Skip to content


Ardeshir Sorabji Mirza Vs. U.M. Bhatt - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 156 of 1958
Judge
Reported in(1958)60BOMLR803
AppellantArdeshir Sorabji Mirza
RespondentU.M. Bhatt
DispositionApplication allowed
Excerpt:
.....section 7b of the bombay village panchayats act, 1933, contemplates the preparation of only one list of voters, and that, therefore, under section 7c(2) of the act, the petitioner, although he was not a voter in ward no. 4, could claim to be elected from ward no. 4, because he happened to be a voter in ward no. 3. - - 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. the list of voters mentioned under this rule shall be kept in the panchayat chest or safe under lock and key and the officer whose duty is to keep the key of the chest or safe shall be responsible for the safe custody of the said lists. the village is composed of different wards and the division of the..........bombay village panehayats election rules, 1948. for the purpose of election to a gram panchayat a list of voters is prepared and, in substance, the list of voters for election to a gram panchayat is the list of voters prepared for an election to the bombay legislative assembly under the representation of the people act, 1950. this will be evident from section 7-b(1) which provides:the electoral roll of the bombay legislative assembly prepared under the provisions of the representation of the people act, 1950, and for the time being in force on such day as the state government may by general or special order notify in this behalf for such part of the constituency of the assembly as is included in a ward of a village shall be the list of voters for such ward or village. what, therefore,.....
Judgment:

Dixit, J.

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. The question which arises for determination depends upon the proper construction of Sections 7-B and 7-C of the Village Panehayats Act. Incidentally, it would be necessary to refer to some other provisions and, in particular, to Rules 3, 9 and 34 of the Bombay Village Panehayats Election Rules, 1948. For the purpose of election to a Gram Panchayat a list of voters is prepared and, in substance, the list of voters for election to a Gram Panchayat is the list of voters prepared for an election to the Bombay Legislative Assembly under the Representation of the People Act, 1950. This will be evident from Section 7-B(1) which provides:

The electoral roll of the Bombay Legislative Assembly prepared under the provisions of the Representation of the People Act, 1950, and for the time being in force on such day as the State Government may by general or special order notify in this behalf for such part of the constituency of the Assembly as is included in a ward of a village shall be the list of voters for such ward or village.

What, therefore, happens is that for election to a Gram Panchayat a fresh list of voters is not prepared as such, but the list of voters for such an election is to be prepared from the list of voters prepared for election to the Bombay Legislative Assembly. How the list is prepared is indicated in Rule 3. This list is to be prepared, becaiose Section 7-B(2) requires that the officers designated by the Collector in this behalf shall maintain a list of voters for each such ward or village. Rule 3 speaks of maintenance and custody of the lists of voters and by Sub-rule (1) the officer designated by the Collector has to maintain a list of voters of each ward or village. Rule 3(2) requires the officer referred to in Sub-rule (1) to carry out, from time to time, all corrections which may be made in the electoral roll of the Bombay Legislative Assembly, and this is necessary because the list of voters for a seat to the Bombay Legislative Assembly becomes, with regard to a particular village, the list of voters for election to the Gram Panchayat. Sub-rule (3) of Rule 3 then provides:

The list of voters mentioned under this rule shall be kept in the panchayat chest or safe under lock and key and the officer whose duty is to keep the key of the chest or safe shall be responsible for the safe custody of the said lists.

In passing, it may be pointed out that the expression 'lists' occurring towards the end of the sub-rule seems to be inappropriate, because Sub-rule (3) of Rule 3 begins with the expression 'the list'. The point that now arises depends tipon the proper construction of Section 7-C, and it would be necessary to refer to two sub-sections of that section. Section 7-C(1) provides:

Every person whose name is in the list of voters shall, unless disqualified under this Act or any other law for the time being in force, be qualified to vote at the election of a member for the ward to which such list pertains.

Section 7-C(2) then provides:

Every person whose name is in the list of voters shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected, and every person whose name is not in such list shall not be qualified to be elected, for any ward to which such list pertains.

The expression occurring in Section 7-B(2) viz. that 'shall maintain a list of voters for each such ward or village' would suggest, prima facie, that there would be a separate list of voters for each ward. But a little reflection will show 'that what Section 7-B(2) means is that the officers concerned will maintain a list of voters showing persons who can vote at the election to a Gram Panchayat in each ward. It is obvious that it cannot mean, and does not mean, that there would be a separate list of voters for each ward. In this connection, it is necessary to bear in mind that the election is to the Gram Panchayat at Udwada. The village is composed of different wards and the division of the village in different wards is made for the better administration of the Panchayat itself. According to Section 7-C(1), a person is 'qualified to vote at the election of a Gram Panchayat when he is a voter in a particular ward as shown in the list of voters. In other words, it means that a person who is shown to be a voter in a particular ward can vote only in that ward and in no other. Evidently, Section 7-C(1) deals with the topic of a voter's right to vote. Section 7-C(2) deals with a different subject, and Section 7-C(2) deals with the right of a person to be elected to a Gram Panchayat. The key words in Section 7-C(1) and (2) are, if I may say so, 'the ward' occurring in Section 7-C(1) and 'any ward'' occurring in Section 7-C(2), and on this question two rival interpretations are put forward. The interpretation contended for by Mr. Banaji on behalf of the applicant is that for the village of Udwada there is only one list of voters which is, of course, prepared from the list of voters for the Bombay Legislative Assembly, and in the case of a voter, 'he can vote only in the ward in which he is shown to be a voter, while in the case of a voter seeking election to a Gram Panehayat, he can contest election not necessarily in the ward in which he is shown to be a voter but in any ward to which the list pertains. On the other hand, the construction contended for on behalf of the State of Bombay by Mr. Chandraehud is that a person who claims to be a voter and wants to be elected to a Gram Panchayat can do so only from the ward in which he happens to be a voter, but he cannot claim to be elected to the Gram Panchayat from a ward in which he does not happen, to be a voter. With regard to Section 7-C(1), there seems to be no difficulty, because, as is evident from the provisions of the section itself, a person can vote only from that ward in which he is a voter. But the further question arises, can that person be restricted to contest the election only from that ward and that he cannot claim to be elected from a ward in which he is not a voter? Now, the right to vote is one thing. A person can be a voter under the Bombay Village Panchayats Act, if he is a voter in the list prepared for the Bombay Legislative Assembly. It is not in dispute that the petitioner is a voter in the list of voters prepared for the Bombay Legislative Assembly and it is not again in dispute that the petitioner is a voter in ward No. 3 in which he has a right to vote. But the difficulty arises as regards Section 7-C(2), and the principal contention urged in support of the order made by the Prant Officer is that a person can claim to be elected only in the ward in which he is a voter and in no other. On the basis that there is one list of voters for the whole of the village of Udwada, there is no difficulty in accepting the construction contended for by Mr. Banaji. The name of the petitioner is in the list of voters. Thepetitioner is not shown to be disqualified tinder the Act or any other law for the time being in force. It is not in dispute that he is qualified to be elected, and the only question is whether he can say that he can get elected from a ward in which he does not happen to be a voter. The expression, 'the ward' referred to above has an obvious reference to the expression 'list of voters' occurring in Section 7-C(1). But the contention of Mr. Chandrachud is that inasmuch as the petitioner is not a voter in ward No. 4 from which he was elected, his election is invalid, and he relies upon the expression occurring in Section 7-C(2), 'to which such list pertains'. He says that this expression means that the petitioner is a voter in ward No. 3 and, therefore, he can claim to be elected only from that ward. The real question, therefore, is whether Section 7-B contemplates the preparation of a single list of voters for the whole of the village of Udwada or contemplates the preparation of four different lists of voters for four different wards composed in the village of Udwada. In this connection, reference to Rule 3 is important, and although the marginal note to Rule 3 is 'Maintenance and custody of the lists of voters', the list of voters which governs the election is the list of voters mentioned in Rule 3(3). It is the list of voters which is to be kept under lock and key and the officer has to keep the key of the chest or safe and the officer would be held responsible for the safe custody of the said lists. The plural employed in the expression 'list' is evidently wrong. If, therefore, we accept the construction contended for by Mr. Banaji that for the election to the Gram Panchayat of the village of Udwada Section 7-B contemplates the preparation of only one list of voters, there is no difficulty in accepting the construction of Section 7-C(2) that the petitioner, although he was not a voter in ward No. 4, can claim to be elected from ward No. 4, because he happened to be a voter in ward No. 3. Support to this construction is given by Rule 9, para. 2 of which says:

When an election is held at or about the same time for two or more wards in the village, one and the same person may stand for election in all or any number of such wards.

If a person can stand for election in all or any number of such wards, it is difficult lo see why the petitioner could not claim to be elected from ward No. 4. Actually, he filed his nomination papers in respect of wards Nos. 3 and 4. 'Where a person happens to be elected from more than one ward, provision is made in Rule 34 and according to the provision contained in that rule, such a person who has been elected from two wards has to make a choice and he has to resign from one of the two seats to which he is elected.

4. 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.

5. On the finding that the election of the petitioner is a valid election, it follows that the election of opponent No. 3 which took place as a result of a bye-election must be held to be an invalid election. The election of opponent No. 3 can be supported only on the footing that the election of the petitioner was invalid. As we have declared the election of the petitioner to be valid, it follows that the election of opponent No. 3 is invalid.

6. The result is that this application will be allowed and the rule made absolute. We set aside the order made by the Prant Officer on November 25, 1957, and hold that the election of the petitioner which took place on December 16, 1956, is a valid election. We further hold that the election of opponent No. 3 which took place on January 13, 1958, is invalid. As. the question is purely one of law and was perhaps open to keen debate on either side, there will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //