, therefore, not prepared to strike down even the delimitation of the wards in the absence of fuller material, though we cannot refrain from saying that the material placed before us by the applicant discloses a sorry state of aifairs and the sooner that state of affairs is-set right by the Government or the Chief Panchayat Officer, the better it is. So far, therefore, as striking down of these Panchayats is concerned, we leave the matter at this.
46. We now come to the application of Article 15 of the Constitution. That article lays down that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. The contention of the applicant is that so far as two Panchayats are concerned, namely Jet-pura and Jalsu Nanag, there has been discrimination on the ground of castes in the delimitation of wards.
That discrimination, in our opinion, is writ large in the manner in which wards have been formed in these two Panchayats, as has been shown by us when dealing with the allegations contained in paragraph 8 (c) of the application. So far, therefore, as these two Panchayats are concerned, the wards in them have been clearly formed against the provision of Article 15 of the Constitution. Vide Nain Sukh Das v. State of U. P., 1953-16 SCJ 546: (AIR 1953 SC 384) (C). This delimitation must, therefore, be struck down as discriminatory on the ground of caste.
These two Panchayats are also not before us, but in these case's, their presence or absence makes no difference, for the discrimination is writ large in the manner in which constituencies have been delimited in these two ! Panchayats. We are, therefore, of opinion that the delimitation in these two Panchayat circles, namely Jetpura and Jalsu Nanag being against the provision of Article 15 of the Constitution, must be struck down, with the result that the existing Panchayats in these two circles must cease to exist.
47. We have now to see what is the effect of the decision with respect to Jetpura and Jalsu Nanag Panchayats on the main prayer of the applicant, namely that the Tehsil Panchayat should not be formed and elections to the Tehsil Panchayat should not be held till the abuses, which .the applicant pointed out, are set right. The result of striking down the two existing Panchayats of Jalsu Nanag and Jetpura is that though these two Panchayats remain established under Section 3 of the Act, there are no wards left in those Panchayats and the members representing the existing wards go out.
It means that out of the 29 Panchayats in Degana Tehsil, 27 have members, while two, namely Jetpura and Jalsu Nanag are without members, though they have been established under Section 3. The electoral college under Section 58(2) consists of the members of all the Panchayats. Therefore, the electoral college in the case of Degana Tehsil would not be complete as there would be no members for these two Panchayats which had been established in that Tehsil. In Surajmal Sharma v. Pirthi Singh Civil Writ App]n. No. 63 of 1955, D/- 16-10-1956: (AIR 1957 Raj 383) (D) this Court held that it was obvious that unless the election of all the Panchayats in the Tehsil was completed, the electoral college is not complete and in the absence of the completion of the electoral college, the election of the Sarpanch and Panchas of the Tehsil Panchayat is not contemplated by the law. The reason for this view may be further elaborated.
Suppose there are 20 Panchayats under a Tehsil Panchayat. Of these, elections are held only in 5 and not in 15. The Chief Panchayat Officer proceeds to hold the election for the Tehsil Panchayat, while only five of the Panchayats under it have completed the election of members. Obviously, if the Chief Panchayat Officer were to hold an election for the Tehsil Panchayat when the election to all the Panchayats under it is not complete, it would lead to a lot of abuse. Besides, under Rule 21 of the Panchayat Election Rules, 1954, the Chief Panchayat Officer has to get a list prepared of Panchayats existing in the Tehsil and of the Panchas and Sarpanchas thereof.
Under Rule 22 the election can be held after this list is prepared. Where, however, there are certain Panchayats under a Tehsil Panchayat,. but no elections to them have been held, the list prepared under Rule 21 would not be complete and the election cannot be held till this list is complete. Now that we have held that Jetpura and Jalsu Nanag Panchavats must go as the delimitation therein is discriminatory and hit by Article 15 of the Constitution, the position comes to this, namely that there are 27 Panchayats in which the elections have been held, while there are two Panchayats in which so far no elections can be deemed to have been held.
Thus the list, that is required to be prepared under Rule 21 cannot be completed till these elections are held. Following, therefore, the view taken in Surajmal Sharma's case (D) we are of opinion that elections to the Tehsil Panchayat should not be held till the delimitation has been freshly made in Jetpura and Jalsu Nanag Panchavats and election held on the basis of fresh delimitation.
48. We, therefore, allow the application to this extent only that no election to the Tehsil Panchayat of Degana will be held till fresh delimitation has been made for the Panchayats of Jetpura & Jalsu Nanag and elections on the basis of fresh delimitation in these two Panchayats have been completed. As the applicant has failed on the main question of the validity of Sections4 and 5, we order parties to bear their own costs of this petition.