UMA KANT VERMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) By this application under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issuance of writ of certiorari quashing Annexures 1 and 2. By Annexure 1 the nomination paper of the petitioner for the post of Mukhia from Raisingha Gram Panchayat in the district of Motihari was rejected by the Election Officer (respondent no. 2). The ground on which his nomination paper was rejected was that the name of the petitioner is entered in the electoral roll of Motihari Municipality as well as in the electoral roll of his Gram Panchayat. It may be stated that the petitioner had been elected as a Ward Commissioner from one of the Wards of the Motihari Municipality. The petitioner filed an appeal before the Sub-divisional Officer against the order passed by respondent no. 2. His appeal was dismissed by the Subdiyisional Officer on 1-5-1978. The Sub-divisional Officer also found that the petitioner was a voter both in the Motihari Municipality and in the Gram Panchayat.

(2.) According to rule 5(3) of the Bihar Panchayat Election Rules, 1959 "no person can be voter from more than one Panchayat". On that ground alone his nomination paper should not have been rejected. A Municipality and a Gram Panchayat are different bodies. The disqualification for being a votor is that a person cannot be a voter from two Gram Panchayats. It has been held by this Court that if a person has exercised his franchise in one of the Gram Panchayat from where he is a votor, he cannot again become a voter in another Gram Panchayat where too he is registered as a voter. But merely because a person is a voter from two Gram Panchayats and he has not exercised his franchise in any of the Gram Panchayats, he cannot be said to be disqualified from becoming a candidate in the other Gram Panchayat. The disqualification cannot be extended in a case where a person is a voter in some Municipality and is also a voter in a Gram Panchayat that the position in the present case is different. In the present case the petitioner had been elected as a Ward Commissioner from one of the Wards of Motihari Municipality in October, 1977. He has been residing within the municipal area and this fact according to the Sub-divisional Officer was not denied. The Sub-divisional Officer on this ground that the petitioner was not residing within the Gram Panchayat for more than 180 days and was, therefore, disqualified under the provisions of section 79 of the Bihar Panchayat Raj Act (hereinafter called the Act). Section 79 (1) (m) of the Act provides that a person shall be disqualified for election, nomination or appointment as a Mukhia if such person does not reside in the Gram Panchayat area for at least one hundred and eighty days in the aggregate in a calendar year immediately preceding the date on which the election or appointment, as the case may be, is held or made. The election in the present case was scheduled to be held some time in April, 1978. It was submitted by the learned counsel appearing for the petitioner that the village home of the petitioner is only at the outskirt of the Motihari town and, therefore, he resides in his village home. A reply to the counter-affidavit has been filed in which certain documents such as Chowkidari receipts etc. has been filed. It is not for me to go into all these documents and decide for myself as to whether the petitioner resides in his village home or resides in the municipal area. The Sub-divisional Officer, in the facts and circumstances of this case, found that the petitioner resides in the municipal area inasmuch as he was elected as one of Ward Commissioners from one of the Wards and he resided in the municipal area for more than 180 days. He could not reside also at his village home during that period. In my opinion, this finding cannot be said to be illegal or without any basis The voters list of a Municipality is prepared on the basis of the voters list of assembly constituency. That part of the electoral roll of the assembly constituency, for the time being in force, as it relates to the local area comprised in a municipality is the voters list of a municipality. Under the Representation of People Act residence is one of the essentials for being enrolled as a voter. The qualification for the registration of electors at elections of Municipal Commissioners, accordingly to rule 3 of the Bihar Municipal Election Petition Rules, is the same as those for registration for electors at elections of the members of legislative assembly. In this view of the matter, the petitioner was a resident of Motihari Municipality. It is possible that a person is registered as an elector at more than one place as in the present case. As stated above if the petitioner had not exercised his franchise and participated in the election of the Municipality, there could be no difficulty and he could choose to contast the election from the Gram Panchayat. But the petitioner chose to contest from the Municipality and thus exercised his option to remain as a voter of the Municipality. The presumption would be that he resided in the municipal area and not in the Gram Panchayat. The Sub-divisional Officer was, therefore, correct in holding that he was disqualified under section 79 of the Act. I am, there- fore, not inclined to interfere in the present case.

(3.) The application, therefore, fails and is dismissed. There will be no order as to costs. Application dismissed.