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4. The real and substantial question raised by Mr. Shah was his second contention namely 125 persons who at the relevant time were the residents of Shivrajpur Mines Panchayat were wrongly included in the list of voters for the fourth ward of the first respondent Panchayat and that by reason of these 125 persons having participated in the election in the fourth ward the election must be held to have been necessarily affected by such illegal participation. There is no denial in the affidavits either of the first respondent or the third respondent that the 125 persons were residing at the material time in Shivrajpur Mines Panchayat and therefore were not the residents of the first respondent Panchayat. The petitioners have also produced certificates annexed as Ex. E to the petition which show that these 125 persons were living at the relevant time in the Mines village and Pot in the village with which we are concerned and though the respondents have denied that they were not rightful voters it is obvious that inclusion of the names of these 125 voters occurred because the names of these persons were through mistake or inadvertence included in the list of voters for Shivrajpur village instead of for Shivrajpur Mines village prepared for the Assembly election under the Representation of the People Act 1950 The list was prepared in 1960 but until the filing of this petition no objection was ever taken by anyone not even by the other Panchayat with regard to the inclusion of these names. The learned Assistant Government Pleader has produced before us the list of voters for the constituency of Halol for the purposes of the election of the members of the State Assembly which we find includes amongst other areas these two villages. That list is village-wise and the names of voters there are under separate headings or parts one for Shivrajpur village site and the other for Shivrajpur Mines area. It is not in dispute that in that list of voters these 125 persons find their place amongst the voters of Shivrajpur village site though they were the residents of Shivraipur Mines village Mr. Shahs contention was that these 125 persons though their names may have been included as voters in Shivrajpur village site in the list of voters for the Assembly election could not be included as voters for the purposes of the election of the Panchayat as they were not the residents of the first respondent Panchayat but were the residents of the other Panchayat and therefore had no right to vote or participate in the election. He therefore submitted that their participation in the election by voting at the election in the fourth ward was illegal and rendered the entire election void.

This contention raises the question as to the proper interpretation of Sections 12 and 13 of the Act Sub-section (1) of Section 13 provides:

Every person whose name is in the list of voters shall unless disqualified under this Act or any other law for the time being in force be qualified to vote at the election of a member for the ward to which such list pertains.

5. Leaving aside the provision as to the disqualification of a voter this sub-section must mean that a person whose name appears in the list of voters would be qualified to vote at the election of a member of the ward to which such list pertains. Under Sub-section (2) such a person can stand as a candidate for election in any of the wards of the village. Sub-section (3) makes the list of voters conclusive evidence subject of course to any disqualification incurred by such person for the purpose of determining under this section whether any person is qualified or is not qualified to vote or as the case may be is qualified or is not qualified to be elected at any election. Now the expression list of voters in Section 13 must mean the list of voters as defined by Section 3(11) of the Act which defines the list of voters as a list of voters provided for and maintained under Section 12. Section 12(1) as amended by the Gujarat (Adaptation of Laws) Order 1960 provides that the electoral roll of the Gujarat Legislative Assembly prepared under the provisions of the Representation of the People Act 1950 and in force on such day as the State Government may by general or special order notify in this behalf for such part of the constituency of the Assembly as is included in a ward or a village shall be the list of voters for such ward or village. It is clear from the provisions of this Sub-section (1) that a separate list of voters for the Panchayat election is not intended to be prepared (2) that the list of voters prepared for the Assembly election would be the list of voters for the Panchayat election and (3) that the list of voters prepared for the constituency for the purposes of the Assembly election would be the list of voters for such part of the constituency of the Assembly as is included in a ward or a village. In other words the list of voters for Assembly election of a constituency in this case the constituency of Halol would be the list of voters for that part of the constituency for the Assembly election in which the village Shivrajpur is included and it is that list which is made conclusive under Sub-section (3) of Section 13 of the Act. Under sub-sec(2) of Section 12 an officer designated by the Collector is directed to maintain a list of voters for each such ward or village. It will be noticed that Sub-section (2) of Section 12 does not direct such an officer to prepare a list of voters. The directing therein contained so far as he is concerned is to maintain a list of voters for each such ward or village This must mean that the officer designated by the Collector has to maintain a list of visitors of such village from the list of voters for such part of the constituency of the Assembly as is included in the ward or the village. It would thus seem that as such list of voters is made conclusive under Section 13(3) no objection to an inclusion of a wrong person or persons in the list of voters can be taken under this Act and no Court can take cognizance of such a complaint. It would also appear that if a wrong person is included in such a list the objector has to have his name removed from the list of voters for the Assembly election and he would have to have resort to the provisions of the Representation of the People Act 1950 or the rules made thereunder. We are fortified in this construction of these two sections by two facts(1) that the list of voters for the Panchayat election is the same as that for the Assembly election so far as that part of the constituency in which the village concerned is included and (2) neither the Act nor the rules made thereunder make any provision for the alteration revision or amendment of the list of voters prepared by the officer designated by the Collector under Sub-section (2) of Section 12 and the list so prepared under Section 12(2) is made conclusive under Section 13(3). This conclusion is also fortified by the language used in Rule 3 of the Election Rules 1959 which provides that the officer designated by the Collector under Section 12(2) of the Act shall maintain a list of voters of each ward of the village which shall contain the names of all persons who are enrolled as voters in the electoral roll of the Bombay Legislative Assembly from that part of the constituency of the Assembly as is included in each such ward. It would seem from the language used in this rule that while making the list under Section 12(2) of the Act the officer concerned would have no power to subtract or add to the names of persons who are enrolled as voters in the list of voters for the Legislative Assembly from that part of the constituency of the Assembly as is included in each such ward or village.

6. But Mr. Shah submitted that the word village as used in Section 12 must mean a village as notified under Section 4 of the Act and therefore if a portion of any village or the residents of such portion are wrongly included in another village notified under Section 4 of the Act that portion not being part of the latter village as declared under Section 4 the list of voters of that latter village prepared under Section 12(2) would not be the lawful list of voters for that village. We are in agreement with Mr. Shah that the word village used in Section 12 must mean a village notified under Section 4 of the Act but for the rest of his contention we find there is a dear fallacy. The key words in Section 12(1) are the words as is included in a ward or a village. This expression means and must mean that the list of voters for an Assembly election for such part of the constituency in which the village is included would be the list of voters for the purposes of a Panchayat election of the village which is notified as such under Section 4 of the Act. In this case therefore the list of voters for that part of Halol constituency in which the two villages namely Shivrajpur village site and mines area are included would be the list of voters for the respective Panchayat elections of the two villages. In that view the list of voters having been made conclusive by Sub-section (3) of Section 13 the petitioners would not be entitled to challenge that list of voters and the names of these 125 persons being in that list it cannot be disputed that they were entitled to vote by virtue of Sub-section (1) of Section 13 until their names were removed by a suitable proceeding from the list of voters for the Assembly election for Halol constituency. We may in this connection usefully cite the decision in B.M. Ramaswamy v. B.M. Krishnamurthy and Ors. where the Supreme Court interpreted Sections 9 and 10 of the Mysore Village Panchayats and Local Boards Act 10 of 1959. Section 9 of that Act provided as Section 12 of the Act under consideration does that: