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Rajendra Singh Vs. State of Madhya Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectElection;Constitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 346 of 1978
Judge
Reported inAIR1979MP1
ActsMadhya Pradesh Panchayats Act, 1962 - Sections 5, 5(2), 6A(1), 11(4), 12, 17(5), 21(1), 21(2), 318 and 319(3); Madhya Pradesh Panchayats (Amendment) Act, 1978; Representation of the People Act, 1950 - Sections 19; Constitution of India - Articles 14, 20 and 326; Madhya Pradesh Gram Panchayat Nirwachan Tatha Sahyojan Niyam, 1978 - Rule 3 and 3(1); Madhya Pradesh General Clauses Act - Sections 24
AppellantRajendra Singh
RespondentState of Madhya Pradesh and ors.
Appellant AdvocateS.K. Dube and ;C.C. Dwivedi, Advs.
Respondent AdvocateK.K. Adhikari, Govt. Adv. for Respondent Nos. 1 and 2
DispositionPetition dismissed
Cases Referred(Laxmansingh v. The State of M.
Excerpt:
.....this argument is clearly fallacious. the rules clearly provide for preparation and publicationof the provisional list of voters so as to give an opportunity to all persons concerned to file their objections, if any, to the preparation of the voters list. this presumption is clearly available in the present case and nothing has been pointed out by learned counsel for the petitioner to detract from the value of that presumption......the panchayats act with its heading 'gram sabhas' contains sections 3 to 9. chapter iii is headed 'gram panchayats' and contains sections 10 to 37. section 5 lays down that for every gram sabha area there shall be a voters list prepared in accordance with the provisions of the act and the state government is empowered to make rules consistent with the act providing for the preparation, revision and correction of the list of voters from time to time. thereafter qualifications for registration as voter are laid down. section 10 lays down that for every gram sabha, there shall be a gram panchayat constituted in accordance with the provisions of the act. there is no dispute that the voters list prepared under section 5 of the act is not required for holding any other election to the gram.....
Judgment:

J.S. Verma, J.

1. The petitioner contested for the office of Sarpanch of Gram Panchayat, Goara, tahsil Mehgaon, district Bhind. The election was held on 2nd June 1978, Respondents Nos. 3 to 5 were the other contesting candidates at that election. Respondent No. 3 Madhosingh has been declared elected to the office of Sarpanch. By this petition under Article 226 of the Constitution the petitioner challenges the validity of election of the respondent No. 3 as Sarpanch on several grounds which are mentioned hereafter.

2. The petitioner has taken several grounds in this petition. For the reasons given by us in our order D/- 14-9-1978 passed in Misc. Petn. No. 95 of 1978, reported in 1978 Jab LJ 715 (Laxmansingh v. The State of M. P, and four ethers), the grounds which are available in an election petition under Section 357 of the M. P, Panchayats Act are not being considered. We are considering herein only those grounds by which the validity of certain provisions of the M. P. Panchayats (Amendment) Act, 1978 (Act No. 4 of 1978) the M. P. Panchayats (Amendment) Ordinance, 1978 (No. 4 of 1978); and the M. P. Gram Panchayat Nirwachan Tatha Sahyojan Niyam, 1978 are challenged. It may be mentioned that the M. P. Panchayats (Amendment) Act, 1978 (No. 4 of 1978) has replaced and repealed the M. P. Panchayats (Amendment) Ordinance, 1977 (No. 8 of 1977) and the M. P. Panchayats (Amendment) Ordinance, 1978 (No. 4 of 1978). Shri S. K. Dube, learned counsel for the petitioner, has made this attack to the validity of the Amendment Act, Ordinance and the 1978 Rules on several grounds which are considered hereafter.

3. The first contention of Shri S. K. Dube, learned counsel for the petitioner, is that Section 6-A (1) (a) introduced in the M. P. Panchayats Act, 1962, by the M. P. Panchayats (Amendment) Act, 1978 (hereafter called the Amendment Act) is ultra vires Section 19 of the Representation of the People Act, 1950 because it reduces the qualifying age of a voter to 18 years instead of 2l years. Learned counsel pointed out that Section 5 of the principal Act remains unchanged under which a voters list is required to be prepared in accordance with the provisions of the Act, but Section 6-A(1)(a) has been introduced to bring about the above result. Prior to the amendment, according to Section 6 of the principal Act every person who was qualified to be registered in the Assembly roll was eligible to be included in the voters list of the Gram Sabha on account of which the minimum qualifying age of a voter was 21 years as laid down in Section 19 of the Representation of the People Act, 1950. The result of this amendment is that by virtue of Clause (a) the qualifying age of a voter in the Gram Sabha has been reduced to 18 years while other qualifications for being registered as a voter remain substantially the same. This is also clear from Clause (c) in Sub-section (1) of Section 6-A introduced by amendment. Except for relying on Section 19 of the Representation of the People Act, 1950, learned counsel could not point out any other provision which prohibits reduction of the age of voter from 21 years to 18 years. Learned counsel placed reliance on Clause (c) of Sub-section (1) of Section 6-A to contend that the qualifications for being registered as a voter remain the same asthose for being registered as a voter in the Legislative Assembly electoral roll.

4. The relevant part of Section 6-A reads as under :--

'6-A. (1) Subject to the provisions of Section 6, every person who --

(a) is not less than 18 years of age on the 1st day of January of the year in which the voters list is prepared or revised:

(b) is ordinarily resident in a Gram Sabha area within the meaning of Section 20 of the Representation of the People Act, 1950 (No. 43 of 1950) subject to modification that references to 'Constituency'' therein were a reference to 'Gram Sabha area'; and

(c) is otherwise qualified to be registered in the Legislative Assembly electoral roll relatable to the Gram Sabha area;

shall be entitled to be registered in the list of voters for that Gram Sabha area.'

A plain reading of the provision shows that clause (c) does not override Clause (a) and it only provides that the qualifications other than those specified in Clauses (a) and (b) for being registered as a voter in the Gram Sabha remain the same as are prescribed for the Legislative Assembly electoral roll. To the extent that a different provision has been made, such as in clause (a), reference to the corresponding qualification for registration in the Legislative Assembly electoral roll is wholly uncalled for. The provisions in the Panchayats Act are not subject to the provisions of the Representation of the People Act, 1950. Section 19 of the Representation of the People Act, 1950 is in consonance with Article 326 of the Constitution wherein the minimum qualifying age of 21 years is laid down as a qualification for a voter for elections to the House of People and to the Legislative Assembly of every State. Obviously neither Section 19 of the Representation of the People Act, 1950 nor Article 326 govern the qualifications of a voter for inclusion in the voters list prepared under the Panchayats Act. No other statutory provision has been relied on to support this argument. Even on principle we find no flaw in this reduction of age in the qualification of a voter for the Panchayat elections. It is a matter of common knowledge that villagers most often mature at an earlier age. If the Legislature in its wisdom, unfettered by any prohibition, has thought it fit to reduce the age of a voter for the Pan-chayat elections, there is no ground on which this Court can interfere with the same. That being so, there is no merit in this argument and the same is rejected.

5. The next argument of learned counsel for the petitioner is that the proviso to Sub-section (2) of Section 21 introduced by the Amendment Act violates Article 14 of the Constitution and is, therefore, ultra vires. The relevant part of Section 21 reads as under :--

'21. (2) Every Gram Panchayat shall have an Up-sarpanch who shall be nominated by the Sarpanch from amongst the panchas of the Gram Panchayat:

Provided that if the Sarpanch of the Gram Panchayat does not belong to Scheduled Caste or Scheduled Tribe, the Up-sarpanch shall be nominated from amongst the panchas belonging to such castes or tribes'.

By this provision it is laid down that in a Gram Panchayat where the Sarpanch does not belong to the Scheduled Caste or Scheduled Tribe, the Up-sarpanch shall be nominated from amongst the panchas belonging to such castes or tribes. The object of the provision clearly is to ensure that either the Sarpanch or the Up-sarpanch of every Gram Panchayat belongs to one of the Scheduled Castes or Scheduled Tribes. It is difficult for us to appreciate how such a provision made for ensuring proper representation of the weaker section of society in the administration at the Gram Panchayat level can be said to infringe Article 14. It can hardly be doubted that the members of the Scheduled Castes and Scheduled Tribes, i.e. the weaker section of the society constitute a distinct class and some provision to ensure their participation in the administration at the village level is in consonance with the provisions of the Constitution. Adequate provision has to be made so as to provide opportunities to them to come at par with other classes of society which are better placed and more privileged. A provision of this nature is certainly in consonance with this laudable object and fully satisfies the permissible classification under our Constitution. The classification is reasonable and it has a rational nexus with the object sought to be achieved. This argument also has no merit and is accordingly rejected.

6. The next contention of learned counsel is that the voters list for the Gram Sabha prepared in accordance withSection 5 of the Panchayats Act cannot be adopted for election to the Gram Panchayat since there is no statutory provision in the Act permitting such a course. The argument is that there should be a separate provision for preparation of the voters list for election to the Gram Panchayat akin to Section 5 of the Act which provides for preparation of voters list for the Gram Sabha. Learned counsel points out that for election of a Sarpanch, the Amendment Act introduces sub-section (1) in Section 21 to make such a provision. He contends that there is no similar provision for the voters list to be used for election to the office of Panchas. This ingenious argument only shows that the legislation is not too well drafted but then there is no such fatal defect as suggested by learned counsel for the petitioner.

7. Chapter II of the Panchayats Act with its heading 'Gram Sabhas' contains Sections 3 to 9. Chapter III is headed 'Gram Panchayats' and contains Sections 10 to 37. Section 5 lays down that for every Gram Sabha area there shall be a voters list prepared in accordance with the provisions of the Act and the State Government is empowered to make rules consistent with the Act providing for the preparation, revision and correction of the list of voters from time to time. Thereafter qualifications for registration as voter are laid down. Section 10 lays down that for every Gram Sabha, there shall be a Gram Panchayat constituted in accordance with the provisions of the Act. There is no dispute that the voters list prepared under Section 5 of the Act is not required for holding any other election to the Gram Sabha except that of the Gram Panchayat constituted under the Act. Section 11 provides for the constitution of Gram Panchayat and Section 12 with the manner of election and co-option thereto. Section 318 lays down the rule making power of the State Government. Reading all these provisions as a whole, there can be no doubt that the voters list prepared under Section 5 of the; Act is for the purpose of election to the Gram Panchayat. Any other construction would render the voters list as exercise in futility because it is not required to serve any other purpose. Sub-section (1) of Section 21 introduced by amendment and relied on by learned counsel for the petitioner does not lead to the conclusion suggested by him.Prior to the amendment, the election to the office of Sarpanch was not direct and only the Panchas were elected directly. The effect of this amendment is that the Sarpanch is also to be elected directly like the Panchas. Apparently, it was for this reason that such an additional provision was considered necessary and Sub-section (1) of Section 21 was enacted. This argument also has no merit and is rejected.

8. It was also urged on behalf of the petitioner that the insertion of Sub-section (5) in Section 17 of the principal Act by the M. P. Panchayats (Amendment) Ordinance, 1978 (No. 4 of 1978) is invalid being violative of Article 20 of the Constitution. The argument is that this provision has been brought into force from 19th September 1977 even though it was published in the Gazette on 13-5-1978 and it introduces retrospectively an additional disqualification for a candidate on account of which it violates Article 20 of the Constitution. A plain reading of Article 20 shows that the same has no application. When this fact was pointed out to learned counsel for the petitioner, he had nothing more to add. It is obvious that a provision providing for disqualification for contesting an election does not amount to an ex post facto criminal law so as to attract the prohibition contained in Article 20 of the Constitution. This contention is also, therefore, rejected.

9. The next argument of learned counsel for the petitioner relates to the constitution of wards. Sub-section (4) of Section 11 introduced by the Amendment Act provides that each Gram Sabha area shall be divided into such number of wards as may be determined by the Collector and each ward shall be a single member ward. The attack is on the ground that the 1978 Rules are not framed under Section 11 (4) of the Act so that in substance there are no rules to provide guidelines to the Collector for dividing the Gram Sabha into wards. There is no dispute that Rule 3 of the 1978 Rules gives the requisite guidance and Sub-rule (1) thereof expressly refers to Section 11 (4) but the contention is that the preamble to the Rules while mentioning the other enabling provisions conferring power to frame rules, does not specify Section 11 (4) of the Act. There is no merit in this argument. As earlier stated, Rule 3 expressly refers to Section 11 (4) of theAct so that there can be no ambiguity in this respect. No doubt, while enumerating the several Sections of the Act which confer rule making power on the State Government, Section 11 (4) has not been mentioned but then the general rule making power contained in Section 318 has been mentioned as also Section 12 of the Act. We are also of the opinion that it was not necessary to specify Section 11 (4) in the Preamble to the Rules because that provision deals only with the mode of division of the Gram Sabha area into wards and not with the rule making power which is contained in different provisions of the Act which have been specified in the Preamble to the Rules. No other discussion of this point is necessary because the existence of such a power in the State Government and the actual framing of a rule to provide requisite guidance to the Collector while exercising his power under Section 11 (4) is rightly not disputed. This argument also fails and is rejected.

10. The next argument of learned counsel for the petitioner is that even though Sub-section (2) of Section 5 of the principal Act required the State Government to make rules for the preparation, revision and correction of the list of voters from time to time and publication thereof, no such rules have been framed under Section 5 (2). This argument is clearly fallacious. The aforesaid 1978 Rules which provide for these matters expressly state in its Preamble Section 5 (2) of the Act as one of the enabling provisions for framing those rules. All the matters required to bf provided for in these rules have undoubtedly been laid down. This argument is also rejected.

11. It is then urged by learned counsel for the petitioner that while reducing the qualifying age of a voter from 21 years to 18 years resulting in the increase of number of eligible voters, it was necessary to frame more elaborate rules which has not been done by the aforesaid 1978 Rules. Learned counsel points out that the relevant parts of the 1978 Rules dealing with the preparation, revision and correction of the voters list are substantially the same as those contained in the earlier set of rules of 1973 and that there is also no provision for an appeal after the final decision of the authority in accordance with Rule 8, There is no fundamental defect of any kind in these rules. The rules clearly provide for preparation and publicationof the provisional list of voters so as to give an opportunity to all persons concerned to file their objections, if any, to the preparation of the voters list. If any eligible voter is left out of the provisional voters list, the rules provide for an opportunity to him to file his objection for having his name included in the voters list before it is finalised. It is, therefore, difficult to appreciate how the provision in these rules for the preparation and publication of the voters list can be challenged as inadequate. So far as the absence of any provision of appeal is concerned, that by itself would not invalidate the 1973 Rules. For elections at the village Panchayat level, a more elaborate procedure was apparently not thought fit. It is sufficient to say that this does not in any manner show defect which can invalidate the rules. This argument also fails and is rejected.

12. It was lastly urged that the 1978 Rules were invalid because of non-compliance with sub-section (3) of Section 319 of the Panchayats Act and Section 24 of the M. P. General Clauses Act. Sub-section (3) of Section 319 only requires that all rules made shall be subject to the condition of previous publication. Section 24 of the General Clauses Act then provides for publication of the draft rules for information of persons likely to be affected, in such manner as the authority concerned deems to be sufficient, along with a notice specifying a date on or after which the draft will be taken into consideration. It also requires the authority to consider any objection or suggestion which may be received by it before the date specified. Clause (e) of Section 24 then lays down that the publication in the official Gazettee of a rule purporting to have been made in exercise of a power to make rules after previous publication shall be conclusive proof that the rule has been duly made. This presumption is clearly available in the present case and nothing has been pointed out by learned counsel for the petitioner to detract from the value of that presumption. In the present case, there is no such infirmity relating to publication of the Rules. The learned Government Advocate placed before us the M. P. Rajpatra to show that there was previous publication of the draft rules in the Gazette dated 8-2-1978 giving at the same time notice and opportunity to all concerned to submit any objections or proposals concerning the same. The finalpublication was duly made thereafter, Learned counsel for the petitioner then urged that even though due publication was made of these rules in the official Gazette as required by these statutory provisions yet the same were not published in any newspaper. It is sufficient to say that there is no such requirement prescribed by law. The only requirements of the two provisions relied on by learned counsel for the petitioner have undoubtedly been complied with. This argument also has no merit and is accordingly rejected.

13. As a result of the aforesaid discussion, it is held that there is no invalidity in either the M. P. Panchayats (Amendment) Act, 1978 (No. 4 of 1978) or the M. P. Panchayats (Amendment) Ordinance, 1978 (No. 4 of 1978) or the M. P. Gram Panchayat Nirwachan Tatha Sahyojan Niyam, 1978. The petitioner's challenge to the validity of the Act, the Ordinance and the Rules, therefore, fails. As earlier stated, any other ground of challenge falling outside the ambit of this attack cannot be gone into in a writ petition under Article 226 of the Constitution, for which the petitioner has an adequate alternative remedy by way ofelection petition under Section 357 of the M. P. Panchayats Act.

14. This petition, therefore, fails and is dismissed with costs. The respondent No. 1 State of M. P. shall get its cost from the petitioner. Counsel's fee Rs. 50/-if certified. The remaining amount of the security deposit shall be refunded to the petitioner.


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