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Talwar Hanumappa Holiyawwa and ors. Vs. Tirakappa Holiyavva Madar and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 161 and 162 of 1957
Judge
Reported inAIR1959Kant211; AIR1959Mys211; ILR1959KAR125
ActsBombay Village Panchayats Act, 1933 - Sections 7-B, 7-C, 7-C(3), 7(2), 8, 9, 9(2) and 108(1); Bombay Village Panchayats Act, 1956; Bombay Village Panchayats Election Rules, 1948 - Rules 3 and 4; People Act, 1950; Representation of the People (Preparation of Electoral Rolls) Rules, 1956 - Rule 26(3); Uttar Pradesh Pure Food Act - Sections 10; Companies Act; Land Acquisition Act - Sections 6(3); Representation of the People Act, 1951 - Sections 35 and 100(2)
AppellantTalwar Hanumappa Holiyawwa and ors.
RespondentTirakappa Holiyavva Madar and ors.
Appellant AdvocateH.B. Datar, Adv.
Respondent AdvocateV.S. Malimath, Adv. and ;Adv. General
Excerpt:
.....on 19-11-1956 announcing that a general election would be held on 7-1-1957, and also put up the list of voters together with a notice inviting applications from intending voters for inclusion of their names in the list. , the day previous to the day fixed for election and complain that their names were straightway included in the lists without calling for objections giving 7 days' time therefor as required by rule 26(3) of the representation of the people (preparation of electoral rolls) rules, 1956. these respondents contend that all these persons whose names were so included in the voters' lists were not residents of the hirebidri village at all that the electoral registration officer acted illegally and in contravention of rule 26(3) mentioned above and that these persons having..........every person who has attained the age of 21 years on 1st day ot january of the year in which the voters list is prepared and who ordinarily resides in the village or owns in the village a house assessed to house-tax or land assessed to cess under the bombay local boards act shall be entitled to vote at the election and section 8 inter alia provided that no person may be a member of the panchayat or continue us such who is under the age of 21 or docs not ordinarily reside in the village.by the amending act of 1956 the above provisions of original sections 7 and 8 were deleted and two new sections 7-b and 7-c, were introduced. under section 7-b provision was made to the effect that the electoral roll of the state legislative assembly prepared under the provisions of the representation of.....
Judgment:

Narayana Pai, J.

1. These two Writ Petitions arise out of an election to the Panchayat of Hirebidri village, Ranebennur, held on 7-1-1957. Writ Petition 161/57 relates to Ward No. 3 and W. P. 162/57 relates to Ward No. 1. Ward No. 3 had 2 general scouts and 1 seat re-served for Scheduled Castes. Petitioners 1 and 2 in Writ Petition 161/57 were elected to the general seats securing respectively 180 and 181 votes, the other two candidates who lost having secured 150 and 149 votes; the 3rd petitioner was elected to the reserved seat securing 172 votes, the only other contestant to that seat having secured 145 votes. Ward No. 1 had 3 seats all of which are general seats.

The 3 petitioners in Writ Petition 162/57 were elected to these 3 seats having secured 172, 164 and 161 votes respectively, the other 3 unsuccessful contestants securing 141, 136 and 131 votes. On 29-1-1957 the 1st respondent in Writ Petition 161/57 presented before the Prant Officer, Haveri, exercising the powers of Collector, a petition under Section 9 of the Bombay Village Panchayats Act for setting aside the election in respect of Ward No. 3 and the 1st respondent in Writ Petition 162/57 filed a similar petition ior setting aside the election in respect of Ward No. 1. By separate orders dated 8-6-1957 the Prant Officer set aside the elections. These Writ petitions are directed against those orders and pray for the issue of appropriate writs to quash those orders.

2. The ground on which the elections were attacked, which was accepted by the Prant Officer in setting aside the elections, was the following: The Manlatdar, Haveri. who was the Returning Officer as well as the Electoral Registration Officer, put up a notice at the village Chavadi on 19-11-1956 announcing that a general election would be held on 7-1-1957, and also put up the list of voters together with a notice inviting applications from intending voters for inclusion of their names in the list.

The 1st respondent in W. P. 161/57 and the 1st respondent in W. P. 162 of 1957 slate that 27 persons in Ward No. 3 and 18 persons in Ward No. 1 applied for inclusion of their names in the respective lists on 6-1-1957, i.e., the day previous to the day fixed for election and complain that their names were straightway included in the lists without calling for objections giving 7 days' time therefor as required by Rule 26(3) of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956. These respondents contend that all these persons whose names were so included in the voters' lists were not residents of the Hirebidri village at all that the Electoral Registration Officer acted illegally and in contravention of Rule 26(3) mentioned above and that these persons having voted at the election the result of the election has been materially affected to the prejudice of these respondents.

3. The Prant Officer wrote to the Mamlatdar, Haveli, to send him a copy of the notice, if any, put up calling for objections to the inclusion of the names of the additional voters. The Mamlatdar's office having reported that the notice so put up was not available or traceable, the Prant Officer concluded that the contention of the respondents that no such notice had been put up was correct.

The attention of the Prant Officer was drawn to Section 7-B of the Bombay Village Panchayats Act, according to which the Electoral Roll of the State Legislative Assembly under the Representation of the People Act, 1950, for the time being in force for such part of the constituency of the Assembly as is included in a Ward or a village shall be the list of voters for such ward or village, and also to Section 7-C(8), according to which for the purpose of determining whether a person is qualified to vote or not the list of voters shall be conclusive evidence subject only to any disqualifications incurred under the Act or any other law for the time being in force.

The Prant Officer held that these provisions only meant that the Panchayat Roll was only a corollary to the Assembly Roll and that any error committed in the preparation of the Assembly Roll would be an error committed by an officer charged with carrying out the rules made under Clause (c) to Sub-section (1) of Section 108 of the Bombay Village Panchayats Act within the purview ot an enquiry by the Collector under Section 9 of the Act. He further held that the voters' list would be conclusive evi-'dence only subject to disqualifications, if any, and that if it could be shown that there was an initial disqualification the list will not be conclusive evidence of the rights purporting to have been exercised in the case.

4. On behalf of the petitioners it 1ms been contended before us that the view taken by the Prant Officer regarding the effect of Section 7-B and Section 7-C of the Village Panchayats Act is opposed to rulings of Benches of this Court and that it amounts to an error apparent on the face of the judgment justifying the issue of a writ to quash those orders.

5. The Bombay Village Panchayats Act of 1933 was amended by Bombay Act XXIII of 1956. As the Act stood before the amendment, Sub-section (2) of Section 7 provided that every person who has attained the age of 21 years on 1st day ot January of the year in which the voters list is prepared and who ordinarily resides in the village or owns in the village a house assessed to house-tax or land assessed to cess under the Bombay Local Boards Act shall be entitled to vote at the election and Section 8 inter alia provided that no person may be a member of the Panchayat or continue us such who is under the age of 21 or docs not ordinarily reside in the village.

By the amending Act of 1956 the above provisions of original Sections 7 and 8 were deleted and two new Sections 7-B and 7-C, were introduced. Under Section 7-B provision was made to the effect that the Electoral Roll of the State Legislative Assembly prepared under the provisions of the Representation of the People Act, 1950, for the time being in force for such part of the constituency of the Assembly as is included in a ward or a village, shall be the list of voters for such ward or village.

Section 7-C provided that every person whose name is in the list of voters, shall, unless disqualified under the Act or any other law for the time being in force, be qualified to vote at an election to the Village Panchayat and further that subject to any such disqualification the list of voters shall be conclusive evidence for the purpose of determining whether such person is qualified to vote. Two results clearly follow from these amendments. The conditions of eligibility to vote provided under Section 7(2) of the Act became no longer applicable. The disqualifications based on age and residence provided under the old Section 8 ceased to be disqualifications under the Act.

6. The effect of these amendments has been considered by three Benches of this Court. In the case reported in Neelappa Yailappa v. State of Mysore, 36 Mys LJ 644: (AIR 1959 Mys 210), it has been held that alter the amendment, Rules 3 and 4 ot the Bombay Village Panchayats Election Rules, 1948, relating to the preparation and maintenance of the list ot voters have become inoperative and are no longer in force. Hence the preparation of the list of voters is governed nut by any Rules under the Bombay Village Panchayats Act but by Rules under the Representation ot the People Act, 1950; any irregularity in the preparation of that Roll cannot possibly be a mistake or error committed by any officer in carrying out the Rules under the Bombay Act.

In W. P. 60 of 1957 another Bench of this Court has held that once a person's name is included in the Electoral Roll of the State Assembly he would be entitled to vote and also to be elected to the Panchayat and by reason of the conclusiveness attached to the list under Section 7-C(3) it will not be open to question the inclusion of that person's name in the Electoral Roll. In W. P. No. 97 of 1958 another Bench of this Court dealing with similar provisions of the Bombay District Municipal Act has held that the inclusion of the person's name in the Electoral Roll of the State Assembly right up to the date of election to a Municipality would entitle that person to vote at such Municipal election.

7. The election in these cases was held on 7-1-1957. It is admitted that the names of the additional voters did find a place in the respective voters' lists on the date of the election. Although the respondents contended that the applications as well as the inclusion of the names in the list were made on 6-1-1937 it appears from the record that the inclusion of the names was ordered on 5-1-1957. on applications made much earlier, i.e., sometimes during the months of November-December 1956. There is no question, however, that the names did find a place in voters lists on the date of election.

In the light of the decisions of this Court already cited it has, therefore, to be held that these persons, in the absence of any disqualifications under the Bombay Act or any other law for the time being in force, were qualified to vote at the elections in question and that for the purpose of determining whether they were so qualified to vote the list of voters has to be taken as conclusive evidence. The view taken by the Prant Officer as to the effect of Sections 7-B and 7-C is, therefore, a clear error apparent on the face of his order. Sri Malimath, the learned counsel appearing on behalf of the 1st respondent in each of these cases, has, however, contended that there are certain distinguishing features in these eases which would take them outside the purview of the rulings cited above.

8. In the first place the learned counsel contends that the term 'conclusive evidence' does not mean the same thing as conclusive proof but that all that it means is that no formal proof other than the production of the voters' list is necessary leaving it open to opposing parties to lead evidence in rebuttal of the evidence furnished by the voters' list. He relies upon the judgment of a single Judge of the Allahabad High Court reported in Dindayal v. The State : AIR1956All520 . Under Section 10 of the U. P. Pure Food Act it was provided that a certificate issued by Public Analyst was to be conclusive evidence of the facts stated therein.

In coining to the conclusion that this meant no more than a presumption his Lordship Roy J. took into account that under one of the rules framed under the Act it was provided that unless the contrary is proved the ghee in question will not be regarded as of the standard prescribed under that rule. His Lordship stated that the only way in which this apparent inconsistency between the Section and the Rule can be reconciled is to hold that Section 10 provided only for a' rebuttable presumption. With great respect we find ourselves unable to agree with either the conclusion of the learned Judge or the reasoning on which it is based.

It is, in our opinion, well established that when a Statute states that a particular fact shall be conclusive evidence of another fact, once the evidentiary tact is placed before the Court, the Court is precluded from enquiring further into the matter but is bound to accept that fact as conclusively proving the other fact. In Moosa Goolam Ariff v. Ebrahim Goolam Ariff, ILR 40 Cal 1 (PC), Lord Macnaghten dealing with the provision of the Companies Act, which declares a certificate of incorporation of a company to be conclusive evidence that all preliminaries required by the Statute have been complied with, definitely states that even on the assumption that the conditions of registration prescribed by the Companies Act were not duly complied with, the certificate of incorporation has to be accepted as conclusive for alt purposes.

His Lordship also refers to the remarks of Lord Cairns in Peel's case; In re Barned's Banking Co., (1867) 2 Ch A 674 to the effect that the certificate of incorporation is not merely a prima facie answer but a conclusive answer to arty such objection and that when once the certificate of incorporation is given nothing is to be enquired into as to the regularity of the prior proceedings, It is unnecessary to cite further cases in support of this principle.

9. It was next contended by the learned counsel that the con elusive ness attached to the voters' list under Section. 7-C(3) was available only in respect of a validly prepared list and that it was open to him to show that the list itself was invalid. This argument involves a fallacy. When the learned counsel says that he is not questioning the propriety of the inclusion of particular names in the list but is only trying to show that the list has become invalid by reason of disobedience of the rules regarding its preparation, he forgets that such an attack on the validity of the list is not different from an attack that the inclusion of particular names was improper, and while trying to show that the list is invalid he is really asking the Collector to enquire into the regularity of its preparation which is the very thing that is barred by the express provision of the Statute that the list shall be conclusive evidence.

The observations of Greaves J., in Manick Chand v. Corporation of Calcutta, ILR 48 Cal 916: (AIR 1921 Cal 159) to the effect that the conclusive-ness of a declaration under Section 6(3) or the Land Acquisition Act does not debar a Court from enquiring into the validity of the steps which led up to that declaration are distinguishable; as pointed out in Secretary of State v. Akbar AH, ILR 45 All 443: (AIR 1923 All 523) the decision in that Calcutta case turned upon the fact that the Calcutta Corporation had no statutory powers to take steps at all for the acquisition of the land in question.

Further, the list of voters for Panchayat Elections under the Bombay Village Panchayats Act is not a list prepared under that Act at all but is the relevant part of the Electoral Roll of the State Legislative Assembly prepared under another Statute altogether and the Bombay Village Panchayats Act contains no provisions under which either the validity of the list or of any anterior details in regard to its preparation can be called into question. The Representation of the People (Preparation of Electoral Rolls) Rules. 1956, provide a complete machinery with regard to the preparation of the roll and the examination of all claims and objections, with respect thereto.

10. The learned Counsel next contended that the voters' list was conclusive evidence for the purpose of determining whether a person was qualified to vote only under Section 7-C, but that in an enquiry under Section 9, it will not be conclusive. For this purpose, he relies strongly on the expression 'under this section' occurring in Section 7-C(3). We do not think, however, that these words limit the conclusive-ness of the list in the manner suggested by the learned counsel. When Sub-section (3) says that the list will be conclusive evidence for the purpose of determining under that Section whether any person is qualified or not qualified to vote, etc., it has reference to the circumstance that the right to vote and the right to be elected are both conferred by that Section itself in the Sub-sections (1) and (2) respectively.

It is merely indicative of the fact that the source of the right to vote and of the right to get elected is to be found in that Section and does not mean that it has no relevance in an enquiry under Section 9. The learned Counsel referred to a judgment of the Supreme Court reported in Durga Shankar Mehta v. Raghu Raj Singh : [1955]1SCR267 , in support of the proposition that although at the time of the scrutiny of a nomination paper under Section 35 of the Representation of the People Act, 1951, the production of a certified copy of an entry made in the Electoral Roll of a constituency is conclusive evidence of the right of the elector named in that entry to stand for election or to subscribe a nomination paper, the same did not prevent an Election Tribunal trying an Election Petition from enquiring into the disqualification of such elector which the Returning Officer has failed to do at the time of scrutiny of a nomination paper.

A careful reading of their Lordships judgment, however, does not support the contention of the learned counsel. Their Lordships do not say that the entry in the Electoral Roll which was conclusive before the Returning Officer at the time of scrutiny of the nomination papers ceases to he conclusive in an enquiry before an Election Tribunal. The collusiveness of the entry under Sub-section (7) of Section 36 is itself subject to the condition that it is open to prove that the elector is disqualified under the Constitution or under that Act. All that their Lordships say is that if no objection is taken before the Returning Officer at the time of the scrutiny of a nomination paper he is bound to accept the entry in the Electoral Roll as conclusive, but that an Election Tribunal may, on evidence placed before it, give a finding that the elector was not qualified at all.

This is so because under Clause (c) of Sub-section (2) of Section 100 of the Representation of the People Act, 1951, a Tribunal may declare the election of a returned candidate void if it is of the opinion that the result of the election has been materially affected by any non-compliance of the provisions of the Constitution, which, their Lordships hold, was wide enough to comprise a fundamental disability in the candidate to stand for election. The provisions of Section 9 of the Bombay Village Panchayats Act, however, permit a Collector to set aside an election only on one or other of the following four grounds, viz.,

(1) a disqualification under the provisions of Section 8 of the Act.

(2) any corrupt practice under Section 9(2),

(3) any irregularity in connection with the election and

(4) any error committed by any officer charged with carrying out the rules under Clauses (b) and (c) of Sub-section (1) of Section 103.

The contention of the type alleged in this case does not come under any one of these headings. The view of the Prant Officer that there was an error committed by any Officer under the Bombay Village Panchayats Act in carrying out any of the rules mentioned above is obviously wrong in the light of the decisions of this Court already cited by us.

11. Lastly, the learned counsel contended that the Electoral Roll of the State Legislative Assembly relating to the village or ward in question for the time being in force referred to in Section 7-B meant only the roll or list as at the commencement of the election. He relies upon the observations of the Supreme Court of India in Ponnuswami v. The Returning Officer, Namakkal : [1952]1SCR218 , that the term 'Election' would mean the whole procedure of election and is not confined to the final result thereof. At one stage he slated that the list published at the village Chavadi on 19-11-1956 was the only list that could be looked into and that subsequent inclusions therein must be excluded.

At another stage of the argument he was prepared to go so far as to accept the list as at the time of the nomination of candidates for election. We see no force in this argument. Section 7-B of the Bombay Village Panchayats Act nowhere contains the word 'Election'. It simply states that the Electoral Roll of the State Legislative Assembly for the time being in force shall be the Electoral Roll of the village or ward as the case may be to the extent the former relates to the village or ward as the case may be. On a plain reading of the section, the expression 'list for the time being in force' can only mean the list in force at the time when a reference thereto becomes necessary.

If the enquiry is whether a person is entitled to be nominated for election, the list in force would ho the list as on the date of the nomination. If the enquiry is whether a person is entitled to vote, the list in force would be the list as at the time of polling. The question in these cases being whether the additional voters whose names were included on 5-1-1957 were entitled to vote on 7-1-1957, it is clear that their names did appear on the list in force on the relevant date.

12. The result is that the names of 27 persons in ward No. 3 and 18 persons in ward No. 1 did appear in the list of voters relating to the respective wards on the date of election or polling, that they were, therefore, qualified to vote at the election and that no disqualification having been proved to have been incurred by any of those persons the list of voters was conclusive evidence for the purpose of determining whether they were qualified to vote. Consequently, the Prant Officer had no jurisdiction to go behind the list and to enquire into the regularity or otherwise of the inclusion of their names in the list for the purpose of deciding the petitions under Section 9 of the Bombay Village Panchayats Act. In view of this, the further question whether voting by them materially affected the result of the election did not fall to be decided under Section 9.

13. Both the writ petitions are, therefore, allowed and tho two orders of the Prant Officer dated8-6-1957 setting aside the election of the petitionersin tho two writ petitions to the 3 seats of ward No.3 and the 3 seats of ward No. 1 respectively of Hire-bidri village at the election held on 7-1-1957 arequashed. In each of the petitions, the first respondent will pay the costs or the petitioners. Advocate's fee Rs. 100/- in each case.

14. Petitions allowed.


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