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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 ?

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.

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."

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).