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Babu Ram Vs. State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 349 of 1958
Judge
Reported inAIR1959All672
ActsUttar Pradesh Panchayat Raj Act, 1947 - Sections 6A and 11B; Uttar Pradesh Panchayat Raj Rules - Rules 5(2) and 19B
AppellantBabu Ram
RespondentState of Uttar Pradesh and ors.
Appellant AdvocateSurajnath Singh and ;R.P. Singh, Advs.
Respondent AdvocateA.P. Gupta, Adv.
DispositionAppeal dismissed
Excerpt:
.....(ii) entries in registers - finality attaches to form of registers and not to correctness of entries - person satisfying the requirement of section 5-b of panchayat raj act eligible for election of office of 'pradhan' - entries in registers are not conclusive proof - sub-divisional officer is competent to decide the question about the correct age of the person elected. - - 4. the learned judge held that himmat gir had challenged the election of the appellant not on title ground of the improper acceptance of his nomination but on the ground that there had been a gross failure to comply with the provisions of the act inasmuch as a person less than thirty years of age had been allowed to be chosen pradhan of the gram sabha in contravention of the provisions of section 5-b of the..........of the act. it is clear from section 4 of the act that only adults can be members of the gaon sabha, persons who have not attained the age of 21 years are not adults in view of the definition of the word 'adult' in clause (b) of section 2 of the act.if the register of members has such a finality as urged for the appellant in view of sub-rule (2) of rule 5, a person less than 21 years of age can be a member of the sabha and a person less than thirty years of age can be chosen pradban if their names have been recorded in the adult register by mistake. the rule will then not be helpful in carrying out the purposes of the act but will be conducive to the contravention of the provisions of the act. it cannot, therefore, be a valid rule. such an interpretation therefore is not to be given.....
Judgment:

R. Dayal, J.

1. This is a special appeal against an order of Mr. Justice Tandon dismissing a petition under Article 226 of the Constitution.

2. Babu Ram, the appellant, was declared elected Pradhan of Gram Sabha Rutha as a result of an election held in 1955. Himmat Gir, respondent No. 3, filed an election petition before the Sub-Divisional Officer and challenged the appellant's election on the ground that he was less than thirly years of age at the time of his election to the office of Pradhan. The Sub-Divisional Officer found on the basis of evidence before him that the appellant was actually less than thirty years of age at the time of his nomination and consequently allowed the election petition, set aside the election of the appellant and declared Himmat Gir to be the duly eletced Pradhan of village Rutha. The appellant then filed the writ petition and prayed for the quashing of this order of the Sub-Divisional Officer.

3. The grounds against the correctness of the order of the Sub-Divisional Officer were, firstly, that no question of improper acceptance or rejection of a nomination arose when no objection to the nomination of the appellant was taken at the time of the scrutiny of nomination papers and, secondly, that the question of the appellant being not qualified to be chosen a Pradhan on account of his being less than thirty years of age had to be decided by the prescribed authority, that is the Tahsildar, in view or the provisions of Section 6-A of the U. P. Panchayat Raj Act 194Y read with Rule 14 of the U. P. Panchayat Raj Rules.

The other grounds mentioned in the petition dealt with the correctness of the entries relied upon by the Sub-Divisional Officer or the admissibility in evidence of the documents considered by the Sub-Divisional Officer. They also challenged the propriety of declaring Himmat Gir to be the duly elected candidate. They did not however include the ground that the Sub-Divisional Officer had to accept the record of age in the village family register as correct -- a point which was raised before the learned fudge and which alone had been raised by the learned counsel for the appellant before us.

4. The learned Judge held that Himmat Gir had challenged the election of the appellant not on title ground of the improper acceptance of his nomination but on the ground that there had been a gross failure to comply with the provisions of the Act inasmuch as a person less than thirty years of age had been allowed to be chosen Pradhan of the Gram Sabha in contravention of the provisions of Section 5-B of the Act. He repelled the contentions that the Sub-Divisional Officer was bound to accept the entry about age in the family register as correct and that the Sub-Divisional Officer was not competent to decide an objection coming within the purview of' Section 6-A of the Act.

5. The question whether the Sub-DivisionalOfficer can decide on an election petition objectionswhich would otherwise come under Section 6-A of the Acthas been recently decided by this Court in AmarNath Singh v. Sub-Divisional Officer Gyanpur,Special Appeal No. 424 of 1958. It has been held that the Sub-Divisional Officer is competent to decide such objections. This question was not therefore pressed at the hearing of the appeal.

6. The first point argued for the appellant is that the entries about age in the family register must be accepted as correct by the Sub-Divisional Officer in view of the fact that Rule 5(2) of the Panchayat Raj Rules gives a finality to the register republished after the amendments made in accordance with Sub-rule (1). We do not agree with this contention.

7. Section 5 of the Act provides that a Gaon Sabha shall consist of all adults ordinarily resident within the area for which it is established and lays down certain disqualifications for membership of the Gaon Sabha. Section 5-A lays down disqualifications for holding office under the Gaon Sabha or the Nyaya Panchayat. Section 5-B is 'A member of a Gaon Sabha shall not be qualified to be chosen as Pradhan unless he is not less than 30 years of age'.

8. Section 9 of the Act provides for the preparation of the register of members, and is:

'On the establishment of a Gaon Sabha the prescribed authority shall cause to be prepared a register, in the prescribed form, of all persons ordinarily residing within the jurisdiction of such Gaon Sabha and such register shall, among other things, contain the names of every person entitled under Section 5 to be a member of the Gaon Sabha on the date of its establishment. The register so prepared shall be revised at least once a year in the manner prescribed'.

9. Chapter I-B of the Panchayat Raj Rules deals with the preparation of the register of members, its periodical revision and its custody and preservation. According to Rule 4, the register is to be prepared in accordance with the provisions of the Act, the rules contained in that Chapter and the directions issued by the Director of Panchayats. It is to be a register of the members of the Sabha,

10. Rule 4-A prescribes the form of the register, and Sub-rule (1) says that the register will be prepared in form A. According to Sub-rule (2) the register is to be in two parts; part I, called the family register, is to contain the names and particulars of all persons family-wise ordinarily residing in each village included in the Sabha, and part II, called the adult register, is to contain the names and particulars only of those adults who are entitled to be members of the Sabha under Section 5 of the Act, that is to say adults who are not disqualified, i.e. who are citizens of India or are not of unsound mind and stand so declared by a competent court. Part I of form A has twelve columns. The eighth column is for noting 'date of birth, if known, or probable date of birth' of the person concerned. Part II has nine columns. The seventh column is for 'date of birth'. It is clear that the entries in Part II are made on the basis of the entries in Part I. The names of such persons in Part I are taken over to Part II as according to the known or probable date of birth have attained the age of 21 years at the time of the preparation of the register.

11. The draft register prepared by the Secretary of the Sabha is published in view of Rule 4-F. Claims and objections to the entries in the register are filed in view of Rule 4-H and are disposed of in accordance with the provisions of Rule 4-I and Rule 6. All these claims and objections except those which raise any question of the nature referred to in Section 6-A of the Act are disposed of by the Panchayat Inspector on summary enquiry. His orders are subject to revision by the Tahsildar whose decision is final.

A copy of the Tahsildar's decision is forwarded to the Secretary of the Sabha who, in view of Sub-rule (1) of Rule 5, makes the necessary amendmentsin the draft register of members. This amended register of members is then republished in view ot Sub-rule (2) of Rule 5, and it is this republished register which Sub-rule (2) makes final. The contention for the appellant that the finality given by this rule to the register is such a finality that the correctness of the entries therein are not to be questioned by the Sub-Divisional Officer as an Election Tribunal.

12. The finality given to the register under Sub-rule (2) of Rule 5 cannot be a finality of the kind suggested for the appellant. This.is clear from the ether rules to be referred shortly, 'if Sub-rule (2) of Rule 5 gave such a finality to the entries in the register, the rule will be ultra vires of the State Government. Section 110 of the Act empowers the State Government to make rules consistent with the Act to carry out the purposes of the Act. It is clear from Section 4 of the Act that only adults can be members of the Gaon Sabha, Persons who have not attained the age of 21 years are not adults in view of the definition of the word 'adult' in Clause (b) of Section 2 of the Act.

If the register of members has such a finality as urged for the appellant in view of Sub-rule (2) of Rule 5, a person less than 21 years of age can be a member of the Sabha and a person less than thirty years of age can be chosen Pradban if their names have been recorded in the adult register by mistake. The rule will then not be helpful in carrying out the purposes of the Act but will be conducive to the contravention of the provisions of the Act. It cannot, therefore, be a valid rule. Such an interpretation therefore is not to be given to this rule unless the language of the rule forces it. In that case, as already indicated, the rule itself would be bad and would not affect the competency of the Sub-Divisional Officer to look into the contention for the defeated candidate that the person elected for the post of Pradhan was actually less than thirty years of age.

13. The relevant expression in Sub-rule (2) of Rule 5 is: 'The register so re-published shall be final'. It is not that the register so republished shall be final and conclusive. That would have been a stronger expression though even then it would be open to argument whether that would give conclusi-veness to the entries in the register. In this connection reference may be made to Sections 10, 12-C and 12-D of the Act. Section 10 makes the decision of the State Government on any dispute relating to interpretation of any provision of the Act final and conclusive.

Sub-section (6) of Section 12-C makes the order of the prescribed authority on an election petition final and conclusive and further provides that it shall not be questioned in any civil court. Similarly Section 12-D makes the decision of the prescribed authority in any dispute relating to the election of Up-Pradhan final and conclusive and also provides that it shall not be questioned in any civil court. It is to be noticed that no such expression about conclusiveness or immunity from being questioned in a civil court is used with reference to the decision of the Tahsildar in Sub-rule (4) of Rule 4-J or wish reference to the republished register in Sub-rule (2) of Rule 5.

14. Provisions in other Acts, with respect to certain orders being final have been interpreted to mean that those orders are not subject to any appeal. Those orders can be subject of revision by a superior authority. It follows that the expression 'The register so republished shall be final' simply means that the entries made after the amendments as a result of the orders of the competent authority on the claims and objections will be no more open to further claims for entries or objections requiring the deletion of entries in that register. The finality attaches tothe form of the register and not to the correctness of the entries made therein. The entries can be questioned in an appropriate manner on an appropriate occasion and can be disposed of by the authority competent to deal with the objections concerning those entries.

15. Section 9 of the Act provides for the revision of the register at least once a year and thus implies that it can be revised more frequently.

16. Rule 6 of the Panchayat Raj Rules lays down the procedure for the decision of such claims and objections which raise any question of the nature referred to in Section 6-A of the Act. It may be noticed at once that this rule follows Rule 5, and there is nothing in Rule 5 which provides for amendment of tho draft register on the basis of the decision on such claims and objections. On the other hand, Sub-rule (4) of Rule 6 provides for a copy of the order passed by the Tahsildar under Sub-rule (1) as modified in appeal, if any, under Sub-rule (3), to be forwarded to the Secretary of the Sabha and to the Panchayat Inspector. Rule 7 provides that on receipt of such a copy of the order the Secretary of the Sabha shall, if necessary, strike off the name of the person concerned from the register of members and shall send an intimation thereof to the person concerned. This rule itself therefore indicates that the entries in the republished register are not final and conclusive. They can be struck off and we think therefore their correctness can also be questioned.

17. Rule 8 provides for the making of necessary changes in the family register consequent on births and deaths, if any.

18. Rule 10 provides for special revision of the register. The Director of Pancnayats for reasons to be recorded in writing can direct the revision of a register of members or a part thereof.

19. Rule 10-A empowers the Panchayat Inspector to order the correction of any existing entry in the register of members. Of course, his orders are subject to the direction issued by the Director of Panchayats.

20. Rule 11 gives a right to any person whose name is not included in the register of members to apply to the Panchayat Inspector for the inclusion of his name, and the Panchayat Inspector, if satisfied after such enquiry as he thinks fit about his right to be registered, can direct that his name be included in the register.

21. Rule 14 deals with references under Section 6-A pertaining to disqualifications when a question referred to in Section 6-A of the Act is raised otherwise than in a claim or objection. Such a question is also decided in the first instance by the Tahsildar whose orders are subject to appeal to the Sub-Divisional Officer. Sub-rule (7) of this rule provides for the Secretary of the Sabha to strike off, if necessary, the name of the person concerned from the adult register.

22. All these various rules therefore make it clear that the entries in the republished register are open to revision, to being struck off and to being added to end therefore lead to the conclusion that the entries in the republished register are not final in the sense that their correctness must be accepted even when challenged.

23. An entry with respect to age in the register of members cannot be taken to be correct when the very basis of it can be of doubtful accuracy. Column 8 of Part I of Form A authorises the entry of the date of birth even when it is not correctly known. When a probable date of birth is noted it should be open to a person to show that what was alleged -to be a known date or to be a probabledate was not really the correct date of birth of the person concerned. A similar inference is also to be drawn from the fact that even the claims and objections to the entries in the draft register are disposed cf as a result of a summary enquiry by the Panchayat Inspector.

24. We are therefore of opinion that the entries in the register of members are not conclusive and that the Sub-Divisional Officer is competent to decide the question about the correct age of the person elected and is not bound to accept the entries in the register of members as correct.

25. Secondly it is urged for the appellant that the mere fact that the appellant though less than thirty years of age, has been elected Pradhan did not amount to the result of the election being materially affected by gross failure to comply with the provisions of the Act or the rules framed thereunder. The contention is that the Returning Officer has not failed to comply with any provision of the Act and that he has followed the correct procedure laid down by the Act and the rules. It just happens that a person less than thirty years of age was nominated and was elected by the majority of voters. Support for this view is sought from the case of Duannath Prasad v. Mulchand, AIR 1958 All 7, wherein Desai J., mentioned the various submissions made in support of such a contention at page 13 and then said as follows:

'There is much force in all these arguments advanced on behalf of the petitioner, but the opposite view has been taken by the Supreme Court in the case of Durga Shanlcar v. Raghuraj Singh, AIR 1954 SC 520.

It was held there that if a person constitutionally disqualified is elected, it is a case of non-compliance with the provisions of the Constitution. On this reasoning allowing the petitioner, if he was under age, to be elected as a pradhan would amount to non-compliance with the provisions of Section 5-B of the Act.'

The case does not support the appellant. The paragraphs on which reliance is placed are not the expressions of opinion of Desai T., but are the record of the contentions raised before him.

26. Reliance is also placed on the case of Ram Singh v. Sub-Divisional Officer Chunar, 1958 All LJ 203, wherein Oak, J. observed:

'The combined effect of Section 5 and Rule 19-B is this: A person, whose name is recorded in the Adult Register is entitled to vote, even if the name is wrongly recorded in the Adult Register. The Returning Officer and the Election Tribunal have to assume that that person is entitled to vote. The question for decision in that case was different from the question before us. An election petition was dismissed on the ground that the defeated candidate had failed to prove that six persons who had voted for the successful candidate were minors. The defeated candidate then filed the writ petition, and on the assumption that those six persons were minors Oak, J., held that if their names were on the register of electors they were entitled to vote.

With respect, it can be said that this question did not really arise in the case when on a question of fact the petitioner had failed before the Election Tribunal. The question was really decided on the basis of Rule 19-B which gave a right of vote to a person whose name was entered in the Adult Register. The validity of this rule, it may be noted, is open to question in view of Section 11-B of the Act which provides that the Pradhan shall be elected by the members of the Gaon Sabha which according to Section 5 can be adults only.

27. Reliance is further placed on the Full Bench decision in Shri Ghulam Mohiuddin V. Election Tribunal for Town Area Sakit, Civil Misc. Writ No. 1462 of 1958: (AIR 1959 All 357). That case did not relate to the election of a Pradhan of a village panchayat but related to the elction of a Chairman of a Town Area Committee, and the question to be decided was whether the Election Tribunal could look into the contention that the names of certain persons should not have found a place in the electoral rolls prepared for certain wards in the Town Area on the grounds that some of them were minors and that some did not reside within the wards concerned.

Sub-section (2) of Section 8-A of the U. P. Town Area Act, 1914, provides that the chairman is to be elected by the electors of the Town Area. The electors, according to Rule 5 of the Uttar Pradesh Town Areas (Conduct of Election of Chairman) Rules, 1953, are the electors entered in the electoral rolls of th.; wards of the Town Area. Section 6-F of the Act gave the right of vote to a person who was for the time being entered in the electoral roll of any ward.

It was in view of these provisions that the Full Bench held that it was not open to the Election Tribunal to determine whether the persons whose names were entered in the electoral roll possessed the necessary qualifications for the registration of their names in the electoral roll and that the facts that a person had not attained the age of 21 years or did not reside within a particular ward did not amount to disqualification. In the present case the question is whether the Election Tribunal can enter into the correctness of the entry in the adult register about the age of the person elected Pradhan. There is no provision in the Act that a person whose name is entered in the adult register and who is therein shown as having attain-ed the age of 30 years can be elected Pradhan.

It follows therefore that the mere entry in the adult register that a person is thirty years of age cannot make that person eligible for election to the office of Pradhan. Only the person satisfying the requirements of Section 5-B of the Panchayat Raj Act is eligible for election to the office of Pradhan and therefore it is the duty of the Election Tribunal to go behind the entries in the adult register and to find on the evidence produced whether the person elected was or was not less than thirty years of age. This Full Bench case therefore does not help the appellant.

28. For the reasons stated above we are of opinion that this appeal should fail. We accordingly dismiss it with costs.


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