ARDESHIR SORABJI MIRZA Vs. U.M. BHATT

JUDGEMENT

(1.) A rather interesting question has been raised, on the petition, under Section 7 -C of the Bombay Village Panchayats Act, 1933, and the question arises in this way. There is a village Panchayat at the village of Udwada, constituted under the provisions of the Bombay Village Panehayats Act, 1933. The village of Udwada is composed of four wards and it is not in dispute that the petitioner is a voter in ward No. 3. On November 21, 1956, the petitioner, filed a nomination paper, asking that he be elected from wards Nos. 3 and 4. His nomination paper was scrutinised and the nomination was accepted. On December 14, 1956, the election was held and two days later i.e. on December 16, 1956, the petitioner was declared elected from ward No. 4. Some nine months from the date when the petitioner was declared elected, a voter made an application on September 11, 1957, to obtain a declaration that the petitioner's election was invalid. This petition was heard by the Prant Officer, Bulsar Prant, and by an order made on November 25, 1957, he held that the election of the petitioner was invalid and must be declared as such. It is the correctness of this order which has been challenged on this petition made under Articles 226 and 227 of the Constitution.

(2.) IT would appear that as a result of the election of the petitioner being declared invalid a bye -election was ordered and at the bye -election which was held, opponent No. 3 was declared elected to the Gram Panehayat on January 13, 1958. The subsequent development made it necessary to amend the petition as was presented and the petition, as amended, claims two reliefs: (1) that the order made by the Prant Officer on November 25, 1957, was illegal and could not be supported and (2) that the election of opponent No. 3 which took place on January 13, 1958, was illegal and of no effect.

(3.) IT would appear that the expression 'village' is defined in Section 3(16) of the Act as meaning any local area declared to be a village under Section 4. Section 4 gives power to the State Government to declare any local area to be a village. Section 5 provides for the establishment of a Panchayat. Section 6 refers to the constitution of Panchayats. Section 7 refers to election and Sections 7 -B and 7 -C deal with two different topics; Section 7 -B deals with the list of voters and Section 7 -C deals with persons qualified to vote and be elected. Further support to the construction which we have chosen to adopt is furnished by Section 7 -C(3) which refers to the list of voters as being conclusive evidence for the purpose of determining under the section whether a person is qualified or is not qualified to vote. It is evident that Section 7 -C(3) does not refer to the lists of voters but only to the list of voters. That rather shows that for the purpose of an election to the Gram Panchayat there is a list of voters, though in the case of a village like Udwada, the village being composed of different wards, the list of, voters would seem to be distributed over different wards and the list would show different wards in which persons have a right to vote. The view which was taken by the Prant Officer was that a candidate in order to be elected to the Panehayat must be from the ward in which his name stands as a voter. We do not find adequate justification for the view taken by the Prant Officer. It is of the utmost importance to realise, as I have said earlier, that the right to vote is a right different from the right to be elected. The right to be elected implies that the person has a right to vote. The condition as regards the right to vote is satisfied in this ease, and the only question is whether the other condition is satisfied, and, in our view, that condition is satisfied because the ward in which the petitioner is seeking election is a ward of the self -same village of Udwada. The most that can be said in favour of the argument urged in support of the order made by the Prant Officer is that the construction suggested by Mr. Chandrachud and adopted by Mr. Shastri appearing for opponent No. 3 may be a possible construction. But the question is, is it a rational construction? If a provision is susceptible of a possible construction and a rational construction, there can be no doubt that the ratio'nal construction should be adopted to the exclusion of a possible construction. In our view, therefore, the order made by the Prant Officer cannot be supported and must be set aside.