Girish Chandra v. Third Additional District Judge — 1985 DIGILAW 1025 (ALL)

JUDGMENT S.D. Agarwala, J. - This is a petition Under Article 226 of the Constitution of India directed against the order dated 7th September, 1983, passed by third Additional District Judge, Pilibhit, in a revision u/s 12C of the U.P. Panchayat Raj Act, 1947, setting aside the election of the Petitioner, who was elected as Pradhan of the Gaon Sabha 81 Grant No. 21 alias Dhakka Chaut, pargana and tahsil Pooranpur, district Pilibhit. 2. On 3rd June, 1982, the Petitioner was declared duly elected to the office of the Pradhan of the above mentioned Gaon Sabha defeating Respondent Nos. 2 to 6. Mohammad Hasan, Respondent No. 2, filed an election petition before the Sub Divisional Officer/Prescribed Authority, Pooranpur, Pilibhit, u/s 12C of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act). The petition was filed on a number of grounds. One of the grounds taken by Respondent No. 2 was that the Petitioner's name was wrongly included in the Electoral Roll of the said Gaon Sabha and, for that reason, his nomination paper was invalid. 3. The petition was contested by the Petitioner. By an order dated 22nd March, 1983, the Sub Divisional Officer, Pooranpur, Pilibhit, dismissed the election petition. The Prescribed Authority held, inter alia, that no corrupt practice was adopted during the election. The other points raised by the Respondent No. 2 challenging the election were also decided against the Respondent No. 2. The Prescribed Authority, in particular, held that the Petitioner's name rightly appeared in the Voters' List and that the election could not be challenged on that ground also. 4. Aggrieved by that decision, a revision was filed u/s 120(6) of the Act before the District Judge. In revision, the order of the Prescribed Authority was challenged on two grounds, firstly, it was argued that u/s 12C(7), the Petitioner whose name appeared in the voters list of the Naaar Palika, Pilibhit, could not have been shown as a member of the concerned Gaon Sabha and, as such, he was not competent to contest the election, and, secondly, that the Petitioner had adopted corrupt practice and disturbed the polling booth during the voting. 5. 5. The revisional court upheld the findings recorded by the Prescribed Authority that no corrupt practice was adopted by the Petitioner, as urged by the Respondent No. 2 The revisional court, however, on the first contention raised by the Respondent No. 2, held that the Petitioner was wrongly entered in the voters list because he was not entitled to be registered in the eleAoral roll of the Gaon Sabha concerned because his name was entered in the electoral roll pertaining to ward No. 14 of Nagar Palika, Pilibhit, and that he had failed to show that his name had been struck off from the said electoral roll. Having given this finding, the revisional court further held that the Petitioner was not entitled to be a candidate for election of the Pradhan and, as such, the result of the election was materially affected. After recording this finding, the election of the Petitioner was set aside by order dated 7th September, 1983, which has been impugned in the present writ petition, as mentioned earlier. 6. Learned Counsel for the Petitioner has urged that it was not open to the Prescribed Authority or the revisional court u/s 12C of the Act to go behind the electoral roll and enquire into the question as to whether the Petitioner was validly included in the electoral roll of the Gaon Sabha or not. It was further urged by the learned Counsel that under the provisions of Section 12C of the Act, the election of Pradhan of a Gaon Sabha could not be challenged on the ground that the name of a candidate has been wrongly included in the electoral roll of the Gaon Sabha prepared under the provisions of the Act and the rules framed there under. 7. In order to consider the first submission raised by the learned Counsel for the Petitioner, it is necessary to examine the various provisions of the Act by virtue of which the electoral roll of the Gaon Sabha is prepared. 8. Section 9 of the Act provides that electoral roll for every Gaon Sabha shall be prepared in accordance with the provisions of the Act, under the supervision of the Nirvachan Nideshak (Panchayat) by an Electoral Registration Officer who shall be such officer of the State Government as the State Government may designate or nominate in this behalf. 8. Section 9 of the Act provides that electoral roll for every Gaon Sabha shall be prepared in accordance with the provisions of the Act, under the supervision of the Nirvachan Nideshak (Panchayat) by an Electoral Registration Officer who shall be such officer of the State Government as the State Government may designate or nominate in this behalf. This Section further provides that the Electoral Registration Officer shall, prepare and publish such electoral roll in the manner prescribed, and upon its publication, it shall, subject to any alteration, addition or modification made under or in accordance with this Act, be the electoral roll for the Gaon Sabha prepared in accordance with the provisions of the Ace for the purposes of the election. Sub-section (3) of Section 9 of the Act provides that a person who has attained the age of 18 years and who is ordinarily a resident in the area of the Gaon Sabha, shall be entitled to be registered in the electoral roll. Sub-section (4) of Section 9 of the Act provides certain disqualifications for registration. Sub-section (7), which is relevant for the purposes of this case, is in the following terms: 9 (7). No person shall be entitled to be registered in the electoral roll for any Gaon Sabha, if his name is entered in any electoral roll pertaining to any city, municipality, notified area, cantonment or town area unless he shows that his name has been struck off such electoral roll. 9. Sub-section (8) of Section 9 of the Act entitles an Electoral Registration Officer to correct, delete or add in the electoral roll, either suo motu or on an application made to him. Sub-section (10) gives a right of appeal to a person aggrieved to the District Magistrate against the order of the Electoral Registration Officer in regard to inclusion, deletion or correction of name in the Gaon Sabha electoral roll. Sub-section (11) empowers the State Government to make provisions in regard to the matters specified therein. Sub-section (12) is very significant. It provides as under: 9(12). Sub-section (11) empowers the State Government to make provisions in regard to the matters specified therein. Sub-section (12) is very significant. It provides as under: 9(12). No civil court shall have jurisdiction-fa) to entertain or adiudicate upon the question whether any person is or is not entitled to be registered in an electoral roll for a Gaon Sabha, or (b) to question the legality of any action taken by or under the authority of an Electoral Registration Officer, or of any decision given by an appellate authority under Sub-section (10) or any authority appointed under this Act for the revision of any such roll. 10. From an analysis of the various Sub-sections of Section 9 of the Act, it is apparent that if the name of any person lias been wrongly included in the electoral roll of the Gaon Sabha, a specific remedy has been provided to a person aggrieved to challenge the said inclusion. The electoral roll has been given finality and the Civil Court has been debarred from entertaining or adiudicating upon the question whether any person is or is not entitled to be registered in an electoral roll for a Gaon Sabha. 11. u/s 9(1) of the Act, the Uttar Pradesh Gaon Sabha Registration of Electorals Order, 1978, has been issued by the Governor of Uttar Pradesh. This Order lays down the manner in which the electoral roll has to be prepared. Clause 10(b) of this Order provides that any person in the roll on the ground that he is not qualified or has been disqualified to be registered in such roll may apply to the Electoral Registration Officer for correction. The order further contemplates that after all the objections to the electoral roll have been disposed of, the final electoral roll has to be published in accordance with Clause 10 of the order. Clause 25 of the order lays down the manner in which an appeal can be filed from any decision of an Electoral Registration Officer. The right of appeal has been given u/s 9(10) of the Act. 12. On an analysis of the various provisions of the Act and the U.P. Gaon Sabha Registration of Electors Order, 1978, it is clear that the provisions are a complete Code by themselves, laying down the manner in which the electoral roll has to be prepared, the manner in which the said electoral roll can be challenged. 12. On an analysis of the various provisions of the Act and the U.P. Gaon Sabha Registration of Electors Order, 1978, it is clear that the provisions are a complete Code by themselves, laying down the manner in which the electoral roll has to be prepared, the manner in which the said electoral roll can be challenged. Finality has also been given to the electoral roll. When the Act and the order is a complete Code by itself, I have to consider as to whether the validity of the inclusion of the name of the Petitioner in the electoral roll can be challenged in an election petition or not. It is pertinent to mention here that the election of the Petitioner has been challenged on the ground mentioned in Section 9(7) of the Act which provides that no person shall be entitled to be registered in the electoral roll for any Gaon Sabha if his name is entered in any electoral roll pertaining to any local body. From form 4 of the Uttar Pradesh Gaon Sabha Registration of Electors Order, 1978, it is apparent that this objection could have been taken by the Respondent No. 2 before the Electoral Registration Officer. He did not at that stage take any objection to the name of the Petitioner being included in the electoral roll of the Gaon Sabha and for the first time he raised an objection by means of an election petition u/s 12C of the Act. 13. In B.M. Ramaswamy Vs. B.M. Krishnamurthy and Others, AIR 1963 SC 458 , the dispute in regard to the election to the Panchayat under the provisions of the Mysore village Panchayat and Local Boards Act, 1959 came up for consideration. In this case, the question arose as to whether if the name of any person included in the electoral roll was wrongly included, then can the said question be canvassed in an election petition filed under the Act. The electoral roll in the said case had been prepared under the provisions of Representation of People Act, 1950. Section 30 of this Act bars the jurisdiction of the civil court to question the legality of any action taken by or under the authority of the Electoral Registration Officer. The electoral roll in the said case had been prepared under the provisions of Representation of People Act, 1950. Section 30 of this Act bars the jurisdiction of the civil court to question the legality of any action taken by or under the authority of the Electoral Registration Officer. The Supreme Court in view of this provision held that the voters list is final and as such it cannot be challenged by means of an election petition under the Act. A similar question again arose in Kabul Singh Vs. Kundan Singh and Others, AIR 1970 SC 340 . The question whether it was open to a person to challenge the fact whether any person is or is not entitled to register himself in the electoral roll, in the election petition was examined by the Supreme Court in detail. In view of the provisions of Section 30 of the Representation of People Act, 1950 where the civil court's jurisdiction had been barred the Supreme Court came to the conclusion that the entries found in the electoral roll are not open to challenge either before the civil court or before a Tribunal which consider the validity of any election. This view was arrived at after the Supreme Court recorded a finding that the provisions of 1950 Act mentioned above form a complete Code by itself in the matter of preparation and maintenance of electoral roll. 14. This question again arose in Rampakavi Rayappa Belagali Vs. B.D. Jatti and Others, AIR 1971 SC 1348 , and it was opined by the Supreme Court as follows: The entire scheme of 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 some question of violation of the provisions of the Constitution is involved. 15. In this case an additional ground on which the Supreme Court said that the entry in the electoral roll cannot be challenged, was on an interpreta tion of Section 100 of the Representation of People Act, 1951. 15. In this case an additional ground on which the Supreme Court said that the entry in the electoral roll cannot be challenged, was on an interpreta tion of Section 100 of the Representation of People Act, 1951. The Supreme Court relied upon Section 100 Sub-clause (1)(d)(iv) of Representation of People Act which is as follows: (iv) by any non-compliance with the provisions of the Constitution or of the Act or of any Rule or Order made under this Act. 16. The Supreme Court was of the view that the ground of election petition can be a violation of the provisions of 1951 Act. As the words 'this Act' have been used in Clause (iv), it excluded the 1950 Act which lays down the manner and preparation of the electoral roll. 17. In Shri Shreewant Kumar Choudhary Vs. Shri Baidyanath Panjiar, AIR 1973 SC 717 , tie Hon'ble Supreme Court again took the view that it is not open in an election petition to go behind the electoral roll and enquire into the question whether the names of persons included therein were legal or not. This decision was taken after reliance was placed on the earlier decisions mentioned by me. In vie.v of the above, I am of the opinion that though in the U.P. Panchayat Raj Act, 1947, challenges to the provisions relating to preparation of electoral roll have not been specifically excluded as has been done in the case of the Representation of People Act, 1951, but in view of the fact that Section 9 of the Act read with the provisions of the U.P. Gaon Sabha Registration of Electoral Orders, 1978 are a complete code by themselves in the matter of preparation and maintenance of electoral rolls and as the entries found in the electoral roll are final, they cannot be a subject of challenge in an election petition filed u/s 12C of the Act. 18. It is, however, clarified that the entries in the electoral roll can only be subject of challenge u/s 12C (1)(b)(ii) of the Act where officer on whom the duty has been cast to prepare the rolls grossly fails to comply with the vet and the Rules, as is being discussed in detail while examining the second contention. 19. 18. It is, however, clarified that the entries in the electoral roll can only be subject of challenge u/s 12C (1)(b)(ii) of the Act where officer on whom the duty has been cast to prepare the rolls grossly fails to comply with the vet and the Rules, as is being discussed in detail while examining the second contention. 19. In regard to the second submission made by the learned Counsel, it is necessary to quote Section 12C(1) of the Act which reads as under: 12C. Application for questioning the elections (1) The election of a person as Pradhan of a Gaon Sabha or as member of a Gaon Panchayat including the election of a person appointed as the Panch of the Nyaya Panchayat u/s 43 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the ground that the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or that the result of the election has been materially affected (i) by the improper acceptance or reiection of any nomination ; or (ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder. (2).... 20. Under Clause (a) quoted above the election can be challenged on the ground that it was not a free election by reason that the corrupt practice of bribery or undue influence has exteusively prevailed at the election. The words "bribery1' "undue influence" have been explained categorically in Sub-section (2)(a) and (b) of the Act. Under Clause (b) election can be set aside also on tie ground that the result of the election has been materially affected by improper acceptance or rejection of any nomination paper, or by gross failure to comply with the provisions of this Act or Rules framed thereunder. Chapter I-E of the Rules lays down the procedure for election of Pradhan and Up-Pradhan. Rule 20G has made the provisions of Rules 18A, 18B and 1 >-C of Chapter ID applicable to the election of Pradhan and Up-Pradhan. Rule 18B(2) provides the ground on which the Nirvachan Adhikari may reject any nomination paper. Chapter I-E of the Rules lays down the procedure for election of Pradhan and Up-Pradhan. Rule 20G has made the provisions of Rules 18A, 18B and 1 >-C of Chapter ID applicable to the election of Pradhan and Up-Pradhan. Rule 18B(2) provides the ground on which the Nirvachan Adhikari may reject any nomination paper. This rule is indicative of the fact that Under Clause (b)(i) what possible grounds can be taken when the result of the election is challenged on the ground of improper acceptance or rejection of any nomination. The counsel for the Respondent No. 2 has sought to bring Ins case under Clause (ii) of Clause (b), quoted above, namely, that by illegally including the name of the Petitioner in the electoral roll, there is a gross failure to comply with the provisions of the Act and the Rules. It is, consequently, necessary to interpret the provisions Of this Sub-clause. In this sub-clause, the significant words are "gross failure to comply". In Section 100 of the Representation of People Act, 1951, the election can be challenged on a similar ground, mentioned in Clause (iv) of Sub-clause (d) of Sub-section (1); which has already been quoted above. 21. In so far as the challenge under the provisions of Representation of People Act is concerned, a challenge can be for non-compliance with the provisions of the Constitution or of the Act or any Rule or Orders made under that Act. But here those words have not been used by the U.P. Legislature. Here, the challenge can be on the ground of "gross failure to comply" with the provisions of the Act or Rules framed thereunder. 22. In view of the above, the scope of challenge in a petition under the U.P. Panchayat Raj Act, 1947 is different from the scope of challenge under the provisions of the Representation of People Act, 1951. 23. From a reading of Section 12C of the Act and the Rules framed thereunder, framed for the election of the Pradhan and Up-Pradhan, it is clear that if an election is challenged on the ground mentioned in Clause (a) of Sub-section (1) of Section 12C of the Act, the words "bribery and undue influence" on the basis on which challenge can be made have been specifically defined. Similarly, if a challenge is made under Clause (b)(i) of Sub-section (I) of the said Section, then too, the Rules provide the circumstances under which improper acceptance or rejection of any nomination can be challenged, but it is significant that the Act and the Rules are silent when a challenge is made Under Clause (b)(ii) of Section 12C (1) of the Act. This has been left to the Election Tribunal to decide in the circumstances of each case as to whether there has been a gross failure to comply with the provisions of the Act or the Rules Iramed thereunder which has materially affected the result of the election. 24. It is, therefore, necessary to examine the scope of the expression "gross failure to comply" used in Clause (b)(ii) of Sub-section (1) of Section 12C of the Act. 25. The word 'comply' has been defined in Blacks Law Dictionary as meaning "to yield, to accommodate, or to adopt oneself, to act in accordance with". In the context in which this word has been used in this Sub-clause, the meaning to be given to the word 'comply' in my opinion, should be "to act in accordance with.". It is apparent that the Legislature used the word 'gross failure' and not merely 'failure'. A distinction has to be drawn between the words 'failure' and 'gross failure'. The use of the words gross indicates that it is a higher degree of failure. 26. In Manhelal v. Asstt. Registrar, Cooperative Societies, Narainghpur AIR 1970 M.P. a Division Bench of the Maahya Pradesh High Court, while interpreting the expression 'gross negligence held as under: There is a distinction between negligence and gross negligence, although the exact divising line is difficult to demarcate. "Gross negligence'' connotes higher degree of negligence, it is negligence not arising merely from some want of foresight or mistake of judgment but from some culpable default. In Corpus Juris Secundum, Volume 36, the meaning to be given to the word 'gross' when used as an adjective, has been stated as under: In one sense, the adjective has been defined as meaning beyond allowance, out of all measure ; hence culpable or great; flagrant, not to be excused, or shameful. In this sense, it has been held equivalent to "culpable". In this sense, it has been held equivalent to "culpable". In Black's Law Dictionary, the word 'gross' has also been defined as Under: Out of all measure ; beyond allowance; not to be excused; flagrant ', shameful; as a gross dereliction of duty; a gross injustice ; gross carelessness", Tn Corpus Juris Secumdum, Volume 35, the expression 'failure' has been defined as under: an Omission to perform a duty or appointed function ; and it is sometimes used in the sense of non-performance of a duty ; that is, as the equivalent of "neglect', and covers both intentional and unintentional non-performance. 27. On a consideration of the definitions of the words 'gross', 'failure' and 'comply', mentioned above, I am of the opinion that the words ' gross failure to comply ' should be interpreted to mean "flagrant omission to pertonn a duty in acccrdauce with the Act and the Rules framed thereunder whether that was intentional or unintentional. The mere technical non-compliance of the provisions of the Act and the Rules is not sufficient for challenging the election. 28. If an officer on whom the duty has been cast to conduct the election in accordence with the provisions of the Act and the Rules framed thereunder does not follow the same and acts in flagrant violation of the same and the Court is of the opinion that this omission to perform the duty by the officer has resulted in materially affecting the election, that can be a ground for challenge of the election. 29. In Bhagoley v. Balwant Singh 1963 ALJ 634, a Division Bench of this Court had an occasion to consider the scope of Clause (b)(ii) of Sub-section (1) of Section 12C of the Act. It observed as under; In cases where the Election Tribunal comes to the finding that the officer entrusted with the preparation of register of members had deliberately and intentionally framed that register incorrectly by adding names which should not fhvJ place in it or by omitting names which should legitimately be entered in it, it would clearly be a case where that officer would be guilty of gross failure to comply with the provisions of the Act. There would be, of course, cases where the inclusion of names in the register or omission of some names from it would be bona fide which would happen whenever the entries in the register are made by the officer concerned according to the information available to him at the time of preparation of the register. Even if it happens that some names are erroneously omitted or some erroneously entered, it would not be a case of failure on the part of the officer to comply with the provisions of the Act. 30. In view of the above dictum laid down by the Division Bench of this Court, it is clear that it is only when there is a gross failure to act in accordance with the Act and the Rules by the officer on whom the Legislature has cast a duty to conduct the elections then only the election can be challenged on the ground, mentioned in Clause (b)(ii) of Sub-section (1) of Section 12C of the Act. 31. So far as the present case is concerned, there was no gross failure on the part of the officer concerned to follow the rules nor there is any allegation to that effect. The only allegation is that the Petitioner should have pointed out that his name has been included in the electoral roll of any other body which he did not do. This cannot possibly be a ground, in my opinion, for challenging the election u/s 12C (1)(b)(ii) of the Act. The second submission made by the learned Counsel for the Petitioner, in my opinion, also is well founded. 32. In view of the above, I allow the petition and quash the order dated 7th September, 1983, passed by the 3rd Additional District Judge, Pilibhit. The Petitioner shall be deemed to be a validly elected Pradhan of the Gaon Sabha concerned. The parties are directed to bear their own costs.