KUSHAL CHAND Vs. STATE

JUDGEMENT

(1.) This reference has been made by a learned single Judge of this Court in S.B. Civil Writ Petition No. 125 of 1982. The question that has been referred for the decision of a larger Bench reads as follows :

(2.) The facts necessary to be noticed for the disposal of this reference briefly stated are : that the petitioner Kushal Chand is the resident of Ward No. 9 of village Tausar, Tehsil and District Nagpur. He has contested the election for the post of Sarpanch against non-petitioner 5, Shri Mangilal, but he has lost it. The petitioner has alleged that while revising the electoral rolls of Gram Panchayat, Tausar, the authorised Officer under the Rajasthan Panchayat Act, 1953, has included 326 names in the electoral rolls wrongly because 142 persons out of them were minors, 61 persons were non-residents and 123 persons have migrated to other places several years ago. It has further been alleged that 28 persons who were already registered as voters in certain words were transposed to different wards without any justification. Objection petitions were filed before the authorised Officer but he rejected them without holding any preliminary enquiry and without passing any speaking order in spite of the fact that objection petitions were supported by affidavits and have been filed by the electors of the concerned wards as provided by the Rules. He only passed a criptic order without assigning any reasons as to why objection petitions have been rejected. Appeals were preferred before the Collector but the Collector has rejected the appeals on the ground that with the appeals, copies of the orders have not been filed. The case of the petitioner is that because of the wrong inclusion and transposition of the voters, non-petitioner 5 Shri Mangilal and 10 other Panchas could get themselves elected to the Gram Panchayat and non-petitioners 16 and 17 could get themselves co-opted to the Panchayat. The authorised officer rejected the objection petitions on 18-11-1981 and the Collector rejected the appeals before 25-11-1981. On 25-11-1981, the Collector issued a public notice under R.14, Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 (hereinafter referred to as the 'Rules') and published the programme for election vide Annexure II. The contention of the petitioner is that the result of the election, not only of the Sarpanch but also of the Ward Panchas, stands vitiated on account of the wrong inclusion of 326 voters in the voters list and transposition of 28 voters in different wards. According to the petitioner, as per a Division Bench decision of this Court in Hapuram v. M.J.M. Merta others, (D. B. Special Appeal No. 345 of 1980, decided on 2-2-1981), the wrong inclusion of the names or transposition of the names in the electoral rolls cannot form part of the election dispute and, therefore, such a wrong inclusion of fresh names in the electoral rolls as also the wrong transposition of the names in the electoral rolls cannot be challenged by way of an election petition and so, he is left with no other alternative remedy to get this election quashed by an appropriate writ under Art.226 of the Constitution. According to the petitioner, preparation of the proper electoral rolls is the basic foundation for holding the election and since that foundation is missing in this case, the election held on the basis of the final electoral rolls published by the Collector, which is inclusive of 326 names referred to above and 28 transposed names in different wards has vitiated the election and, therefore, this election should be set aside by a writ in the nature of mandamus or quo warranto or any other appropriate writ, order or direction be issued and the proceedings taken by non-petitioner 4 in dealing with the claims and objections for inclusion of 326 persons in the voters list and transposition of 28 persons from their respective wards to other wards and the publication of the final voters list Annexure-B and the election held on its basis be declared null and void. He has also prayed that the order of the Collector Nagpur Annexure-8 dt. 5-12-1981 dismissing the appeals be also quashed and in consequence thereof the election of non-petitioner 5 as Sarpanch of the Gram Panchayat, Tausar and the election of non-petitioners 6 to 15 as Panchas of that Gram Panchayat and the co-option of non-petitioners 16 and 17 as Co-opted Panchas of the Gram Panchayat be declared void and non-petitioners 1 to 4 be directed to delete the names of 326 persons from the electoral rolls and to cancel the transposition of 28 names from the electoral rolls from their respective wards to the other wards in which they have been included.

(3.) A preliminary objection was raised by Mr. M. Mridul learned counsel for the non-petitioners that the contest regarding inclusion of wrong names in the electoral rolls is an election dispute because the authorised officer rejected the objections of the petitioner and other ward members on 18-11-1981 when the elections were reasonably imminent. In this respect, he placed reliance on the following passage taken from Halsbury's Laws of England Edn. 2, Vol. 12 under the heading 'Commencement of the Election :