Rajasthan High Court - Jaipur
Kushal Chand vs State Of Rajasthan And Ors. on 1 October, 1986
Equivalent citations: AIR1987RAJ41, 1987(1)WLN467
JUDGMENT J.R. Chopra, J.
1. This reference has been made by a learned single Judge of this Court in S.B. Civil Writ Petition No. 125 of 1982. The question that has been referred for the decision of a larger Bench reads as follows:
"That whether the illegal preparation of the electoral roll can be challenged by way of election petition under Rule 78{d)(iv) of the Election Rules of 1960 or not?"
2. The facts necessary to be noticed for the disposal of this reference briefly stated are : that the petitioner Kushal Chand is the resient of Ward No. 9 of village Tausar, Tehsil and District Nagaur. He has contested the election for the post of Sarpanch against non-petitioner 5, Shri Mangital, but he has lost it. The petitioner has alleged that while revising the electoral rolls of Gram Panchayat, Tausar, the authorised Officer under the Rajasthan Panchayat Act, 1953, has included 326 names in the electoral rolls wrongly because 142 persons out of them were minors, 61 persons were non-residents and 123 persons have migrated to other places several years ago. It has further been alleged that 28 persons who were already registered as voters in certain words were transposed to different wards without any justification. Objection petitions were filed before the authorised Officer but he rejected them without holding any preliminary enquiry and without passing any speaking order in spite of the fact that objection petitions were supported by affidavits and have been filed by the electors of the concerned wards as provided by the Rules. He only passed a criptic order ^^vLohÑr gS** without assigning any reasons as to why objection petitions have been rejected. Appeals were preferred before the Collector but the Collector has rejected the appeals on the ground that with the appeals, copies of the orders have not been filed. The case of the petitioner is that because of the wrong inclusion and transposition of the voters, non-petitioner 5 Shri Mangilal and 10 other Panchas could get themselves elected to the Gram Panchayat and non-petitioners 16 and 17 could get themselves co-opted to the Panchayat. The authorised officer rejected the objection petitions on 18-11-1981 and the Collector rejected the appeals before 25-11-1981. On 25-11-1981, the Collector issued a public notice under Rule 14, Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 (hereinafter referred to as the 'Rules') and published the programme for election vide Annexure II. The contention of the petitioner is that the result of the election, not only of the Sarpanch but also of the Ward Panchas, stands vitiated on account of the wrong inclusion of 326 voters in the voters list and transposition of 28 voters in different wards. According to the petitioner, as per a Division Bench decision of this Court in Hapuram v. M. J. M. Merta and Ors., (D. B. Special Appeal No. 345 of 1980, decided on 2-2-1981), the wrong inclusion of the names or transposition of the names in the electoral rolls cannot form part of the election dispute and, therefore, such a wrong inclusion of fresh names in the electoral rolls as also the wrong transposition of the names in the electoral rolls cannot be challenged by way of an election petition and so, he is left with no other alternative remedy to get this election quashed by an appropriate writ under Article 226 of the Constitution. According to the petitioner, preparation of the proper electoral rolls is the basic foundation for holding the election and since that foundation is missing in this case, the election held on the basis of the final electoral rolls published by the Collector, which is inclusive of 326 names referred to above and 28 transposed names in different wards has vitiated the election and, therefore, this election should be set aside by a writ in the nature of mandamus or quo warranto or any other appropriate writ, order or direction be issued and the proceedings taken by non-petitioner 4 in dealing with the claims and objections for inclusion of 326 persons in the voters list and transposition of 28 persons from their respective wards to other wards and the publication of the final voters list Annexure-B and the election held on its basis be declared null and void. He has also prayed that the order of the Collector Nagaur Annexure-8 dt. 5-12-1981 dismissing the appeals be also quashed and in consequence thereof the election of non-petitioner 5 as Sarpanch of the Gram Panchayat, Tausar and the election of non-petitioners 6 to 15 as Panchas of that Gram Panchayat and the co-option of non-petitioners 16 and 17 as Co-opted Panchas of the Gram Panchayat be declared void and non-petitioners 1 to 4 be directed to delete the names of 326 persons from the electoral rolls and to cancel the transposition of 28 names from the electoral rolls from their respective wards to the other wards in which they have been included.
3. A preliminary objection was raised by Mr. M. Mridul learned counsel for the non-petitioners that the contest regarding inclusion of wrong names in the electoral rolls is an election dispute because the authorised officer rejected the objections of the petitioner and other ward members on 18-11-1981 when the elections were reasonably imminent. In this respect, he placed reliance on the following passage taken from Halsbury's Laws of England Edn. 2, Vol. 12 under the heading Commencement of the Election :
"Although the first formal step in every election is the issue of the writ, the election is considered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is reasonably imminent. Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor, again does the nomination day afford any criterion. The election will usually begin at least earlier than the issue of the writ. The question when the election begins must be carefully distinguished from that as to when 'the conduct and management of an election may be said to begin. Again, the question as to when a particular person commences to be a candidate is a question to be considered in each case."
It was contended by Mr. M. Mridul, learned counsel for the non-petitioners that as the notification for the election of Gram Panchayat Tausar was issued by the Collector on 25-11-1981, the election was fairly imminent when the authorised officer dismissed the objection petitions on 18-11-81 and when the Collector dismissed the appeals thereafter and, therefore, the wrong addition of the names and the wrong transposition of the names in the electoral rolls should be considered as an election dispute in the facts and circumstances of this case. He has argued that the Judgment in Hapuram's case (supra) be overruled, as it does not lay down the correct law as per the decision of their Lordships of the Supreme Court in Lakshmi Charan Sen v. A. K. M. Hassan Uzzaman, AIR 1985 SC 1233.
4. The learned single Judge while quoting Rule 78(d)(iv) of the Rules has posed the following question :
"Whether the non-compliance of the provisions of the Act of 1953 or Election Rules can be made subject-matter of election petition or not ?
In other words, whether preparation of the electoral rolls is a pre-election matter or it is a part of the election process. Rule 78 of the Rules deals with the manner of challenging an election or co-option under the Rules. Rule 78(d)(iv) provides that an election can be challenged for any non-compliance with the provisions of the Act or of these Rules. The electoral rolls are preparedas per Rule 6 to Rule 9A of the Rules and, therefore, any non-compliance with the provisions of the Rules regarding preparation of the electoral rolls is a contravention of the Rules and hence it has to be decided whether such contravention can be made the subject matter of election petition ?
5. We have heard Mr. M. M. Singhvi and Mr. M. S. Singhvi, learned counsel for the petitioner and Mr. M. Mridul, learned counsel for the non-petitioners at some length on this point.
6. Mr. M. Mridul, learned counsel for the non-petitioners has contended that it is a question of fact in this case whether the preparation of the electoral roll is a part of the election process or not and it cannot be laid down as an inflexible rule of law that preparation of the electoral roll is a preelection matter. In this respect, he has placed reliance on the above-quoted observations of the Halsbury's Laws of England, which has been approved by their Lordships of the Supreme Court in N. P. Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64 and Lakshmi Charan Sen's case, (AIR 1985 SC 1233) (supra).
7. Mr. M. M. Singhvi, learned counsel for the petitioner has argued that preparation of the electoral roll is a pre-election matter and it cannot form part of an election dispute. This is actually a bedrock on which the entire edifice of an election process is built and this is amply borne out from the provisions of the Act and the Rules as also from various authorities of this Court and of the Supreme Court. He has drawn our attention to sub-ss. (3) and (4) of Section 10 of the Act, wherein it has been provided that every such person whose name appears for the time being in the list of voters for a ward shall unless he is disqualified to do so under any law, for the time being in force, be entitled to vote at an election in that ward and that every such person shall be entitled to cast as many votes as there are panchas to be elected from that ward and no person shall be entitled to vote in more than one ward or to cast more than one vote in favour of the same person. He also invited our attention to Section 11 of the Act wherein it has been provided that every person who is entitled to vote at an election in any Panchayat circle or a ward thereof for the purpose of this Act shall be qualified for election or appointment as a Panch unless he is disqualified on account of the certain provisions of this section. He has submitted that inclusion of the name of a person in the electoral rolls is the very basis of every election because that entitles him to vote at an election and that further entitles him to contest the election for the Office of the Panch. He has further submitted that according to the scheme of the Rules, the electoral rolls are published and then objections are invited and those objections and claims are disposed of by the Collector or its authorised officer by holding a summary enquiry and in the matters of preparation of the electoral rolls, the decision of the Collector has been held to be final as per Rule 9 of the Rules. Thereafter, such a final voters' list is to be published as per Rule 9 A of the Rules. Mr. Singhvi, learned counsel for the petitioner has submitted that preparation of the electoral rolls and its revision, etc., are independent processes which have nothing to do with the conduct of election as such. Section 11-A provides that there will be an annual revision of the voters' list. Section 11-B provides that there can be a special revision of the voters' list irrespective of the fact whether elections are held or not but this much is certain that every list of voters referred to in Sub-rule (1) of Rule 9A shall continue in force until it is revised in accordance with Rule 11-A of the Rules. Thus, the same voters' list has to be effective at all times. No vacuum can be kept so far as voters' list is concerned. Whether preparation of the voters list is a pre-election matter or it is a part of the election process, Rule 12 furnishes a guideline. It provides that if the Collector on his own motion or on the application made to him is satisfied after such enquiry as he thinks fit, that any entry in a voters' list is erroneous or defective in any particular or some name should be transposed to the voters' list of another ward on the ground that the person concerned has changed his place of ordinary residence, or should be deleted on the ground that the person concerned is dead or has ceased to be ordinary resident of the ward or is otherwise not entitled to be registered in the electoral rolls of that ward, he shall amend, transpose or delete the entry. Of course, a procedure has been provided for this purpose also. This can be done even after the final publication of the list under Rule 9A but proviso to sub-r. (2) of Rule 12 of the Rules provides that no such direction shall be given for the amendment, transposition or deletion of a name from the voters' list under sub-r. (2), i.e., after the final publication of the voters list under Rule 9A, after the issue of the public notice under Rule 14 of the said rules until completion of election. It clearly means that changes in the voters' list can only be effected before the notification for holding of the election is issued under Rule 14 of the Rules or after the elections are completed. This precisely offer a guideline to conclude that the process of election, starts from the issuance of the public notice under Rule 14 and it ends with the completion of the elections, i.e., declaration of the results. The preparation of the voters' list is a pre-election matter, it is not a part of the election process. Mr. Singhvi in this respect placed reliance on Gyana Ram v. Ramsingh, 1966 Raj LW 581, Hapuram's case (supra) and Atma Singh v. State of Rajasthan, 1967 Raj LW 275 : (AIR 1967 Raj 239). He further placed reliance on P. R. Belagali v. B. D. Jatti, AIR 1971 SC 1348, Nripendra v. Jai Ram Verma, AIR 1977 SC 1992 and Mohinder Singh Gill v. Chief Election Commr., AIR 1978 SC 851 as also Lakshmi Charan Sen's case, (AIR 1985 SC 1233) (supra), reliance on which has been also placed by Mr. M. Mridul, learned counsel for the non-petitioners.
8. We have carefully gone through these rulings. A learned single Judge of this Court in Gyana Ram's case, (1966 Raj LW 581) (supra) has held that if the name of any person is wrongly entered in the electoral roll which has become final under Rule 9, he is entitled to vote at the election and the Election Tribunal cannot discard his vote as being void. It means that inclusion of the name of a person in the voters' list is final and it can only be challenged by the process which has been provided in the Rules. The election Tribunal has no power to hold that inclusion of the name of a particular person in the voters' list was wrong or right. Once his name is included in the voters' list, he has a right to vote at the election and also to contest the election unless he is otherwise disqualified.
9. In Hapuram's case (supra), the ratio of Gyana Ram's case (supra) has been approved and it has been held that preparation of the voters' list is not an election dispute and cannot be made subject-matter of an election petition.
10. A Full Bench of this Court consisting of D. M. Bhandari, L. N. Chhangani and B. P. Beri, JJ. (as they then were) in Atma Singh's case (AIR 1967 Raj 239)(supra) observed as under :
"It will neither be reasonable nor proper to hold that non-compliance of the provisions of the Act relating to pre-election matters can form the subject matter of investigation in an election petition. Such matters can hardly be an appropriate subject for investigation by an election Tribunal. Thus, Section 34 provides for questioning an election for errors and defects in the conduct of election committed by the returned candidate or by the Returning Officer. The election, therefore, cannot be set aside by an Election Tribunal for any mistake in the preparation of electoral roll."
It was further observed therein as follows :
"The process of election starts by issuing of a notification calling upon a constituency to elect a member or members. Before such a notification can be issued, a number of preliminary steps have to be taken under the law. The law has laid down the manner in which these things are to be done. There may arise cases in which the authorities have failed to perform their functions in accordance with law in doing these things. Sometimes the transgression of law may be inexcusable and of such a serious nature that a court may be persuaded to take the view that the bedrock to hold elections is missing. In such circumstances, a citizen may apply to this Court under Article 226 of the Constitution for issuing of mandamus or any other appropriate writ directing the State Govt. to perform these things in accordance with law and the High Court in an appropriate case may, in its discretion, issue such a writ or direction restraining the Government to hold election."
Thus, in view of the Full Bench decision of this Court, pre-election disputes can only be challenged in the manner either provided by the Act or the Rules concerning them or by an appropriate writ under Article 226 of the Constitution.
11. In P. R. Bengali's case (AIR 1971 SC 1348)(supra), it was held by their Lordships of the Supreme Court that in an election petition, the correctness of the Electoral Roll cannot be gone into. In that case, it was observed as follows :
"The entire scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an Electoral Roll of 'a constituency can only be challenged in accordance with the machinery provided by it and not in any other manner or before any other forum unless the question of violation of the provisions of Constitution is involved."
Although, P. R. Belagali's case (supra) relates to the provisions of the Representation of the People Act, 1951, but the ratio of the decision applies on all fours to this case because the provisions of Sections 10 and 11, Raj. Panchayat Act, and the provisions of Rule 6 to 12-B of the Rules clearly provide a particular machinery for the preparation of the electoral rolls and such electoral rolls form the very basis on which the entire election process is based and, therefore, the election Tribunal has no power to examine the correctness of the electoral rolls.
12. In Nripendra's case (AIR 1977 SC 1992) (supra), their Lordships of the Supreme Court observed as follows :
"The finality of the electoral roll cannot be challenged in an election petition even if certain irregularities had taken place in the preparation of the electoral roll or if subsequent disqualification had taken place and the electoral roll had on that score not been corrected before the last hour of making nominations. After that dead line the electoral roll of a constituency cannot be interfered with and no one can go behind the entries except for the purpose of considering disqualification under Section 16 of the 1950 Act. In the case in question, the persons whose names were recorded in the electoral roll and participated in the voting were not disqualified under Section 16 of the 1950 Act. That being the position, it would have been wrong on the part of the Presiding Officer not to allow the voters whose names were recorded in the electoral roll of the constituency to participate in the voting, even though their names could have been earlier at the appropriate time legitimately excluded from the electoral roll. These voters are electors within the meaning of Section 2(1)(e) of the 1951 Act and were entitled to vote under Section 62 of the 1951 Act."
Thus, in Nripendra's case (AIR 1977 SC 1992) (supra), it has been categorically held that the finality of the electoral roll cannot be made subject matter of the election petition even if certain irregularities might have taken place in the preparation of the electoral roll, i.e., deletion or inclusion of certain names at the appropriate time.
13. In Mohinder Singh Gill's case (AIR 1978 SC 851) (supra), their Lordships of the Supreme Court considered the scope of Article 329(b) of the Constitution and have been pleased to observe that the election covers the entire process from the issue of the notification under Section 14, Representation of the People Act, to the declaration of the result under Section 66 of the Act. It is, therefore, very clear that the process of election starts with the notification and it ends with the declaration of the result. The preparation of electoral roll is not a part of the process of the election because the electoral roll cannot be touched after the notification under Section 14, Representation of the People Act, is issued. Similarly, the electoral roll prepared under the Act and the Rules framed thereunder cannot be touched after the notification under Section 14 of the Act is issued, by the appropriate authority and hence, the preparation of the electoral roll is a pre-election matter as per the decision of the Constitution Bench of their Lordships of the Supreme Court in Mohinder Singh Gill's case (AIR 1978 SC 851) (supra).
14. Mohinder Singh Gill's case (supra) came up for consideration in Lakshmi Charan Sen's case (AIR 1985 SC 1233) (supra) wherein it was observed as under :
"The fact that certain claims for inclusion of names in electoral rolls and objections relating to inclusion of certain names therein are not finally disposed of, even assuming that they are filed in accordance with law, cannot arrest the process of election to the legislature. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations.
The fact that the revision of electoral rolls, either intensive or summary, is undertaken by the Election Commission does not have the effect of putting the electoral roll last published in cold storage. The revision of electoral rolls is a continuous process which has to go on elections or no elections. Various provisions contained in Section 21 indicate that if an electoral roll is not revised, its validity and continued operation remain unaffected, at least in a class of cases. That exemplifies an important principle which applies in the case of electoral rolls. Section 21(3) of the Act of 1950 confers upon the Election Commission the power to direct a special revision of the electoral roll. The proviso to that sub-section also says that until the completion of the special revision so directed, the electoral roll for the time being in force shall continue to be in force. That proves the point that Election Laws abhor a vacuum. In so far as the electoral rolls are concerned, there is never a moment in the life of a political community when some electoral roll or the other is hot in force. Section 23(3) of the said Act also points in the same direction. It is not suggested that claims and objections filed in the prescribed form should not be decided promptly and in accordance with law. But the important point which must be borne in mind is that whether or not a revision of an electoral roll is undertaken and, if undertaken whether or not it is completed, the electoral roll for the time being in force must hold the field.
It was further observed as under:
"Thus, the fact that an appeal is pending under Rule 23(1) against the decision of a Registration Officer under Rule 20, 21 or 21A does not constitute an impediment to the publication of the roll and to the roll, upon such publication, coming into force. Rule 20 provides for inquiry into claims and objections; Rule 21 provides for inclusion pf names which are left out of the roll owing to inadvertence or error; while, Rule 21-A provides for the deletion of names of dead persons and of persons who cease to be or are not, ordinary residents of the particular constituency. Notwithstanding the fact that the roll contains these errors and thebligation to publish the roll by virtue of Rule 22."
Thus, an absolute finality is attached to the electoral rolls in force for the time being. These provisions of the Representation of the People Act are almost similar to the provisions of the Act and the Rules. Much stress was laid on the passage quoted hereinabove from the Halsbury's Laws of England, Edn. 2, Vol. 12 under the heading 'Commencement of the Election'. Their Lordships of the Supreme Court in Lakshmi Charan Sen's case, (AIR 1985 SC 1233) (supra) observed that in Mohinder Singh Gill, AIR 1978 SC 851, Krishna Iyer, J., speaking for the Constitution Bench, has considered at great length the scope and meaning of Article 329(b) of the Constitution. It was further observed as under :
"Describing that Article as the "Great Wall of China", the learned Judge posed the question whether it is so impregnable that it cannot be by-passed even by Article 226. Observing that "every step from start to finish of the total process constitutes 'election: not merely the conclusion or culmination" the judgment concludes thus :
"The rainbow of operations, covered by the compendious expression 'election, thus commences from the initial notification and culminates in the declaration of the return of a candidate."
While agreeing with the aforesaid observations of Mohinder Singh Gill's case, their Lordships further observed as follows :
"We have expressed the view that preparation and revision of electoral rolls is a continuous process, not connected with any particular election. It may be difficult, consistently with that view, to hold that preparation and revision of electoral roll is a part of the 'election' within the meaning of Article 329(b)".
Thus, the upshot of the entire observation of their Lordships has been that the expression 'election' commences from the initial notification and culminates in the declaration of the return of a candidate and that preparation and revision of electoral rolls being continuous process, not connected with any particular election cannot be held to form part of the election within the meaning of Article 329(b) of the Constitution. Of course, even after these observations, it has been observed that perhaps, as stated in Halsbury in the passage extracted in Ponnuswami, AIR 1952 SC 64, the facts of each individual case may have to be considered for determining the question whether any particular stage can be said to be a part of the election process in that case and in that event, it could be difficult to formulate a proposition which will apply to all cases alike. These observations may relate to the cases where the revision of electoral rolls is made permissible even after the publication of the notification or it may relate to the cases where even after the publication of the notification, any particular process which is otherwise a pre-election matter is made part of the election process by any law or Rules framed thereunder and not otherwise. So far as the preparation of the Electoral Rolls under Sections 10 and 11 of the Act and under Rules 6 to 12-B of the Rules is concerned, the preparation of the electoral rolls is not related to any particular election and, therefore, any error or illegality kept in preparation of the electoral rolls cannot be challenged by way of an election petition under Rule 78(d)(iv) of the Rules.
15. It has been observed in Hapuram's case (supra) that it is true that an election petition under the provisions of the Representation of the People Act can also be entertained where one of the grounds being non-compliance of the Act and the Rules which is in pari materia with the provisions of Rule 78(d)(iv) of the Rules but the Division Bench and Full Bench of this Court as well as their Lordships of the Supreme Court have categorically held in a number of authorities quoted herein above that any illegality or irregularity committed in the preparation of the electoral rolls cannot be made the basis of an election petition and, therefore, these observations clinch the issue and admit no other interpretation than the one taken by us above. Even while quoting the abovesaid passage from Halsbury's Law of England their Lordships of the Supreme Court have observed in Lakshmi Charan Sen's case, (AIR 1985 SC 1233) that preparation of electoral rolls being a continuous process unconnected with any particular election, it will be difficult to hold consistently with that view that preparation and revision of an electoral roll is a part of election process which means that in spite of these observations of the Halsbury's Law of England, their Lordships of the Supreme Court recorded a categorical finding that preparation of the electoral roll is not a part of the election process. We are, therefore, unable to agree with the submission of Mr. M. Mridul, learned counsel for the non-petitioner that because the decision regarding rejection of the objection petitions was given at a time when holding of the Panchayat elections was imminent and, therefore, any illegality or irregularity committed in preparation of the electoral roll should form part of the election process which could only be agitated by an election petition and not otherwise. In view of the aforesaid conclusion arrived at by us, this contention does not find favour with us.
16. In this view of the matter, we are firmly of the opinion that any illegality or irregularity committed in preparation of the electoral roll cannot be challenged by way of an election petition under Rule 78(d)(iv) of the Rules.
17. The reference is answered accordingly.