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Madhya Pradesh High Court · body

2002 DIGILAW 996 (MP)

KANCHAN ALIAS SAVITRI MARCO v. KALAVATI UIKEY

2002-10-29

S.R KHARE

body2002
Judgment ( 1. ) THIS is a revision by the returned candidate under Section 26 (2) of the m. P. Municipalities Act, 1961 (hereinafter to be referred to as the "act") against the order by which her election to the office of the President of Nagar panchayat, Baihar has been declared to be void and the non-applicant No. 1 has been declared to be duly elected. The petitioner herein has also been debarred to contest election for seven years. ( 2. ) IT is not in dispute that returned candidate Smt. Kanchan Marco was living in Village Harrabhat with her father. Her husband Bahadur Singh was also living there and practicing as a Doctor. Her name was included in the electoral role of Village Harrabhat as "savitri Marco" and it was at Serial no. 270 (Ex. P-8 ). The name of her husband was also included in that voter list at Serial No. 269. She was not named as "kanchan Marco" in the voter list of Harrabhat. She contested the election of the member of Janpad Panchayat, paraswara from Village Harrabhat in July, 1994 as "savitri Marco" and she was elected. She continued to hold that office for full term of five years. She was resident of that village up to July, 1999. She submitted an application on 22-10-1999 in the prescribed form ka before the Electoral Registration officer to get her name included in the voter list of Ward No. 8 of Baihar Nagar panchayat. That application is Ex. P-3. She made a declaration in this application that she is living in House No. 40 of Ward No. 8 and she is ordinarily resident of that place. On this application the date 25-10-1999 was fixed for hearing before the Registration Officer. It is not known what happened on that date. But on the next day, ie. , on 26-10-1999 an order has been passed on the application that it has been accepted and the name of the applicant has been included in Municipal Electoral Roll of Baihar. The name "kanchan wife of B. S. Marco" was included in the Electoral Roll of Baihar at Serial No. 978. That is Ex. P-5. Thereafter, she submitted the nomination form for election to the office of the President of Nagar Panchayat, Baihar. The voting took place on 26-12-1999. The name "kanchan wife of B. S. Marco" was included in the Electoral Roll of Baihar at Serial No. 978. That is Ex. P-5. Thereafter, she submitted the nomination form for election to the office of the President of Nagar Panchayat, Baihar. The voting took place on 26-12-1999. The counting of ballot papers was done on 28-12-1999 and Smt. Kanchan Marco was declared elected on 3-1-2000. ( 3. ) THE case of election petitioner Smt. Kalavati Uikey in the election petition is that the name of the respondent No. 1 was never "kanchan". She continues to reside in Village Harrabhat and her name is included in the voter list of that village. She did not get her name deleted from that voter list. She continued to function as member of Janpad Panchayat, Paraswada in which Village Harrabhat is included up to 23-1-2000. She never resigned from the membership of the said Janpad Panchayat nor her resignation was accepted. She continued to participate in the meetings of the Janpad Panchayat up to 19-11-1999. According to the election petitioner the respondent No. 1 got her name changed to Kanchan Marco and by false representation and fraud got her name included in the Municipal Electoral Roll of the Nagar Parichayat. She is "ordinarily resident" of Village Harrabhat and therefore as per Section 30 (b) of the Act she could not be registered in the electoral roll of Ward No. 8 of Baihar. ( 4. ) THE case of the respondent No. 1, the returned candidate, is that her name is "kanchan". She was so named at the time of her birth. Her name as such is recorded in the birth register (Copy Ex. D-4) of Village Nikum and then she was living in Village Harrabhat with her father. Her husband was also living there but in July, 1999 he constructed a house in Ward No. 8 at Baihar and then she shifted to that place with her husband. Her name is also "savitri". The term of the Janpad Panchayat, Paraswada was complete on 31-7-1999. She resigned from the membership of the said Janpad Panchayat by sending her resignation by post under postal certificate on 22-11-1999. She also submitted an application on 25-11-1999 as per acknowledgment (Ex. D-6) to get her name deleted from the voter list of Village Harrabhat. The term of the Janpad Panchayat, Paraswada was complete on 31-7-1999. She resigned from the membership of the said Janpad Panchayat by sending her resignation by post under postal certificate on 22-11-1999. She also submitted an application on 25-11-1999 as per acknowledgment (Ex. D-6) to get her name deleted from the voter list of Village Harrabhat. She got her name included in the Municipal Electoral Roll of Baihar as per rules as she was residing there after July, 1999. ( 5. ) THE Trial Court after appreciation of the documentary and oral evidence on record has held, inter alia, that the respondent No. 1 in the election petition was "not qualified" to be chosen as President within the meaning of section 22 (1) of the Act as she was not "ordinarily resident" of Baihar and she could not be registered as voter in the Municipal Electoral Roll of Baihar in view of Section 30 (b) of the Act. As she could not be enrolled in the municipal Electoral Roll of Baihar being already included in the electoral roll of Village Harrabhat she was not qualified to be a candidate for the office of the President of Nagar Panchayat, Baihar. It has also been held that she had: not resigned from the membership of Janpad Panchayat, Paraswada nor she got her name deleted from the electoral roll of Village Harrabhat. She did not disclose the true facts in her application (Ex. P-3) for inclusion of her name in the Municipal Electoral Roll of Baihar and suppressed the material fact that her name is included in the electoral roll of the Gram Panchayat of Village; harrabhat. ( 6. ) IN this revision it is argued on behalf of the petitioner herein that the impugned order is contrary to law and the Trial Court has exercised jurisdiction not vested in it by law. It is pointed out that any irregularity in the preparation of electoral roll or inclusion of the name therein can not be a ground for declaring the election as void as finality is attached to the electoral roll after it has been notified and the judge hearing the election petition can not examine the correctness of the electoral roll. It is contended that the election petitioner should have raised the objection before the Registration officer and as that was not done the electoral roll became final. It is contended that the election petitioner should have raised the objection before the Registration officer and as that was not done the electoral roll became final. It is further contended that the respondent No. 1 in the election petition was enrolled in the Municipal Electoral Roll as voter and therefore as per Section 34 (1) of the Act she was qualified to be a candidate for the election of President. It is also said that the election petitioner could not be declared elected automatically even if the election of the respondent No. 1 was invalid. It is argued that the impugned order debarring the respondent No. 1 to contest election for seven years is absolutely without jurisdiction. ( 7. ) ON the other had it is submitted on behalf of the election petitioner that the impugned order is correct. It is argued that it is not a case of mere irregularity in the preparation of the electoral roll but the respondent no. 1 got her name included in the Municipal Electoral Roll by false representation and fraud as she made a false declaration in the application form (Ex. P-3) that her name was not included in the electoral roll of any Gram Panchayat whereas on the date she submitted her application (Ex. P-3) her name was admittedly included in the voter list of Gram Panchayat, Harrabhat and she was also the member of Janpad Panchayat, Paraswada on that date. It is pointed out that it is a case of deliberate falsehood and the material facts had been suppressed. It is argued that if the respondent No. 1 had given full particulars as prescribed in the rules and the application form the Registration officer could have made further inquires and could have refused to register her name in the Municipal Electoral Roll. It is also said that no objection could be raised by the election petitioner at that stage as the respondent No. 1 had suppressed her name as "savitri" and came out with another name as "kanchan". It is argued that the objection could be raised before the registration Officer only when the respondent No. 1 had disclosed her real name as savitri on the basis of which she contested the election of the membership of the Janpad Panchayat and worked there in that name. It is argued that the objection could be raised before the registration Officer only when the respondent No. 1 had disclosed her real name as savitri on the basis of which she contested the election of the membership of the Janpad Panchayat and worked there in that name. It is said that the change of name was with an ulterior motive and to defraud the public and the registration Officer. It is contended with vehemence that such a person can not be permitted to occupy the high office of the President of the Nagar panchayat. In short it is argued that the respondent No. 1 not being an "ordinarily resident of Baihar" could not be a voter and was not qualified to be a candidate for the office of the President. ( 8. ) IT is not the case of the election petitioner that the respondent no. 1 suffers from any disqualification within the ambit of Section 31 (1) or section 35 of the Act or she is guilty of any "corrupt practice" within the meaning of Section 28 of the Act. The ground on which the election has been called in question is that the respondent No. 1 was not "qualified" to contest the election as she was not a "voter" being not "ordinarily resident in the ward" within the meaning of Section 30 (b) of the Act and therefore, she was not entitled to be enrolled in the Municipal Electoral Roll as a voter and was not qualified to be a candidate for the election of President. ( 9. ) AS stated above the respondent No. 1 submitted the application in the prescribed form (Ex. P-3) for inclusion of her name in the Municipal electoral Roll on 22-10-1999. Athar Husain (P. W. 1) has deposed that he was the Chief Executive Officer of Janpad Panchayat, Paraswada. According to him Savitri Marco was the member of this Janpad Panchayat from 26-7-1994 to 23-1-2000. The certificate issued by him is Ex. P-2. She participated in the meeting of the Janpad Panchayat on 19-11-1999. He has further deposed that no resignation of Savitri Marco was received in the office of the Panchayat. P. K. Dwivedi (P. W. 6) has produced the Register Article a. It contains the proceedings of the meetings of Janpad Panchayat, Paraswada. The certificate issued by him is Ex. P-2. She participated in the meeting of the Janpad Panchayat on 19-11-1999. He has further deposed that no resignation of Savitri Marco was received in the office of the Panchayat. P. K. Dwivedi (P. W. 6) has produced the Register Article a. It contains the proceedings of the meetings of Janpad Panchayat, Paraswada. The new office bearers took charge on 29-2-2000 and till then the old office bearers continued to function though the term of Panchayat had come to an end in July, 1999. This is in conformity with Section 9 of the M. P. Panchayat Raj Adhiniyam, 1993. According to Dr. P. Prasad Bramhe (P. W. 7) who was also member of the Janpad Panchayat, Smt. Savitri participated in the meeting of the Janpad panchayat on 19-11-1999 as per page 135 in the register Article a. On the other hand Kanchan Marco (D. W. 1) has deposed that she shifted to Baihar in July, 1999 with her husband who had built a house there. She claims to have sent her resignation from the membership of Janpad Panchayat on 22-11-1999. As already stated this resignation was not received in the office of the Janpad panchayat and it was never accepted. She does not deny that she participated in the meeting of Janpad Panchayat on 19-11-1999. Thus it emerges from the evidence that the respondent No. 1 was resident of Harrabhat, her name found place in the voters list of that village and she contested the election of membership of Janpad Panchayat, Paraswada and she was working as a member of that Panchayat. She submitted the application (Ex. P-3) on 22-10-1999 before the Electoral Registration Officer claiming that she has shifted to house No. 40 of Ward No. 8, Baihar and the Registration Officer after being satisfied that her claim is correct allowed her application. Her name was included in the voters list of Ward No. 8, Baihar. She was enrolled in the municipal Electoral Roll as a voter as per Section 34 of the Act and therefore, she was qualified to be a candidate for the election of President. ( 10. ) IT is necessary to have a look upon the provisions of the Act and the rules framed thereunder relevant for the decision of this revision. She was enrolled in the municipal Electoral Roll as a voter as per Section 34 of the Act and therefore, she was qualified to be a candidate for the election of President. ( 10. ) IT is necessary to have a look upon the provisions of the Act and the rules framed thereunder relevant for the decision of this revision. Accord-ing to Section 22 the election of a returned candidate can be declared void if on the date of election he was (a) not qualified or was (b) disqualified to be chosen as President. Section 30 provides for the qualification of voters and their registration. One of the qualifications provided therein is that the person should be "ordinarily resident in the ward". Section 32 lays down that the work of preparation of electoral rolls shall be vested in the State Election Commis-sion and the State Government shall make rules for the preparation of electoral rolls in consultation with State Election Commission. Section 34 provides for qualification for election as President. "a person who is enrolled in the Municipal Electoral Roll as a voter, shall be qualified to be a candidate for the election of President". Section 35 provides for disqualifications of candidates for election as President. In the present case it is not alleged that the returned candidate suffered from any disqualification. As per Section 26 no appeal shall lie against the decision in the election petition but a revision can be filed before the High Court on the grounds that the decision is contrary to law or there is any jurisdictional infirmity. ( 11. ) THE State Government has framed M. P. Nagarpalika Nirvachan niyam, 1994. Rule 3 of these Rules provides for preparation of voters list. Rules 4 deals with the publication of voters list for inviting claims and objections. According to Rule 5 any person whose name is not entered in the voters list may prefer a claim by delivering to the Registration Officer an application in writing and similarly any person may file objections also. The registration Officer after holding a summary inquiry into the claims and objections would record his decision in writing. There is also provision for appeal from the decision of the Registration Officer. No correction can be made after the finalisation of the voters list. The registration Officer after holding a summary inquiry into the claims and objections would record his decision in writing. There is also provision for appeal from the decision of the Registration Officer. No correction can be made after the finalisation of the voters list. As per Rule 9-A the name of a person can be deleted from the voters list if the Registration Officer is satisfied that his name is registered in the voters list "of any Panchayat". ( 12. ) A perusal of the provisions of the Rules and the Act reveals that these are substantially modeled on the provisions in the Representation of the peoples Act, 1950 and the Representation of the Peoples Act, 1951. There is a complete code for the registration of any person as a voter and also the deletion of his name from the voters list. As per Section 22 (1) (d) (iii) the cases of non-compliance with the provision of the rules framed under Section 32 so far as they relate to "preparation and revision of list of voters" have been specifically excluded from the grounds for declaring the election to be void. The effect of the statutory provisions in the Act and the Rules is that in the election petition the Judge can not go into the question whether the name of any person has been rightly or wrongly included in the voters list. In other words the voters list attains finality after its publication and if the name of any person is sought to be deleted on the ground that he is not entitled to be registered as voter that can be done by the Registration Officer under Rule 9-A or by the State Election Commission or the authority appointed by it under section 31 (2) of the Act after following the procedure provided therein. The voters list can not be challenged in the election petition on the ground of want of qualification of the person whose name is included therein. The Judge herein the election petition can not go into the question whether the person "is ordinarily resident in the ward" or not. That is the question which falls for decision by the Electoral Registration Officer. ( 13. ) IN N. M. Trivedi Vs. The Judge herein the election petition can not go into the question whether the person "is ordinarily resident in the ward" or not. That is the question which falls for decision by the Electoral Registration Officer. ( 13. ) IN N. M. Trivedi Vs. V. B. Raju, AIR 1973 SC 2602 , the Constitution Bench of the Supreme Court while interpreting the provisions of the representation of the Peoples Act, 1950 has held that the decision on the question whether a person is ordinarily resident in the constituency in the electoral roll of which his name is entered has been entrusted to the exclusive jurisdiction of the registering officers and the appellate authorities under the act, Sections 14 to 24 of which provide a complete code in the matter of preparation and maintenance of electoral rolls. A wrong decision on that question can not be treated as a jurisdictional error and can not be judicially reviewed either in a Civil Court or before an Election Tribunal. In B. M. Ramswamy Vs. B. M. Krishnamurthy, AIR 1963 SC 458 , also it has been held that the Court trying an election petition has no jurisdiction to go behind the electoral roll and find out whether the name of any person entered therein was illegally entered. ( 14. ) IN Baburao Vs. Manikrao, (1999) 5 SCC 38 , it has been held that if a candidates name appears in the electoral roll of more than one constituencies that would not disqualify him from contesting election from any of those constituencies. ( 15. ) IN S. P. Singh Vs. Nawal Kishore, (2000) 8 SCC 46 , it has been held that the electoral roll is to be deemed final and conclusive as far as the fulfilment of "qualification" of a voter is concerned but it is not to be deemed final and conclusive by the Election Tribunal so far as the "disqualifications" attaching to such persons are concerned. Nawal Kishore, (2000) 8 SCC 46 , it has been held that the electoral roll is to be deemed final and conclusive as far as the fulfilment of "qualification" of a voter is concerned but it is not to be deemed final and conclusive by the Election Tribunal so far as the "disqualifications" attaching to such persons are concerned. An entry in the electoral roll has to be taken to be "conclusive proof of the fact that the person fulfils the requisite conditions as to age and residence in the constituency; finality has been given to the decision of the officer preparing the roll insofar as the fulfilment of conditions of registration is concerned but it has not been considered desirable to extend the same finality to the decision on the subject of disqualification as the latter is a more serious matter. The same view has been reiterated in harishanker Jain Vs. Smt. Sonia Gandhi, (2001) 8 SCC 233 . ( 16. ) IN the present case the name of the respondent No. 1 (in the election petition) was included in the voters list of Ward No. 8, Baihar by the electoral Registration Officer and the voters list could not be challenged by the election petitioner on the ground that the respondent No. 1 was earlier living in Village Harrabhat, her name was included in the voters list of that village or she was member of the Janpad Panchayat, Paraswada. On the date of election to the office of the President she was qualified to be chosen for that post as she was enrolled in the Municipal Electoral Roll as a voter and therefore, her election could not be declared as void in the election petition case. The impugned order is contrary to law and suffers from jurisdictional infirmity. ( 17. ) IN the result the revision is allowed. The impugned order is set aside. Respondent No. 1 Smt. Kanchan Marco will continue to function as president of Nagar Panchayat, Baihar and if the election petitioner has taken charge of that post because of the impugned order she will handover the charge to Smt. Kanchan Marco immediately. The order debarring Smt. Kanchan marco to contest election for seven years is also set aside. Costs as incurred. Civil Revision allowed.