Sumangli Devi v. State Of Bihar — 1964 DIGILAW 166 (PAT)

Judgment Untwalia, J. 1. In this case, as in several others of the like nature, the petitioner has challenged the vires of the Bihar Panchayat Raj (Amendment) Ordinance, 1963, amending certain provisions of the Bihar Panchayat Raj Act, 1947 (Bihar Act 7 of 1948) and the amendments made in the Bihar Panchayat Election Rules, 1959 , hereinafter, respectively, called the Ordinance, the Act and the Rules. It may be stated here that the Ordinance, which was promulgated on the 30th August, 1963, has been repealed and replaced by the Bihar Panchayat Raj (Amendment) Act, 1963 (Bihar Act XVI of 1963) published in an Extraordinary issue of the Bihar Gazette, dated 19th October, 1963. 2. Sections 4 and 5 of the Act, as it stood prior to the impugned amendment, read: "4.... 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 shall continue to be members of the Gram Panchayat, until they the or cease to reside in such village or 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 1860); or (d) has been sentenced for an offence involving moral turpitude; Provided that the disqualification under Clause (o) 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 he 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 Grain Panchayat has been established or at any time thereafter during which he claims to be member, of the Gram Panchayat. 5... 5... .(1) On the first establishment of the Gram Panchayat, the prescribed authority shall cause to be prepared a register in the prescribed form of persons ordinarily residing within the local limits of the jurisdiction of the Gram Panchayat, and such register shall, among other things, contain the names of persons entitled under the provisions of Sec. 4 to be members of the Gram Panchayat on the date of its establishment. (2) The persons entered in the register aforesaid by the prescribed authority as members shall be the first members of the Gram Panchayat and this register shall be revised from time to time in such manner as may be prescribed". Under Section 80 of the Act, the State Government is authorised to make rules for carrying out the purposes of the Act and, in particular, such rules could provide under Clause (b) of Sub-section (2) "the manner in which the register under Sub-section (2) of Sec. 5 shall be revised". Under the Rules, as they stood prior to the amendment notified by Notification Nos. 10327, dated 26-8-1963 and 14133, dated 1-11-1963, the manner of preparation of a register of residents in respect of a Panchayat and the voters list was provided for in Rules 5 and 6 of the Rules. The procedure for revising the register of residents and the voters list of a Gram Panchayat was prescribed in Rules 7 to 13. By the Ordinance, in place of the old Sec. 4 of the Act, the following section was substituted, namely,-- "Every Grain Panchayat shall consist of all persons enrolled as electors in so much of the electoral roll or rolls of an Assembly Constituency of the State of Bihar, for the time being in force, as related to the local areas comprised within the limits of the Gram Panchayat". Section 5 has been omitted and the words extracted above from Clause (b) of Sub-section (2) of Section 80 have also been omitted. By the amendment of the Rules, Rules 6 to 12 have been omitted and Rules 5 and 13 have been amended in order to give effect to the amendment made in the Act by the Ordinance. Section 5 has been omitted and the words extracted above from Clause (b) of Sub-section (2) of Section 80 have also been omitted. By the amendment of the Rules, Rules 6 to 12 have been omitted and Rules 5 and 13 have been amended in order to give effect to the amendment made in the Act by the Ordinance. They now read 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 that 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 the 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. (3) No person shall be a voter from more than one Panchayat". "13. (1) One copy of the electoral roll of the Assembly Constituency appertaining to a Panchayat, hereinafter called the voters list, shall be kept hung, for the period between the date of publication of the election programme under Rule 17 and the date of receiving nomination papers under Rule 18, on the notice boards of the following offices, namely: (i) Office of the Panchayat; (ii) Office of the Block Development Officer, Circle Officer or Project Executive Officer, as the case may be; and (iii) Election officers office. (2) Any person shall be entitled to inspect the voters list and take extracts therefrom, free of charge during office hours. (3) Certified copies of voters list may be obtained by any person on payment of usual charges from the offices from where copies of the electoral roll of the Assembly Constituency are obtainable". 3. The petitioners case is that she is a permanent resident of village Jamsari within the jurisdiction of Jamsari Gram Panchayat in the district of Patna. (3) Certified copies of voters list may be obtained by any person on payment of usual charges from the offices from where copies of the electoral roll of the Assembly Constituency are obtainable". 3. The petitioners case is that she is a permanent resident of village Jamsari within the jurisdiction of Jamsari Gram Panchayat in the district of Patna. She was a voter entered in the register of voters of the said Gram Panchayat prepared and finally published in 1959 at the time of the previous election. The Elections Officer, respondent No. 3, published the programme on the 8th of November, 1963, for the filing of the nomination and the holding of the election in the Gram Panchayat on the expiry of the term of different office bearers. The village lies in Asthawan Assembly Constituency, and the electrol roll of that constituency which was prepared in 1961 was adopted for the election of the various office bearers of the Gram Panchayat in pursuance of the amendment brought about in the Act and the Rules. The said electoral roll was according to the petitioner, never published as required under the Bihar Panchayat Election Rules and there was no opportunity given to the residents of the Gram Panchayat to file claims to get the names of left out voters entered or to file objection with regard to the incorrect entries made in the voters list. The petitioner found that her name was not entered in that electoral roll and, therefore, she could not file her nomination paper for standing as a candidate for some office. On this ground alone, the amendment in the Act and the Rules has been challenged. 4. According to the counter-affidavit filed by respondent No. 6, the Assembly Constituency electoral roll was revised and amended from time to time in the years 1961, 1962 and 1963 and it was duly published after giving opportunities to the people concerned to file their objections for inclusion in, or exclusion from, that roll of any name. It has also been stated in this counteraffidavit that various steps for the election of the office bearers of the Gram Panchayat were taken according to the election programme and poll was also held on the 21st of December, 1963, but only the counting of the ballot papers and the declaration of the result were held up due to the filing of this writ application. A counter-affidavit has also been filed on behalf of the State of Bihar, respondent No. 1, wherein it has been stated that the electoral roll of the Asthawan Assembly Constituency appertaining to the Gram Panchayat in question is revised annually and ample opportunities are given to the general public including the members of the said Gram Panchayat for filing claims and objections. In the year 1963 also before holding the election of the Gram Panchayat an intensive verification of the electoral roll was made and published at different stages inviting claims and objections from the residents of the Gram Panchayat on the various dates mentioned in the counter-affidavit. In the months of March, July and September, 1963, steps for revision and publication of the electoral roll of the Assembly Constituency were taken. The facts aforesaid stated in the two counter-affidavits have not been denied by the petitioner by filing any affidavit-in-reply. The facts apart, I shall presently show that there is no substance in the argument put forward on behalf of the petitioner to assail the vires of the amendment in the Act and the Rules. 5. It would be noticed that under Sec. 4 of the Act, as it stood prior to the amendment, an adult ordinarily residing in the village or villages or part of a village, for which the Gram Panchayat has been established, was qualified to be a member and voter in the Gram Panchayat. The word adult has been defined in Clause (a) of Sec.2 to mean "a person, male or female, who has completed his or her twenty-first year of age". A cumbrous machinery involving heavy expenses had to be followed in every Gram Panchayat for the preparation of the register of members and voters, and there was no date specified with reference to which a person could be said to have completed his or her 21st year of age and become an adult. A cumbrous machinery involving heavy expenses had to be followed in every Gram Panchayat for the preparation of the register of members and voters, and there was no date specified with reference to which a person could be said to have completed his or her 21st year of age and become an adult. The amendment, to my mind, has been brought about in order to avoid the unnecessary expenses, complications and imperfections by providing in Sec. 4 of the Act itself that all persons enrolled as electors in 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 local areas comprised within the limits of the Gram Panchayat, shall be its members; that is to say, persons entitled to be registered in the electoral roll of the connected Assembly Constituency under Sec.19 of the Representation of the People Act, 1950 (Central Act 43 of 1950) and so entered in the electoral roll under the provisions of the said Act and the rules framed thereunder, shall be the members of the Gram Panchayat concerned. By amending Rules 5 and 13 and by omitting Rules 6 to 12 preparation of different registers of members and voters has been completely done away with. It would be noticed with reference to the provisions of Sections 14 to 20 of Act 43 of 1950, that the qualification for being a voter in the Assembly Constituency is, more or less, the same as was provided in Section 4 of the Act, as it stood, prior to the amendment. That being so, the more perfect, precise and thorough machinery provided in Sections 21 to 25 of Act 43 of 1950 and Rules 3 to 28, in Part II of the Registration of Electors Rules, 1960, for preparation and revision of electoral rolls, correction of entries in them and inclusion of names therein is better suited for determining the membership of the Gram Panchayat. 6. 6. Under the Rihar Municipal Elections and Election Petitions Rules framed under the Bihar and Orissa Municipal Act, similar provisions were made by amending the rules only, without amendment of the Act, by which under certain circumstances electoral roll of the connected Assembly Constituency for a particular municipality was adopted for the purposes of municipal election, although the requirement of the preparation of a separate electoral roll for the municipality was not completely done away with. In Deonandan Singh V/s. District Magistrate, Shahabad, M. J. G. No. 505 of 1964 decided by this Bench on 6th October, 1964 (Pat) it was pointed out: "..where the wards into which the municipality is divided for the purpose of elections of Commissioners are identical with the wards in which the particular Assembly Constituency is divided for the purpose of election to the Bihar Legislative Assembly, as admittedly is the case here, there is no conflict and difficulty in adopting so much of the electoral roll of the Assembly Constituency of the State of Bihar for the time being in force as relates to the local areas comprised within the limits of the Municipality to be the electoral roll for that Municipality for the purpose of elections of Municipal Commissioners and so much of the said electoral roll as appertain to a particular ward of the municipality to be the electoral roll of that ward". The adoption of the electoral roll of the Assembly Constituency in that case was held to be not only legal and valid but proper and desirable too. In the case in hand for the purposes of the election in the Gram Panchayat by amending the Act itself still better provisions have been made and, unlike the adoption of the electoral roll of the Assembly Constituency for the purposes of the municipal election only under certain circumstances, the electoral roll of the Assembly Constituency for the purposes of Gram Panchayat has been completely adopted, and the necessity of preparing a different electoral roll, has been done away with, I would, however, like to repeat the observations made in Deonandan Singhs case of the Arrah Municipality, M. J. C. No. 505 of 1964 decided on the 8th October 1964 (Pat). They are as follows. They are as follows. "It would be noticed with reference to the provisions of the Representation of the People Act, 1950, that correction of entries and inclusion of names in an electoral roll of an Assembly constituency can be made only with reference to the qualifying date which means the first day of January of the year in which the electoral roll has been prepared or revised; it is not permissible to have it so done with reference to any other date. For example, if the electoral roll was prepared or revised, say, in the year 1964, a person who was less than 21 years of age on the first day of January, 1964, cannot obviously get his name included in the electoral roll, say, in December, 1964, on attaining the age of 21 years by that time and, in my opinion, unless there is a general revision of the electoral roll in the year 1965, in accordance with the provision of Sub-section (2) of Sec.21 of Act 43 of 1950 and the Rules made thereunder, he cannot get his name included in the electoral roll finally published in 1964, even say, in January, 1965, with reference to the first day of January, 1965, as being the qualifying date, because that cannot be the qualifying date within the meaning of Clause (b) of Sec.14 if the electoral roll be not revised in 1965. In such a situation, it is obvious that many persons, who would be eligible to be registered as electors in the year 1985 with reference to the qualifying date of that year when there would be annual revision of the Assembly electoral roll of a particular constituency, will not be able to get their names entered in the electoral roll prepared, revised or published in the year 1964. If steps for holding Municipal elections in a Municipality will be taken, say, in the year 1965, without first taking steps for the revision of the Assembly Constituency electoral roll in that year, strictly speaking, legally, the electoral roll prepared, revised or published in the year 1964 will have to be adopted as the electoral roll under Rule 4 of the Rules, and that is bound to lead to anomalies inasmuch as persons who will be eligible to be voters on the 1st of January, 1965, will be debarred from exercising their right in the Municipal election held in that year. Such were the situation and an irregular attempt to solve it in the Sitamarhi Municipality case of Bishwanath Prasad V/s. Ramji Prasad Sinha, 1964 BLJR 465: ( AIR 1964 Pat 459 ). To avoid this, the authorities will be well advised to take and complete all fresh steps for holding the elections of the Commissioners in the Arrah Municipality, if possible, before the expiry of the current year 1964, on the basis of the revised and finally published electoral roll in the year 1964. If it is not possible to do so, it would be desirable to hold the election in the year 1965 after, first revising and finally publishing the Assembly Constituency electoral roll in that year". The said observations deserve notice mutatis mutandis for holding Gram Panchayat elections also. 7 In the case in hand, however, the election of Jamsari Gram Panchayat was held in the 1963, as appears from the statements made in the counter-affidavits filed on behalf of the State of Bihar and respondent No. 6, after first revising and publishing the electoral roll of the Assembly Constituency concerned in accordance with the provisions of the Representation of the People Act, 1950, and the Registration of Electors Rules, 1960. That being so, it must be held that the election was not illegal or void on the ground of the alleged invalidity of the amendment brought about in the Act and the Rules by the Ordinance and the amending Rules, the vires of which was challenged merely on the ground that no fresh voters list was prepared, revised or published for the Gram Panchayat. If the petitioner so desires, she could have taken steps for getting her name registered in the electoral roll of the Assembly Constituency under Sec.23 of Act 43 of 1950. If the petitioner so desires, she could have taken steps for getting her name registered in the electoral roll of the Assembly Constituency under Sec.23 of Act 43 of 1950. She having failed to do so cannot be allowed to make a grievance on the ground of ignorance of law, as was feebly suggested during the course of argument by her learned counsel. 8. On behalf of the petitioner, reliance was placed upon the decision of the Supreme Court in Chief Commissioner of Ajmer V/s. Radhey Shyam Dani, AIR 1957 SC 304 . In my opinion that case is quite distinguishable, and the ratio of the decision does not help the petitioner. The relevant provisions of the Ajmer Merwara Municipalities Regulation 1925 and the Ajmer State Municipalities Election Rules, 1956, which fail to be considered by the Supreme Court were Sections 30 and 43 of the Regulation and Rules 7 and 9 of the Rules. The provisions of Sec.30(2) of the Regulation were amended in 1950. But the impugned amendment did not eliminate the further steps in the matter of revision of the electoral roll of the municipality as also the adjudication of claims to be enrolled therein and objections to such enrolment. Bhagwati, J., delivering the judgment on behalf of the Court, has stated: "The amendment did not obviate the necessity of taking these further steps in spite of the electoral roll for the Parliamentary Constituency being treated as the electoral roll of the Municipality. By thus treating the electoral roll for the Parliamentary Constituency as the basis for the electoral roll of the municipality, the trouble and expenses involved in the preparation of the electoral roll for the Municipality were saved but the Municipality was not absolved from the obligation of providing for the revision of such electoral roll as well as the adjudication of claims to be enrolled therein and objections to such enrolment. 8. When the Ajmer State Municipalities Election Rules, 1955 came to be framed in exercise of the power conferred by Sec. 43 of the Regulation, the Chief Commissioner framed Rule 7 which provided that the electoral roll for the particular Municipality shall be the same as the final printed roll for the Parliamentary Constituency representing the area covered by the Municipality. He dispensed with the independent preparation by the Municipality of the electoral roll but did nothing further. He dispensed with the independent preparation by the Municipality of the electoral roll but did nothing further. Rule 9 provided that no person shall be deemed to be an elector for the purpose of the Rules unless his name appeared in the electoral rolls mentioned above. That had reference obviously to the second condition prescribed in Sec.30, Sub-section (2) of the Regulation but did not go far enough. It did not say that a person whose name appeared in the electoral rolls for the Parliamentary Constituency was to be deemed to be an elector for the purposes of the Rules so as to obviate the necessity of fulfilling the first condition therein prescribed and rightly so, because, if it did say so, it would be in conflict with Sec.30, Sub-section (2) of the Regulation. These Rules did not eliminate the scrutiny which could be made at the instance of the parties concerned as to whether a person whose name was registered in the electoral roll for the Parliamentary Constituency was in fact entitled under the Representation of the People Act, 1950 (XLIII of 1950) to be so registered and whether he possessed the qualifications prescribed in that Act in this behalf nor did they eliminate the further scrutiny for the purpose of the revision of such electoral roll or the adjudication of claims to be enrolled therein and objections to such enrolment". In such a situation, it was held by the Supreme Court: "It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned. It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective." 9. In the instant case, the amendment has obviated the necessity of taking any step in the matter of preparation of a separate electoral roll of the Gram Panchayat. The difficulties and anomalies with which their Lordships of the Supreme Court were faced in the case aforesaid arc not present here. In my judgment, therefore, the decision of the Supreme Court in the case of the Chief Commissioner of Ajmer, AIR 1957 SC 304 instead of helping the petitioner, in principle, lends support to the view I have expressed above. 10. In Ramji Mahton V/s. State of Bihar, M. J. C. No. 336 of 1964 dated 8-9-1964 (Pat) Mahapatra, J. sitting singly, overruled the objection made on behalf of the petitioner in that case that the Ordinance amending certain provisions of the Act and the amendment of some rules in the Rules were invalid and ultra vires. 11. In the result, the application of the petitioner filed under Articles 226 and 227 of the Constitution of India fails and is dismissed, but, on the facts and in the circumstances of the case. I would make no order as to cost. Ramaswami, J. 12 I agree.