AJIT KUMAR CHATTERJEE Vs. ELECTORAL REGISTRATION OFFICER BHATAR

JUDGEMENT

(1.) THE election of the Gushkara Gram Panchayat is made from the members of a Gram Sabha who consist of the voters in the Bhatar Legislative Assembly Constituency Electoral Roll, prepared in accordance with the provisions of the Representation of the People Act (Act 43 of 1950) and the Rules made thereunder. The petitioner claims to be a member of the Gram Sabha. The word "gram Sabha" and as to who are entitled to be members thereof, is dealt with in section 7 of the West Bengal Panchayat Act (Act I of 1957 ). Actually this is the Act which has created the franchise. It runs as follows:-

(2.) SO far as the Bhatar Legislative Assembly Constituency Electoral Roll is concerned, it is stated that 326 persons applied for inclusion of their names in the Electoral Rolls to the Electoral, Registration Officer under Rule 26 of the Preparation of the Electoral Rolls Rules. The names of about 197 [persons were allowed to be included in that electoral roll. The election has taken place on the strength of that Electoral Roll and Mr. Sen's clients have been elected. This application has been made challenging the election on the ground that the Electoral Registration Officer had the duty to hear objections and he did not give any notice to many objectors including the petitioners in violation of the electoral rules, as well as rules of natural justice. It is further said that the names have been illegally included because they did not satisfy the pre conditions for such inclusion and various other objections are also mentioned. It is said that some were less than 20 years of age, others were not residents within the jurisdiction and there are also others who had their names already included in the register of another constituency. In short, the objection is that this register, that is, the electoral roll of the West Bengal Legislative Assembly prepared under the Representation of the People Act, had been wrongly prepared, with the result that wrong people became voters and the election to the Gram Panchayat is consequently bad. In my opinion, there is an insuperable bar to this application.

(3.) IT will be gathered from the provisions of section 7 cited above, that so far as membership of the Gram Sabha is concerned, it has been laid down that the Gram Sabha will consist of all persons whose names were included in the electoral roll of the West Bengal Legislative Assembly, for the time being in force. The word is "included" and not "rightly included". In other words, the electoral roll which has been prepared under the Representation of the People Act must be prepared in accordance with the provisions of that Act and the Rules made thereunder. But once that is made, then for the purposes of the constitution of the Gram Sabha under the Panchayat Act, the electoral roll so prepared must be taken as conclusive. An election held on the footing of such an electoral roll, cannot be challenged on the ground that the electoral roll has not been rightly prepared. This principle has been explained in a Supreme Court decision, Sailendra Narayan Bhanja Deo-v-State of Orissa, (1) 1956 S. C. A. 870. That was a case under the Orissa Estates Abolition Act. In that Act the word "estate" was denned to mean any land held by an intermediary and included under one entry in. any of the General Registers of revenue-paying lands and revenue-free lands prepared and maintained under the law for the time being in force by the Collector of a district. It was admitted on behalf of the petitioner, the Zemindar of Kanika, that certain lands were included in certain registers but it was claimed that they were wrongly included. It was argued by Mr. P. R. Das that if lands were included in such registers, which should not have been included under the law, such entries were a nullity and therefore they could not be treated as 'estates' for the purposes of the Orissa Estates Abolition Act. This argument was negatived The learned Chief Justice pointed out that the definition of the word "estate" referred to 'entries' in the General Registers and not to entries correctly made. For the purposes of the definition in the Estates Abolition Act, once there was an entry in such a register, the matter was conclusive. Similarly, regard being had to the definition in section 7, once a person is found in the electoral roll of the West Bengal Legislative Assembly, he must be considered as a member of the Gram Sabha and for the purposes of an election of a Gram Panchayat, that must be conclusive. Consequently, it is not possible in this case to go into the question as to whether the electoral roll had been properly prepared under the provisions of the Central Act. On this single ground, this application must fail. The Rule is therefore discharged. Interim orders if any, are vacated. There will be no order as to costs.