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Chandrakant Ramrao Saraf and ors. Vs. Punde and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1455 of 1967
Judge
Reported inAIR1970Bom221; (1970)72BOMLR89; ILR1970Bom654; 1970MhLJ343
ActsBombay Village Panchayats Act, 1958 - Sections 40, 40(1) and 40(2); Maharashtra Panchayat Samitis (Registration of Voters and Conduct of Election) Rules, 1962 - Rules 3, 3(1), 3(2), 3(3), 4, 4(1), 4(2), 4(3), 13, 15, 19(1) and 19(2); Constitution of India - Article 226
AppellantChandrakant Ramrao Saraf and ors.
RespondentPunde and ors.
Appellant AdvocateA.V. Savant, Adv. for ;R.W. Adik, Adv.
Respondent AdvocateC.R. Dalvi, Asst. Govt. Pleader
Excerpt:
.....panchayats act (bom. iii of 1959), section 40--whether tahsildar can delete name of voter from voters' list for ceasing to be member under section 40(1)(a) and (b) without latter question being decided by president of zilla parishad--power to amend voters' list whether circumscribed by period mentioned in rule 3(2)--rights of voter to vote and to be elected whether affected by illegal deletion of his name by tahsildar from voters' list.;a tahsildar in exercising powers vested in him under rule 3(3) of the maharashtra panchayat samitis (registration of voters and conduct of election) rules, 1962, cannot amend the list on the ground of a voter or a member of a panchayat having ceased to be a member for the reasons mentioned in section 40 (1) (a) and (6) of the bombay village panchayats..........and cancelled and consequently on july 19, 1967 their names were illegally deleted from the voters' list for gangapur gat panchayat samiti, turkabad. the grievance of the first petitioner is that on the basis of deletion of his name from the voters' list on july 19, 1967, the tahsildar, as returning officer, panchayat samiti election. turkabad gangapur had illegally rejected the first petitioner's nomination for contesting the election for the membership of panchayat samiti,2. the only facts which need to be noticed are as follows:the petitioners were elected as members of the gram panchayat for village turkabad in december 1966. as elected members of the gram panchayat, the petitioners were eligible to vote and contest the elections for panchayat samiti of gangapur taluka for.....
Judgment:

K.K. Desai, J.

1. In this petition under Article 226 of the Constitution the grievance of the six petitioners who were members of the Turkabad Village Gram Panchayat is that their membership of the Panchayat had been illegally treated as vacated and cancelled and consequently on July 19, 1967 their names were illegally deleted from the voters' list for Gangapur Gat Panchayat Samiti, Turkabad. The grievance of the first petitioner is that on the basis of deletion of his name from the voters' list on July 19, 1967, the Tahsildar, as Returning Officer, Panchayat Samiti Election. Turkabad Gangapur had illegally rejected the first petitioner's nomination for contesting the election for the membership of Panchayat Samiti,

2. The only facts which need to be noticed are as follows:

The petitioners were elected as members of the Gram Panchayat for village Turkabad in December 1966. As elected members of the Gram Panchayat, the petitioners were eligible to vote and contest the elections for Panchayat Samiti of Gangapur Taluka for Turkabad Circle. In connection with elections to Panchayat Samiti to be held on July 31, 1967, the last date for filing nomination papers was July 18, 1967. In that very connection the voters' list was published on July 12, 1967, Admittedly, in that list the names of the petitioners appeared. Petitioner No. 1 filed his nomination paper dated July 15. 1967 for contesting the election to the Panchayat Samiti.

It appears that the Tahsildar of the village purporting to act under Sub-rule (3) of Rule 3 of the Maharashtra Panchayat (Registration of Voters and Conduct of Election) Rules (hereinafter referred to as 'the Rules') on his own motion on July 19, 1967 deleted the names of all the petitioners from the voters' list. On the basis of that deletion, by the impugned order dated July 19, 1967 he held that on account of the membership of the candidate (i. e. of Petitioner 1) of the Gram Panchayat, Turkabad having been cancelled, he was disqualified from standing for election. He referred to Rules 15 and 19(2)(a) in the order.

3. Admittedly the petitioners' names have been deleted from the voters' list on the ground that they had ceased to be the members of the Gram Panchayat under the provisions of Sub-section (b) of Section 40(1) of the Bombay Village Panchayats Act, 1958. That was the oral information given to the petitioners by the Tehsildar. The contention on behalf of the Petitioners is that Sub-section (2) of Section 40 of the Act provides that the question of elected members vacating the office of the membership of the Panchayat can only be decided by the President of a Zilla Parishad after giving to the member concerned a reasonable opportunity of being heard with a right in the member to file an appeal against the decision of the President to the State Government. The Tahsildar had no power under Sub-rule (3) of Rule 3 to delete the petitioners' names from the Voters' list on the basis that the petitioners had ceased to be members of the Panchayat, before that question had been raised before and decided by the President. In fact the question had never been raised and had not been decided by the President The Tahsildar acted illegally and without jurisdiction in deleting the names of the petitioners from the voters' list purporting to act under the powers given to him under Sub-rule (3) of Rule 3. As theaction of the Tahsildar In deleting the names of the petitioners was illegal, the Petitioners were entitled to relief in that connection in this writ petition. As that action was illegal, the rejection of the nomination of petitioner No. 1 on the basis of that action was also illegal and petitioner No. 1 was entitled to relief in that connection in this petition.

4. Before referring to the provisions In that Act and the rules on which reliance is placed, it requires to be recorded that an affidavit in reply has not been filed on behalf of any of the respondents. We will accordingly proceed to decide this petition on the footing that the allegations of facts made in the petition are correct. We will assume in favour of the petitioners that the Tahsildar deleted their names from the voters' list on the ground that the petitioners had vacated the office of membership of the Panchayat under the provisions of Sub-section (1)(b) of Section 40 of the Act.

5. The relevant contents of Section 40 run as follows;

'40. (1) Any member of a Panchayat who during his term of office--

(a) is absent for more than four consecutive months from the village ..... unless leave not exceeding six months so to absent himself has been granted by the Panchayat, or

(b) absents himself for six consecutive months from the meetings of the panchayat, shall cease to be a member and his office shall be vacant.

(2) If any question whether a vacancy has occurred under this section is raised by the President of a Zilla Parishad suo motu or on an application made to him in that behalf, the President shall as far as possible decide the question within sixty days from the date of receipt of such application. Until the President decides the question, the member shall not be disabled from continuing to be a member of the Panchayat. Any person aggrieved by the decision of the President may, within fifteen days from the date of such decision, appeal to the State Government; and the decision of the State Government in appeal shall be final:

Provided that no decision shall be given under this Sub-section by the President against any member without giving him a reasonable opportunity of being heard '

The relevant provisions in Rules 3 and 4 run as follows:

'3. Voters' list. (1) The Collector shall cause a voters' list to be prepared by an officer appointed by him in this behalf...

(2) Not less than four days before the last date fixed for the nomination of candidates under Rule 13, the officer appointed under Sub-rule (1) shall publish.

the voters' list by affixing copies thereof at.....

(3) The officer appointed under Sub-rule (1) may on his own motion or on an application made to him amend the voters' list and shall authenticate it with his signature.

(4) x x x x x

4. Persons entitled to vote and contest election. (1) No person whose name is not and every person whose name is entered in the voters' list of an electoral division on such day as the Collector may, by general or special order, fix in this behalf, shall be entitled to vote from that electoral division.

(2) x x x x x

(3) The voters' list shall be conclusive evidence for the purpose of determining under this rule whether any person is qualified to vole, or as the case may be, is qualified to be elected at any election'.

6. There is no dispute that the voters' list was published by the Tahsildar under Sub-rule (2) of Rule 3 on July 12, 1967. Similarly, there is no dispute that the Collector had nominated July 18, 1967 to be the relevant date under Rule 4(1). Apparently having regard to the clear language in Sub-rules (1) and (3) of Rule 4, every person whose name was entered in the voters' list of an electoral college on July 10, 1967, was entitled to vote from the electoral college and was qualified to be elected at the election mentioned in the petition. The question is whether the voters' list, as existing on the date of publication, i.e., July 12, 1967, was conclusive under Sub-rule (2) of Rule 4 or whether the list could be at a subsequent date amended by the Tahsildar.

7. (26-6-1969) The further question Is whether the Tahsildar in exercising powers vested in him under Sub-rule (3) of Rule 3 could amend the list on the ground of a voter or a member of Panchayat having ceased to be a member for any of the reasons mentioned in Section 40(1) (a) and (b) without a decision having been made in that connection under the Sub-section (2) of Section 40 by the President of Zilla Parishad or in an appeal by the State Government. The subsidiary question would be whether when the Tahsildar amends the voters' list under the powers vested in him under Sub-rule (3) of Rule 3, his decision must not be arbitrary and capricious but on the footing that he knew all relevant provisions of law and that in law, so far as the question of voter having ceased to be a member of Panchayat under Section 40(1)(a) and (b) arose, he was not entitled, to make any amendments before a decision in that connection was pronounced by the President of a Zilla Parishad or in an appeal by the State Gov-eminent, as the case might be.

8. The answer to these questions depends on the true construction and effect of the provisions in Section 40 and the Rules 3 and 4 which we have already quoted above. It is abundantly clear on a reading of the scheme in Section 40 that under Sub-clauses (a) and (b) of Sub-section (1), a member of a Panchayat may cease to hold the office of being a member for the two grounds and/or reasons contained in Sub-clauses (a) and (b) of Sub-section (1). On those grounds, the provision in the last part of sub-section

(1) is that the member 'shall cease to be a member and his office shall be vacant' There is no doubt that if no further provision was made in Sub-section (2) of this section, the direct effect of the contents of Sub-section (1) of the section would be that automatically upon the grounds mentioned in Sub-clause (a) and (b) of Sub-section (1) becoming complete, a member of a Panchayat would cease to be a member and his office would be vacant. Though this is the clear effect of the language of Sub-section (1), upon reading Sub-section (2), it is quite clear that the question of a member of a Panchayat ceasing to be a member and vacating his office for the grounds mentioned in Sub-clauses (a) and (b) of sub-section (1), must be decided in the manner and by the procedure prescribed in Sub-section.

(2). In that connection the important provision in Sub-section (2) is:

'Until the President decides the question, the member shall not be disabled from continuing to be a member of the Panchayat'. '..... no decision shall be given .....

against any member without giving him a reasonable opportunity of being heard,' The above clear language in sub-section (2) directly deals with the question of a member of Panchayat ceasing to be a member and vacating his office for the reasons mentioned in Sub-clauses (a) and (b) of Sub-section (1). Thus though the last part of Sub-section (1) provides that such member 'shall cease to be a member and his office shall be vacant,' the time from which the provision is to operate is indicated by the above quoted phrases from the provisions in Sub-section (2). Apparently, the question of a member of Panchayat having ceased to be a member and vacated his office can never be decided without giving him a reasonable opportunity of being heard. Apparently that question does not automatically stand decided and must be raised before the President of a Zilla Parishad in the manner mentioned in Sub-section (2). In any event, in the present case, the question appears to have been raised before the Tahsildar on July 18, 1967. He was not the officer before whom such a question ought to have been raised. Hewas not the officer prescribed by Subsection (2) of Section 40 or any other provision for deciding the question raised, viz., that the six petitioners in this case had absented themselves for six consecutive months from the meeting of the Panchayat without the leave of the Panchayat. The Tahsildar had no jurisdiction in the matter of such a question raised in connection with the office of membership of the petitioners of the Panchayat in question. This question could only be raised before the President of Zilla Parishad and in an appeal against his decision before the State Government. This question was liable to be decided only after a reasonable opportunity of being heard was provided to the six petitioners. The Tahsildar, when he decided that the six petitioners had ceased to be members of the Panchayat in question because they had absented themselves for six consecutive months from meeting without leave of the Panchayat, was acting in a matter in which, having regard to the clear provisions in Sub-section (2) of Section 40, he had no jurisdiction. In fact it is quite clear that after such a question was raised the six petitioners were not disabled from continuing to be the members of the Panchayat until the question was decided in the manner prescribed by Sub-section (2). As this question has not been decided by the authorities prescribed by subsection (2) up to date, the submission made by Mr. Sawant for the petitioners that the petitioners are not disabled from continuing to be members of the Panchayat must be upheld. The contention made on behalf of the respondents by Mr. Dalvi that upon the petitioners having absented themselves for six consecutive months from meetings of the Panchayat without the leave of the Panchayat having been obtained, they ceased to be members and their office was vacated is contrary to the provision in Sub-section (2) that until the question was decided by the authorities mentioned in Sub-section (2), the petitioners were not disabled from continuing to be members of the Panchayat. This contention of Mr. Dalvi is accordingly rejected.

9. Now, In spite of the provision in Sub-rule (2) of Rule 3 that the voters' list should be published not less than four days before the last date fixed for the nomination of candidates under Rule 13, having regard to the power vested in him under Sub-rule (3) of Rule 3, the Tahsildar continued to have authority to entertain applications for and also suo motu on his own motion to amend the voters' list and to authenticate it with his signature. That power has not been circumscribed by the period of four days mentioned in Sub-rule (2) of Rule 3. The result of the above finding Is that even after the voters' list was published on July 15, 1967, the Tahsildar continued to have power to amend the same and once again authenticate the same by his signature. It is also not in dispute that under Sub-rule (1) of Rule 4, the Collector had fixed July 18, 1967 and every person whose name was entered in the voters' list on that day was, therefore, entitled to vote from the electoral college. Similarly, under Sub-rule (3) of Rule 4, every person whose name was entered in the voters' list on July 18, 1967 was qualified to be a candidate for the election to the Panchayat Samiti The contention of Mr. Dalvi for the respondents is that the voters' list was amended by the Tahsildar by deletion of the names of the six petitioners and that was done on July 18, 1967. As under Sub-rule (3) of Rule 4 the voters' list, as existing on July 18, 1967, was conclusive evidence for the purpose of determining under the rules the question whether the petitioners were qualified to be elected and to vote at the election, a finding should be made that the petitioners were not qualified to vote or to be elected at the election in question. On the basis of plain language of Sub-rules (1) and (3) of Rule 4, this submission would be justified and would require to be accepted. The question is as to how the rights of the petitioners, whose names according to what we have already found and held above, were wrongly and Illegally deleted by the Tahsildar from the voters' list, are affected by reason of the provisions in Sub-rules (1) and (3) of Rule 4. In that connection it requires to be remembered that the election was directed to take place on July 31, 1967. One year ten months and 26 days have now expired since that fixed date. The elections are now to take place. It is abundantly clear to us that upon our striking down the Tahsildar's action in deleting the names of the six petitioners from the voters' list as on July 18, 1967, the list will have to be changed as of that date so as to include the names of the petitioners therein. Since we are about to give directions to the above effect, the voters' list, as existing on July 18. 1967, will be including the names of the six petitioners. That would be so in spite of the provisions in Sub-rule (3) of Rule 4. That will be the effect of the order which we are about to pass in this petition. In law, therefore, the list, as will now be amended according to our directions, must be deemed to have been existing on July 18, 1967 and that list will be conclusive evidence for the purpose of determining whether the petitioners were qualified to vote and to be elected at the election that was then directed to be held. If we accepted Mr. Dalvi's submission, we will have proceeded on the footing that Judicial process was insufficient to correct the Illegality of the action of the Tahsildar so as to give appropriate relief to the petitioners in respect of their right of vote and their right to be elected to the Panchayat Samiti. We are unable to hold that the powers which are vested in us are insufficient.

10. As the above is the true construction and effect of the provisions in Rules 3 and 4 read with Section 40 of the Act, we strike down the Tahsildar's action dated July 19, 1667 of deleting the names of the six petitioners from the voters' list and we hold that the names of these six petitioners must be deemed to be continuing in the voters' list as of and from July 18. 1967, Necessary amendments will be carried out by the Tahsildar as a result of the directions given by us above. This will not, however, mean that the question of absence of the petitioners for six consecutive months from the meetings of the Panchayat without the leave of the said Panchayat cannot be considered by the authorities prescribed. We further strike down the action of the Tahsildar rejecting the first petitioner's nomination for the purpose of his being elected. We are not, however, deciding whether the election programme, as then fixed, will be continuing or it needs to be amended by the authorities. Appropriate action in that connection can be taken as we are not dealing with that question. The rule will be made absolute with costs against respondent No. 1 who will be entitled to reimburse himself from appropriate sources.

11. Rule made absolute.


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