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1988 DIGILAW 310 (MP)

BABULAL v. S. D. O. , MANDSAUR

1988-12-16

A.G.QURESHI, S.K.DUBEY

body1988
S. K. DUBEY, J. ( 1 ) THE petitioner has presented this petition under Arts. 226 and 227 of the Constitution of India for quashing the order (Annexure 'd') dated 31-5-1983 passed by the Sub-Divisional Officer, Mandsaur, the authorised Officer, whereby the name of the petitioner at serial No. 114 of voters' list of Ward No. 9 of Gram Panchayat, Kachrod was ordered to be removed. ( 2 ) THE petitioner, in his petition, contended that he is, a permanent indent of village Kuchrod, Tehsil and District Mandsur (M. P. ). His name finds place in the voters' list for the Sitamau legislative constituency at serial no. 883, a copy of which is annexed as Annexure A. On 18-3-1980, the authorised Officer passed an order that the petitioner resides in village kuchrod in the legislative constituency of Sitamau and his name was included in the voters' list of Gram Panchayat, Kuchrod. One Rameshwar (respondent No. 2) raised an objection and submitted that the petitioner resides in Mandsaur. Hence his name be deleted. The Authorised Officer, i. e. the Sub-Divisional Officer, vide his order dated 26-4-1983, dismissed the objections under Rule 7 of the Madhya Pradesh Gram Panchayat Election and Co-option Rules, 1982 (hereinafter called the Rules ). Strangely, again the Authorised Officer served a notice to the petitioner and passed the impugned order dated 31-5-1983. ( 3 ) TO prove his contention that he is a permanent resident of village kuchrod, the petitioner filed rent receipts and other documents with the petition. The main contention of the petitioner is that once under Rule 8 of the Rules, the Authorised Officer decides the claim or objections and gives his decision in writing ; that decision becomes final and cannot be recalled, reviewed, varied or reversed thereafter. Learned counsel, Shri C. R. Joshi, for tke petitioner, placed reliance on Rule 8 (3) of the Rules and a Division beach decision of this Court in Balaram Hariram Kulambi v. Girdharilal tulsiram and others [1965 0 MPLJ 727]. Learned counsel for the petitioner also contended that temporarily moving from one place to another has no relevance within the meaning of "permanent resident". He placed reliance on the decision of the Apex Court in Smt. Shanno Devi v. Mangal Sain [ air 1961 SC 58 ]. Learned counsel for the petitioner also contended that temporarily moving from one place to another has no relevance within the meaning of "permanent resident". He placed reliance on the decision of the Apex Court in Smt. Shanno Devi v. Mangal Sain [ air 1961 SC 58 ]. He also relied on the case of Sarada Nair v. Vayankara amma and others [air 1957 Kerala 158] decided by the Kerala High Court, to emphasize the meaning of the words "ordinarily resides". ( 4 ) SHRI S. L. Jain, teamed Deputy Advocate General fop respondent no. 1 contended that the earlkr order dated 26-4-1983 (Annexure 'f')passed by the Authorised Officer was in relation to the voters' list of 1978 and the order dated 31-5-1983 (Annexure 'd) was in relation to the voters' list of 1983. Therefore, the Authorised Officer was well within his competence to pass the impugned order. ( 5 ) AFTER hearing the counsel for the parties, we are of the opinion that this petition deserves to be allowed. The State has not produced before us the record of the original case, whereby the name of the petitioner was ordered to be deleted from the voters' list of Gram Panchayat, Kuchrod. Originally, when the name of the petitioner was not included, the petitioner claimed for inclusion of his name in the voters' list of the Gram panchayat, Kuchrod. The Authorised Officer, after making an enquiry, passed an order on 18-3-1980 (Annexure 'e') whereby it was held that the petitioner ordinarily resides in village Kuchrod, as such, his name was ordered to be included in the voters' list. It was also not disputed that the petitioner's name finds place in the voters' list of the legislative assembly constituency of Sitamuu. Thereafter again, respondent No. 2 Rameshwar raised objections. After making an enquiry, the Authorised Officer passed an order (Annexure 'f') on 26-4-1983 holding that on the basis of the evidence produced and material on record, it is not possible to remove the name of the petitioner from the voters' list of Kuchrod. But strangely, within a period of one month, the said order was recalled and the petitioner's name was ordered to be removed from the voters' list of Gram panchayat Kuchrod, for want of evidence. But strangely, within a period of one month, the said order was recalled and the petitioner's name was ordered to be removed from the voters' list of Gram panchayat Kuchrod, for want of evidence. ( 6 ) SECTION 10 of the M. P. Panchayat Act, 1981 (hereinafter referred to as "the Act") lays down conditions about the registration of voters. Section 10 (1) (b) is relevant for our purpose, which provides that such a person should be ordinarily resident in a Gram Panchayat area within the meaning of Sect ion 20 of the Representation of the People Act, 1950 (No. 43 of 1950) subject to modification that reference to "constituency" therein were a reference to "gram Panchayat area". Section 10 (1) (c) lays down that such person should be otherwise qualified to be registered in the Legislative assembly electoral roll relatable to the Gram Panchayat area, then alone he shall be entitled to be registered in the list of voters of that gram Panchayat. Sub-clause (2) of Section 10 of the Act lays down that no person shall be entitled to be registered in the list of voters for more than one Gram Panchayat area. Sub-section (3) further lays down that no person shall be entitled to registered in the list of voters, if he is registered in the list of voters relating to any other local authority. Sub-section (4) provides that no person shall be entitled to be registered in the list of voters for any gram Panchayat area more than once. Voters' list is prepared under chapter III of the Rules. On publication of the list, under Rule 7 of the rules, claims and objections are preferred. Under Rule 8, claims and objections are disposed of after a summary enquiry by the Collector or the authorised Officer. Sub-rule (3) of Rule 8 provides that the decision of the collector or the Authorised Officer shall be final and the voters' list shall be amended in accordance with that decision. Sub-rule (4) of Rule 8 lays down that the voters' list so amended shall be final and a certified copy of the same duly signed by the Collector or the Authorised Officer shall be deposited in the office of t he Grampanchayat, if any, and the Collector or the authorised Officer. Sub-rule (4) of Rule 8 lays down that the voters' list so amended shall be final and a certified copy of the same duly signed by the Collector or the Authorised Officer shall be deposited in the office of t he Grampanchayat, if any, and the Collector or the authorised Officer. On the the basis of the provisions and the clear and unambiguous language of Rule 8 of the Rules, when once claims and objections arc decided and the voters' list is amended, the order of the collector or the Authorised Officer attains finality, which cannot be reviewed or recalled as no power is given under the statute to review or recall any order so passed. Rule 11 speaks of interim alterations, but Rule 11 also does not lay down such a power. ( 7 ) THE learned Deputy Advocate General appearing on behalf of the state, could not satisfy this Court by placing any material that the earlier order, which was passed on 26-4-1983 (Annexure 'f') related to the voters' list of 1978 nor it can be, because the first order, whereby the name of the petitioner was included in the voters' list was of the year 1980. Thereafter, again when objections were preferred by one Rameshwar, after an enquiry, the order was passed on 26-4-1983 holding that the name of the petitioner from the voters' list of 1983, cannot be removed. Surprisingly again, within a period of one month, the said order was reviewed. Such an order, in our opinion, could not have been passed by the Authorised Officer. The power to review was considered by this Court in the case of Balaram hariram Kulambi (supra) and after considering the relevant provisions of the Rules, this Court observed that after publication of the voters' list under rule 6 inviting claims and objections and fixing of dates for hearing and disposal, the claims and objections are received under Rule 7 either for actual removal or proposed listing of anybody as voter and all such objections arc disposed of under Rule 8. When once objections are decided and the decision is given, sub-rule (3) of Rule 8 says that the decision of the Collector or the Authorised Officer shall be final and each voters' list shall be amended in accordance with such decision. When once objections are decided and the decision is given, sub-rule (3) of Rule 8 says that the decision of the Collector or the Authorised Officer shall be final and each voters' list shall be amended in accordance with such decision. Though the word used here is "amended", this is the same as "revision" mentioned in Sections 5 and 318 (2) (i), Rule 9 concerns the inspection by the members of the public and issue to them of certified copies according to a prescribed tariff. Rule 10 uses the word "revision" and is to the effect that a list revised in accordance with Rule 8 (4) shall be in force until the next revision under the same rule. Rule 11 starts on a new topic, namely, interim alteration or correction of the voters' list from time to time on applications being made to the Collector or authorised Officer. Sub-rules (2) to (7) set out the modus operandi of such correction and end by providing that the corrected list shall be the valid list for the time being, but for obvious reasons of convenience, there will be no correction during a period of thirty days before any election. This Court in that case considered that under Rule 11, such correction cannot be made by the Collector or the Authorised Officer after reconsideration of any of the claims and objections, which have already been considered and disposed of, that too within a period of one month, over the same grounds, unless there is some fresh happening, or change of circumstances or any subsequent event. In that case, the justification would have been factual but as there is no justification of this sort in the present case, in our opinion, the Authorised Officer committed an error in reviewing his earlier order dated 26-4-1983 (Annexure 'f') on the same grounds, as the order bad attained finality and further no power is given either in the statute or in the rules to review the earlier order. It is trite law that unless the power to review is given by an statute, an authority or a Court has no power to review its earlier order. It is trite law that unless the power to review is given by an statute, an authority or a Court has no power to review its earlier order. ( 8 ) THE result is that this petition is allowed and the order dated 31-5-1983 (Annexure 'd') passed by the Sub-Divisional Officer, Mandsaur, whereby the Authorised Officer removed the name of the petitioner from the voters' list of Gram Panchayat, Kuchrod, is quashed. No order as to costs. Security amount, if any, shall, on Verification, be refunded to the petitioner. .