Patna High Court
Awadhesh Prasad vs Tarkeshwar Singh And Ors. on 23 March, 1965
Equivalent citations: AIR1966PAT23, AIR 1966 PATNA 23
JUDGMENT Narasimham, C.J.
1. This is an appeal from the judgment of Mahapatra J. quashing the election of Nadaul Gram Panchayat held in November-December 1963, on the ground that the election was vitiated by the use of more than one voters' list at different stages of the election. The electoral roll for the said Panchayat was finally published between the 8th and the 13th November 1963. The date for the filing of the nomination was fixed for the 16th November 1963, and the poll was fixed for the 21st December 1963. The respondents (who were the petitioners before the learned Judge) alleged that though they were voters in the electoral roll used for the previous election to the Panchayat in 1980, they were surprised to find that their names were removed from the list of voters in the electoral roll finally published in November 1983. They were further surprised to find that on the date of poll, i. e., the 21st December 1983, 127 new names were added to the electoral roll. The names of those persons are given in Annexure G attached to the petition. It was thus alleged that after the final publication of the electoral roll on the 13th November 1963, 127 new names were added just on the date of the poll, is consequence of which the entire election proceeding was vitiated. The learned Judge, following a previous decision of a Division Bench of this Court (to which he was a party), Bishwanath Prasad v. Ramji Prasad Sinha, AIR 1984 Pat 459, held that though an electoral roll may be amended from time to time in accordance with the rules, nevertheless the roll that was finally published and that was in force on the date of the commencement of the election to the Panchayat should be taken as final for the purpose of that election and that the rules do not contemplate any further addition or amendment to the roll till the date of poll. It is true that the said Division Bench decision related to the elections held in a municipality, but the learned Judge thought that the provisions of the Bihar Municipal Elections Rules and the provisions of the Bihar Panchayat Elections Rules, 1959, were almost identical on this subject and hence the principle laid down in the said Division Bench decision would apply with full force here also.
2. On behalf of the State of Bihar it was admitted that 127 names were added to the electoral roll in accordance with the provisions of Rule 26 of the Registration of Electors Rules, 1960, But it was not stated either in the petition of the respondents or admitted in the counter-petitions Sled on behalf of the State of Bihar that any of the said 127 persons actually participated in the election by exercising their right to vote. I shall comment on this omission later on.
3. It is necessary to briefly refer to certain statutory provisions dealing with the preparation of electoral rolls for the Panchayat elections. In the old Panchayat Election Rules there were detailed provisions for the preparation of voters' list, for its draft publication, for inviting claims and objections and for the final publication of the voters' list by the Election Officer. Sub-rule (1) of Rule 13 of the old rules further stated that no person, other than the person whose name is entered in the register and the voters' list, shall have the right to vote. Sub-rule (2) of the said rule was as follows: "The register as finally published under Sub-rule (1) shall not be altered except as provided in Rule 7". It may, therefore, be reasonably inferred that under the old Panchayat Rules the register and the voters list when finally published for the purpose of an election cannot be further amended or altered during the course of that election.
4. But by a subsequent amendment all the provisions dealing with the draft publication, hearing claims and objections and final publication of the voters' list were completely omitted (Rules 6 to 12) and Rule 5 was recast as follows :
"5. (1) So much of the electoral roll or rolls of an Assembly Constituency of the State of Bihar, for the time being in force, as relates to the areas comprised within the local limits of the jurisdiction of a Panchayat, shall be deemed to be the voters' list for the Panchayat for the purpose of election of Mukhiya and Sarpanch and so much of the said electoral roll or rolls as appertain to a particular ward, constituted under Rule 4 of these rules, shall be deemed to be the voters' list of that particular ward for the purpose of election of Panch and Member of the Executive Committee from the ward concerned.
(2) No person other than the person whose name is included in the voters' list referred to in Sub-rule (1) shall have the right to vote."
Rule 13 and other succeeding rules dealt with the procedure for the publication of the election programme for inviting nominations, fixing the date of the scrutiny of the nominations and the subsequent holding of the poll.
5. The object of making this radical amendment is obvious. The qualification for enrolment as a voter for Gram Panchayat elections is identical with the qualification for enrolment as a voter under the Representation of the People Act, 1950; hence instead of duplicating the machinery for the purpose of preparing the electoral roll the Government thought that it would be simpler to adopt the electoral roll for an Assembly Constituency of the State of Bihar "for the time being in force" as relates to the areas comprised within the local limits of the jurisdiction of a Panchayat to be the voters' list for that Panchayat "for the purpose of election." The words (here into " " above) underlined are the most important words in Rule 5, and on their interpretation will depend the result of this appeal.
6. So far as the electoral roll under the Representation of the People Act, 1950, is concerned, there are provisions (Sections 22 and 23) for correction of entries in the electoral rolls and inclusion of new names. There is also provision for appeals (See Section 24). In the Registration of Electors Rules, 1060, also detailed provisions have been made for draft publication of the electoral roll, hearing claims and objections and final publication of the electoral roll after disposal of such claims and objections. Sub-rule (2) of Rule 22 of the said rules says : "On such (final) publication, the roll together with the list of amendments shall be the electoral roll of the constituency." Rule 23 provides for an appeal against orders deciding claims and objections; and the makers of the rules were conscious that appeals may remain pending for some time after the final publication of the roll and the holding of elections on the basis of the said finally published roll; hence in Sub-rule (4) of Rule 23 they took care to say that the decision of the appellate authority in so far as it reverses or modifies the decision of the Registration Officer shall take effect only from the date of the decision in appeal. The appellate authority's decision has thus no retrospective effect; and hence, if an election is held in accordance with the roll as finally published, and subsequent to the date of the holding of the election the electoral roll is amended in consequence of the disposal of the appeals by the competent authorities, the validity of the election could not be challenged merely because the electoral roll was revised in pursuance of the appellate authority's decision.
Rule 26 of the said rules provides for the filing of applications for correction of electoral rolls, even after their final publication, and their disposal by the competent authority under Sub-rule (4) of the said rule. A further appeal is provided against the said order of the appellate authority in Rule 27. It has been held by a Division Bench of this Court in Rani Kishun Singh v. Tribeni Prasad Singh 17 Elec. L R 81 : (A I R 1959 Pat 356) that the correction of entries in the electoral roll under Rule 26 of the said rules can be made even after final publication. Thus, so far as the election to an Assembly Constituency is concerned, though the roll as finally published under Rule 22 of the Registration of Electors Rules should be taken as the basis for holding the elections, nevertheless, if in consequence of an amendment made under Rule 26 of the said rules new voters are added to the list before the date of poll, they will have a right to vote in the constituency even though their names might not have been included in the finally published roll, and the validity of the election will not be liable to be challenged on this ground.
7. But the more difficult question to decide is whether the same principle can be applied so far as the election to a Gram Panchayat is concerned. I have already quoted Rule 5 of the Gram Panchayat Elections Rules. Do the words "for the time being in force" in Sub-rule (1) of the said rule mean the roll as finally published which is in existence on the date of the commencement of an election, or do they include even the additions and corrections that maybe made up to the date of the poll? It is true that the expression "for the time being" is somewhat ambiguous, and as pointed out in Stround's Judicial Dictionary, 3rd edition, at page 3030, the phrase "for the time being" may, according to its context, mean the time present, or denote a single period of time; but its general sense is that of time indefinite, and refers to an indefinite state of facts which will arise in the future, and which may (and probably will) vary from time to time. On behalf of the appellant it was urged that the said phrase should be so construed as to refer to an electoral roll as amended till the date of the poll and that the lower Court was not justified in construing it so as to make it applicable to the electoral roll as it was on the date of the commencement of the election.
It is true that Sub-rule (1) of Rule 5 of the Bihar Panchayat Elections Rules contains the other words "for the purpose of election". But, as pointed out in the well-known decision of the Supreme Court in N.P. Ponnuswami v. Returning Officer, Namakkal, AIR 1952 S C 64, the word "election" has been used in the Constitution in the wide sense so as to include the entire process of election, commencing with the issue of notification calling upon a constituency to elect and ending with the declaration of election of a candidate. Counsel for the appellant, therefore, contended that, if before the date of the poll some persons are enrolled as voters in accordance with the provisions of the Registration of Electors Rules, 1960, their right to vote for the Gram Panchayat election should not be taken away even though their names might not have been included when the roll was finally published. Counsel, therefore, urged that the Division Bench decision in A I R 1964 Pat 459 may require reconsideration, and suggested that the matter may be referred to a larger Bench.
8. The question is not free from difficulty. The answer will depend on whether the words "for the purpose of election" in Rule 5 (1) should be so construed as to refer to the date of the commencement of the election, or else whether they should be construed as extending up to the date of the termination of the election, namely, the date of poll. Mr. Bhuneshwar Dhari Singh on behalf of the Government urged that the point was of great importance as it would affect many other election disputes and that it was desirable to constitute a larger Bench to examine the correctness of the aforesaid Division Bench decision. But for the reasons to be stated in the subsequent paragraphs I do not think it will be proper to constitute a larger Bench for the disposal of this appeal. If the Government so desire, they can easily amend the Bihar Panchayat Election Rules, 1959, in exercise of their rule-making power, so as to make it clear beyond any doubt that though an election to a Panchavat may commence on the basis of the electoral roll as finally published nevertheless persons who are enrolled as voters up to the date of the poll may also be permitted to exercise their right of franchise. When there is no such express provision in the rule, I do not find any special reason as to why the principle laid down in the aforesaid Division Bench decision should not be followed.
9. But I think the appellant must succeed in this appeal for other important reasons which were perhaps not fully appreciated by the learned single Judge: (1) The respondent-petitioners had no right to challenge the election ; (2) there is no assertion to the effect that the 127 persons who were enrolled as voters from the date or the nomination till the date of the poll actually participated in the election and thereby adversely affected the result ; and (3) the validity of the election is now under challenge before the Tribunal in an election petition as provided in Rule 72 of the said rules filed by one Ramautar Singh, one of the defeated candidates. In my opinion these are very good grounds for this Court to refuse to exercise its jurisdiction under Article 226 of the Constitution.
10. It is fundamental that the right to approach the High Court under Article 226 can be availed of only by a person who has some sort of justiciable right. Admittedly the respondent-petitioners were not enrolled as voters in the Gram Panchayat for the disputed elections and consequently they could not even stand as candidates. Under Section 4 of the Bihar Panchayat Raj Act, 1947, as it stood before the amendment, every adult ordinarily residing in the villages which formed part of a Gram Pancnayat was a member of the Gram Panchayat. Hence under the old section every adult ordinarily residing in the village may with some justification claim to have a right to see that the Panchayat elections are held according to law because he is a member of the Panchayat. But this section has been amended by Bihar Act 18 of 1963, and under the new Section 4 the membership of a Gram Panchayat is limited only to those persons who are enrolled as electors in the electoral roll of the Assembly Constituency for the time being in force as relates to the local area comprised within the limits of the Gram Panchayat.
Thus, by virtue of this amendment, mere residence within the area of a Panchayat will not suffice to make an adult a member of the Panchayat, but he must also be enrolled as an elector. The respondent-petitioners' interest, therefore, as mere residents within the jurisdiction of the Panchayat will not suffice to give them a right to question the validity of the election. Their right is only that of members of the general public. As pointed out in Wade's Administrative Law, page 120 :
"But there is an evident distinction between per sons who are particularly concerned with the performance of a public duty and members of the public generally."
Counsel for the respondents cited before us an unreported single Judge decision of this Court in Sheikh Ali Imam v. District Magistrate, Monghyr, Misc. Judicial Case No. 768 of 1962, D/- 25-2-1964 (Pat.), based on the provisions of old Section 4 of the Bihar Pancnayat Raj Act, to the effect that every resident in a Panchayat had an interest to see that the elections are properly held, but in view of the amendment made to Section 4, as already indicated that decision will not be of any help here. I must, therefore, hold that the respondents have no justiciable interest to ask this Court to exercise its extraordinary jurisdiction under Article 226 and question the validity of an election held to the Panchayat.
11. The Panchayat Rules themselves provide for questioning the validity of an election by a regular election petition which may be filed before the Election Tribunal either by a candidate or a voter (see Rule 72 and the succeeding rules.) That procedure has already been adopted by one of the defeated candidates, namely, Ramautar Singh, and the election petition is still pending before the appropriate tribunal. There the question as to how far the election has been vitiated by the inclusion of 127 persons as voters on the date of the poll will come up for consideration. The petitioners did not expressly state that those 127 voters, or some of them at any rate, actually exercised their right of franchise. This again is a point which will have to be considered by the Tribunal which will have to decide whether the election results were materially affected by their votes.
12. Counsel for the appellant further pointed out that respondents 6, 9, 10 and 12 were declared elected uncontested and hence no poll was held in their wards. Therefore, even if the lower Court's view that the inclusion of 127 new names on the date of the poll vitiated the election be held to be correct, there was no justification to annul the election of these uncontested candidates,
13. But, for the reasons already stated, I do not think this is a fit case in which this Court should exercise its jurisdiction under Article 226 of the Constitution. The respondents have no justiciable right to invoke this Court's jurisdiction, especially at a time when an election petition is pending before a Tribunal where all these questions, including the disputed question of fact as to whether the 127 members participated in the election or not, will come up for proper consideration.
14. For these reasons the appeal is allowed, the judgment of the learned Single Judge is set aside and the petition of the respondents is dismissed; but there will be no order for costs.
S.P. Singh, J.
15. I agree.