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1962 DIGILAW 102 (PAT)

Baidyanath Thakur v. Sachidanand Pandey

1962-11-02

N.L.UNTWALIA, V.RAMASWAMI

body1962
Judgment 1. In this case the petitioner Baidyanath Thakur has obtained a rule from the High Court calling upon the respondents to show cause why the order of the Additional District Magistrate of Saharsa, dated the 14th November, 1960, should not be set aside by the High Court under Article 227 of the Constitution, 2. Cause has been shown by the respondents to whom notice of the rule was ordered to be given. 3. It appears that the petitioner was elected as a Mukhiya of Bihar Gram Panchayat in the district of Saharsa by an election which was conducted on the 3rd and 4th of August, 1960. Respondent No. 1 filed an election petition under Rule 72 of the Gram Panchayat Election Rules and the election petition was allowed by the Additional District Magistrate of Saharsa on the ground that nomination paper of respondent No. 1 was improperly rejected by the Elections Officer under Rule 23(2) (1) of the Gram Panchayat Election Rules because his age was below 25 years. 4. On behalf of the petitioner it was submitted by learned Counsel that the Additional District Magistrate has committed an error of law in holding that in making scrutiny of the nomination paper of respondent No. 1 the Elections Officer should have made reference only to the particulars entered in the finally published voters list in form B and should not have taken into account the entry in the school register of the P. H. E. School, Panchagachia, with regard to the age of respondent No. 1. In our opinion the argument put forward on behalf of the petitioner is well founded and must be accepted as correct. Section 79 of the Bihar Panchayat Raj Act deals with the disqualifications of a person who seeks election, nomination or appointment as a Mukhiya of the Gram Panchayat. Section 79(d) is to the following effect: "79 Disqualifications of Mukhiya, member of Executive Committee, Sarpanch, Panch, etc. Section 79 of the Bihar Panchayat Raj Act deals with the disqualifications of a person who seeks election, nomination or appointment as a Mukhiya of the Gram Panchayat. Section 79(d) is to the following effect: "79 Disqualifications of Mukhiya, member of Executive Committee, Sarpanch, Panch, etc. -- Notwithstanding any thing contained in this Act, a person shall be disqualified for election, nomination or appointment as a mukhiya, member of the Executive Committee, Sarpanch, or Panch If such person- x x x x x x x x x x x (d) is under twenty-five years of age." Rule 21 (2) of the Bihar Panchayat Election Rules states that "any person entitled to vote under these rules, and who is not subject to any disqualification under Sec. 4 or Section 79 or Sub-rule (1) shall be qualified for filing nomination paper for being elected as a Mukhiya or member of the Executive Committee or Sarpanch or Panch." Rule 23(2) provides that "the Elections Officer shall then examine the nomination papers and shall decide all objections which may be made at the time to any nomination and may, either on such objection or on his own motion after such summary enquiry, if any, as he thinks necessary, reject any nomination paper on any of the following grounds, namely, (i) that the candidate is disqualified from being chosen to fill the vacancy under Sec. 4 or Section 79 or Sub-rule (1) of Rule 21......". It is manifest upon an interpretation of these statutory provisions that the Elections Officer is charged with the duty of deciding the objection made to a nomination paper on the ground that the candidate is disqualified from being chosen to fill the vacancy under Section 79 of the Bihar Panchayat Raj Act. It is manifest that If an objection is raised before the Elections Officer that, the candidate is disqualified because he is below 25 years of age, it is the duty of the Elections Officer to decide the objection after taking any relevant evidence or material produced by the parties. On behalf of the respondents It was contended that the entry of the date of birth in the electoral roll as finally published is conclusive and it is not open to the Elections Officer to look into any other evidence in support of the objection taken to the nomination of any candidate for election as Mukhiya. On behalf of the respondents It was contended that the entry of the date of birth in the electoral roll as finally published is conclusive and it is not open to the Elections Officer to look into any other evidence in support of the objection taken to the nomination of any candidate for election as Mukhiya. We do not think that there is any warrant for this argument. Reference was made on behalf of the respondents to Rule 13 of the Bihar Panchayat Election Rules which states as follows: "13. (1) The register and the voters list after they have been amended in accordance with the decision of the Elections Officer under Rule 11, shall be signed by him and then published finally at the office of the Block Development Officer, Anchal Adhikari, Circle Officer or Project Executive Officer. The voters list as finally published, shall be open to inspection between 10.30 a.m. and 4.30 p.m. at the said office for a period of one week after the date of final publication and any person shall be entitled to take extracts therefrom free of charge. No person, other than the person whose name is entered in the register and the voters list, shall have the right to vote. (2) The register as finally published under Sub-rule (1) shall not be altered except as provided in Rule 7." But we do not consider that the provisions of the rule preclude the Elections Officer from looking Into any evidence in support of the objection raised to the nomination of a candidate at the time of scrutinising the nomination paper under Rule 23 of the Bihar Panchayat Election Rules. In this context reference should be made to the provisions of Sec. 4 of the Bihar Panchayat Raj Act which deals with membership of Gram Panchayat. This section states as follows: "4. In this context reference should be made to the provisions of Sec. 4 of the Bihar Panchayat Raj Act which deals with membership of Gram Panchayat. This section states as follows: "4. Membership of Gram Panchayat -- Every Gram Panchayat shall consist of all adults ordinarily residing In the village or villages or part of a village for which the Gram Panchayat has been established, and they shaft continue to be members of the Gram Panchayat, until they die or cease to reside in such villages or incur any one of the following disqualifications, that is, if he or she-- (a) is of unsound mind; or (b) is an undischarged insolvent; or (c) is convicted of an election offence under Chapter IXA of the Indian Penal Code (45 of I860); or (d) has been sentenced for an offence involving moral turpitude: Provided that the disqualification under Clause (c) or Clause (d) may be removed by an order of the Government or of the prescribed authority. Explanation:- - For the purposes of this section, a person shall be deemed to have acquired the qualification of residence, if tie dwelt in a building or part of a building situated within the village for not less than one hundred and eighty days in the aggregate during a calendar year immediately preceding the date on which the Gram Panchayat has been established or at any time thereafter during which he claims to be a member of the Gram Panchayat" Sec.2 (a) of the Act defines "adult" to mean "a person, male or female, who has completed his or her twenty-first year of age." Rule 5(2) goes on to provide that "from the register of residents, the Elections Officer shall cause to be prepared voters list in form B for each ward separately containing particulars of persons qualified to be members of the Panchayat under Sec. 4 and entitled to vote at elections held under these rules." Reading, therefore, the language of Rule 13 of the Bihar Panchayat Election Rules in the context of Rule 5(2) and Sections 4 and 2(a) off the Bihar Panchayat Raj Act it appears that the finality of the voters list as mentioned in Rule 13 has reference only to the entry of membership of Gram Panchayat and has no bearing on the disqualifications imposed upon a candidate for election as a Mukhiya under Section 79 of the Bihar Panchayat Raj Act. It follows, therefore, that file Additional District Magistrate of Saharsa was erroneous in holding that the Elections Officer was not entitled to look at the entry in the School register of P. H. E. School, Panchagachia, for finding (out the age of respondent No. 1. In support of his decision the Additional District Magistrate has referred to the decision of a learned Single Judge of this High Court in Siasaran Singh V/s. Election Tribunal, 1961 BLJR 14. But for the reasons we have already given we think that this case has not been correctly decided and it must, therefore, be overruled. 5 For the reasons we have already expressed we hold that this application must be allowed and the order of the Additional District Magistrate of Saharsa acting as the Election Tribunal under Rule 79 of the Bihar Panchayat Election Rules, dated the 14th November, 1960 should be set aside. 6. We accordingly allow this application. 5 For the reasons we have already expressed we hold that this application must be allowed and the order of the Additional District Magistrate of Saharsa acting as the Election Tribunal under Rule 79 of the Bihar Panchayat Election Rules, dated the 14th November, 1960 should be set aside. 6. We accordingly allow this application. There will be no order as to costs.