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Adhikari Rama Chandra Das Vs. Bhramarbar Naik and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtOrissa High Court
Decided On
Case NumberOriginal Jur. Case No. 835 of 1971
Judge
Reported inAIR1974Ori6
ActsOrissa Gram Panchayat Act, 1965 - Sections 10(1); Orissa Gram Panchayat Rules, 1965 - Rules 4, 8, 9 and 10; Representation of People Act
AppellantAdhikari Rama Chandra Das
RespondentBhramarbar Naik and ors.
Appellant AdvocateAshok Das and ;S.N. Satpathy, Advs.
Respondent AdvocateAdv. General, ;J.K. Mohanty and ;H.K. Rout, Advs.
DispositionPetition dismissed
Cases Referred(Faiju v. Civil Judge. Junior Division
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....r.n. misra, j.1. this is an application for a writ of certiorari directed against the appellate order of the district judge of puri made under section 38 (4) of the orissa grama panchayat act. 1964 (1 of 1965) ((hereinafter referred to as tine act). in june 1970 election for the office of the sarpanch of the dhanakera grama panchayat in the district of puri was held. the petitioner and the opposite party no. 1 contested the said election. the petitioner having secured the highest number of votes was declared elected as sarpanch on 29-6-1970 by the election officer. the opposite party no. 1 filed an election petition under section 30 of the act challenging the petitioner's election on the ground that the election was void as the petitioner's name was not on the elector? roll of the.....
Judgment:

R.N. Misra, J.

1. This is an application for a writ of certiorari directed against the appellate order of the District Judge of Puri made under Section 38 (4) of the Orissa Grama Panchayat Act. 1964 (1 of 1965) ((hereinafter referred to as tine Act). In June 1970 election for the office of the Sarpanch of the Dhanakera Grama Panchayat in the district of Puri was held. The petitioner and the opposite party No. 1 contested the said election. The petitioner having secured the highest number of votes was declared elected as Sarpanch on 29-6-1970 by the Election Officer. The opposite party No. 1 filed an election petition under Section 30 of the Act challenging the petitioner's election on the ground that the election was void as the petitioner's name was not on the elector? roll of the Dhanakera Grama Panchayat on the date appointed for receiving objections for correcting the electoral list of the Grama Panchayat and that the petitioner was a permanent resident of Puri town and he could not have contested the election under the Act. The petitioner took the stand before the Election Commissioner that the petitioner had properties within the Panchayat and was entitled to be a voter from the said area under the Representation of the People Act. 1950 in respect of the Satyabadi Assembly Constituency within which the village was located. He applied to the Electoral Registration Officer under the Representation of the People Act and got his name entered in the electoral roll of the Satyabadi Assembly Constituency on 19-5-1970, In the electoral roll of the Dhanakera Grama Panchayat his name was entered on 22-5-1970. Since the electroal roll for the Assembly Constituency is the roll for election to the Grama Panchayat the petitioner was entitled to contest the election. The Election Commissioner did not accept the petitioner's contention. On the other hand he came to the conclusion that the petitioner was not qualified to contest the election. Accordingly the said election was set aside. The appellate authority affirmed the order of the Election Commissioner.

2. There is no dispute regarding the following facts along with the dates indicated therein.

30-4-1970

Objection was invitedunder Rule 8 of the Orissa Grama Panchayats Election Rules, 1965(hereinafterreferred to as the Rules).

7-5-1970

Last date for receipt ofobjection.

9-5-1970

Petitioner applied for inclusionof his names in the AssemblyElectoral Roll.

22-5-1970

Correction in theAssembly Electoral Roll was ordered. The name of the petitionerwas entered in the Grama Panchayat.

23-5-1970

Nomination.

3. When this writ application came up for hearing before a Division Bench Mr. Das for the petitioner relied upon a decision of this Court in (1971) 1 Cut WR 433 = (AIR 1972 Orissa 59) M.M. Senapati v. Election Officer cum S.D.O., Sadar, to contend that if the petitioner's name was in the electoral roll in the Assembly Constituency so far as it related to that Grama the petitioner was entitled to contest the election for Sarpanch. On behalf of the opposite parties reliance was placed on a later decision of this Court in (1972) 38 Cut LT 191 (Ram Chandra Deo v. Election Officer, Nayagarh). The Division Bench found the decisions to be contradictory to each other and therefore, directed the writ application to be placed before a larger Bench for hearing and also to decide as to which of the two decisions was in accordance with law.

4. It is necessary that the legal position must be first ascertained. This requires reference to the Act and the Rules. The relevant provisions of the Act are Sections 4 (1), 9, 10 (1) and 27. For convenience we extract them:--

'4 (1) For every Grama there shall be a Grama Sasan which shall be composed of all persons registered by virtue of the Representation of the People Act. 43 of 1950 in so much of the electoral roll for any Assembly Constituency for the time being in force as relates to the Grarna and the said portion of the roll shall be deemed to be the electoral roll in respect of the Grama.

9. Electors and electoral rolls -- So much of the electoral roll for any Assembly Constituency for the time being in force as relates to the area comprised within a ward shall be embodied in a register to be maintained for the ward and such register shall be deemed to be the electoral roll for the ward for the purposes of the Act.

10 (1). Every Grama Panchayat shall be composed of the following members, namely-

(a) a member to be elected by the persons referred to in Sub-section (1) of Section 4 from amongst themselves who shall be Sarpanch; and

(b) a member to be elected from each of the wards by the persons on the electoral roll for the ward from amongst themselves.

27. Manner of holding elections--(1) The election of a member, Sarpanch and Naib-Sarpanoh of a Grama Panchayat shall be held and conducted in prescribed manner.

(2) Without prejudice to the provisions of Sub-section (1) the State Government may make rules to provide for or regulate all or any of the following matters for the purpose of holding elections under this Act namely-

(a) the manner of splitting up of Electoral Rolls for the Assembly Constituencies into parts for the purpose of constituting one or more of such parts into the electoral roll for a Grama. Palli Sabha and a ward, the manner of revision of such roll from time to time and the officer or authority by whom such splitting up or revision is to be carried out:

X X X X X(f) any other matter relating to elections or election disputes in respect of which the State Government deem it necessary to make rules under this section or in respect of which this Act makes no provision or makes insufficient provision and provision is in the opinion of the State Government necessary.'

A set of rules known as the Orissa Grama Panchayats Elections Rules. 1965 have been made under the Act. Rules 4, 6, 8, 9, 10, 11 and 12 are material for the present application. Those rules are:

'4 So much of the electoral roll for the Assembly Constituency as relates to the Grama and in force on the date on which objections are invited under Rule 8 shall be deemed to be the electoral roll in respect of the Grama. As soon as may be after the division of wards, the Election Officer shall cause to split up the electoral roll for each Grama so as to have a separate electoral roll for each ward as notified under Rule 3. The list of voters for each ward shall be prepared in alphabetical order or in whatever order they occur in Assembly Constituency Rolls in Form No. 1 in a register and authenticated by the Election Officer.

6. The Electoral Roll for each ward shall be revised from time to time on the basis of the revisions of the Assembly electoral roll as may be taken up from time to time under the Representation of the People Act. 1950 and the rules made thereunder.

8. At least six weeks before the dates notified for general election, a copy of the electoral roll for the entire Grama arranged according to wards shall be published at a conspicuous place at the headquarters of the Grama Sasan together with a notice in form No. 2 stating the date by which objections may be received and the date on which enquiries will be taken up.

9. Objections may be entertained on the only question that any entry in the electoral register maintained in the Block Office is not in conformity with the corresponding entry in the relative electoral roll of the Assembly Constituency. No objections of any other nature shall be entertained. A period of not less than seven days from the date of publication of copy of the electoral register shall be allowed for filing objections.

10. The objections as may be received shall be enquired into by the Election Officer on the date fixed. Such date shall be as far as practicable, within seven days after the last date for filing objections. The Election Officer shall duly consider the objections and dispose them of after hearing such of the parties who may be present on the date of hearing. He shall also announce his final decision after the close of enquiry on each objection. The electoral register for each ward maintained in the Block Office shall be corrected, if necessary, on the basis of the orders passed on the objections and the register as so corrected and authenticated by the election officer shall form the final electoral roll for the general election.

11. The procedure laid down in Rules 4 to 10 shall be applicable if ageneral election is held either by efflux of time or for any other reason to even a single Grama Panchayat. Such rules shall not, however, be applicable to bye-elections held to fill up casual vacancies in any office either due to death, resignation or otherwise.

12. Immediately after the electoral roll for each ward is finalised under Rule 10, the Election Officer shall cause to be prepared a copy thereof and the copy so prepared and duly authenticated by him shall be supplied to the Presiding Officer of the polling station concerned. This copy shall form the working copy for use at the polling station by the Presiding Officer during poll. Another authenticated copy of the electoral roll for each ward shall also be exhibited at the polling station for the ward during the rolling hours.'

5. Section 4 (1) refers to 'the electoral roll for any Assembly Constituency for the time being in force as relates to the Grama' as the electoral roll in respect of the Grama. Emphasis is laid on the words 'for the time being in force'. Section 9 also contains the same provision and the obvious emphasis is on the phrase 'for the time being in force.' Section 10 (1) (a) which deals with the election of the Sarpanch provides that a member is to be elected by the persons referred to in Sub-section (1) of Section 4 from amongst themselves as Sarpanch. The main question for consideration is as to whether election for the Grama Panchayat is to be held on the basis of the electoral roll for the Assembly Constituency as relates to the Grama or on the basis of an independent electoral roll to be prepared for the purpose of the election on the basis of the electoral roll for the Assembly Constituency. An analysis of the scheme adopted under the Rule makes it clear that a different electoral roll made on the basis of the electoral roll for the Assembly Constituency as relating to the Grama and in force on the relevant date as indicated in Rule 4 and modified in the process indicated in Rules 8, 9 and 10 is the electoral roll on the basis of which elections for the purpose of Section 10 (1) of the Act are to be held. The electoral roll for the Assembly Constituency prepared under the Representation of the People Act. 1950 has been adopted as a convenient basis not only for the Grama Panchayat elections but it has also been so done for election to the municipal and the other local bodies. A reference to Section 13 (1) of the Orissa Municipal Act is relevant for this purpose In the States of Bihar and Bombay a similar scheme has also been adopted. We shall now refer to some of the decisions of the Patna High Court dealing with the scheme operating in Bihar for holding of Grama Panchayat elections. In AIR 1966 Pat 23 (Awadhesh Prasad v. Tarkeshwar Singh) Narasimham. C. J. extracted Rule 5 of the Bihar Rules which provides as follows:--

'So much of the electoral roll or rolls of an Assembly Constituency of the State of Bihar, for the time being in force, as relates to the areas Comprised within the local limits of the jurisdiction of a Panchayat shall be deemed to be the voter's list for the Panchayat for the purpose of election of Mukhiya and Sarpanch and so much of the said electoral roll or rolls as appertain to a particular ward constituted under Rule 4 of these rules, shall be deemed to be the voter's list of that particular ward for the purpose of election of Panch and Member of the Executive Committee from the ward concerned.'

Dealing with the scheme the learned Chief Justice stated:--

'But the mare difficult question to decide is whether the same principle can be applied so far as the election to a Gram Panchayat is concerned. I have already quoted Rule 5 of the Grain Panchayat Election Rules. Do the words 'for the time being in force' in Sub-rule (1) of the said rule mean the roll as finally published which is in existence on the date of the commencement of an election or do they include even the additions and corrections that may be made upto the date of the poll? It is true that the expression 'for the time being is somewhat ambiguous, and as pointed out in Stroud's Judicial Dictionary, 3rd Edition, at page 3030, the phrasa 'for the time being' may, according to its context, mean the time present, or denote a single period of time; but its general sense is that of time indefinite, and refers to an indefinite state of facts which will arise in the future, and which may (and probably will) vary from time to time On behalf of the appellant it was urged that the said phrase should be so construed as to refer to an electoral roll as amended till the date of the poll and that the lower Court was not justified in construing it so as to make it applicable to the electoral roll as it was on the date of the commencement of the election.

It is true that Sub-rule (1) of Rule 5 of the Bihar Panchayat Election Rules contains the other words 'for the purpose of election'. But as pointed out in the well-known decision of the Supreme Court in N.P. Ponnuswami v. Returning Officer. Namakkal, A. I. R. 1952 S. C. 64, the word 'election' has been used in the Constitution in the wide sense so as to include the entire process of election, commencing with the issue and ending with the declaration of election of a candidate. Counsel for the appellant, therefore, contended that, if before the date of the poll some persons are enrolled as voters in accordance with the provisions of the Registration of Electors Rules. 1960, their right to vote for the Gram Panchayat election should not be taken away even though their names might not have been included when the roll was finally published. Counsel, therefore, urged that the Division Bench decision in A. I. R. 1964 Patna 459 may require reconsideration, and suggested that the matter may be referred to a larger Bench.

The question is not free from difficulty. The answer will depend on whether the words 'for the purpose of election' in Rule 5 (1) should be so construed as to refer to the date of the commencement of the 'election, or else whether they should be construed as extending upto the date of the termination of the election, namely, the date of poll. Mr. Bhubaneswar Dhari Singh on behalf of the Government urged that the point was of great importance as it would affect many other election disputes and that it was desirable to constitute a larger Bench to examine the correctness of the aforesad Division Bench decision. But for the reasons to be stated in the subsequent paragraphs I do not think it will be proper to constitute a larger Bench for the disposal of this appeal. If the Government so desire, they can easily amend the Bihar Panchayat Election Rules. 1959, in exercise of their rule making power, so as to make it clear beyond any doubt that though an election to a Panchayat may commence on the basis of the electoral roll as finally published nevertheless persons who are enrolled as voters upto the date of the poll may also be permitted to exercise their right of franchise. When there is no such express provision in the rule I do not find any special reason as to why the principle laid down in the aforesaid Division Bench decision should not be fallowed.'

The Division Bench decision referred to by Narasimham, C. J. is the case reported in A. I. R.. 1964 Pat 459. (Biswanath Prasad v. Ramji Prasad). The election in dispute there was in respect of a Commissioner under the Bihar and Orissa Municipal Act, 1922, Mohapatra. J. one of the learned Judges constituting the Division Bench added to the main judgment by saying-

'When Rule 4 prescribes that the electoral roll for the connected Assembly constituency which is for the time being in force will be deemed as the electoral roll for the purpose of election of Municipal Commissioners, it Cannot but mean that one and the same electoral roll of the Assembly constituency which was in force at the time of the commencement of the election is to be deemed to be the relevant electoral roll for the whole of the Municipal election. If it were not so and if different electoral rolls could be brought to use at different stages of an election, it is bound to create not only confusion but also it would lead to absurd situations; for instance an elector whose name was on the electoral roll at the time of nomination and who filed a valid nomination paper to be elected as a Commissioner may find his name deleted from a subsequent electoral roll that may have been prepared by way of revision as provided in the Representation of the People Act. 1951), and the rules thereunder, and will, therefore, not be entitled to 'vote at the polling. If the revised roll, published subsequent to the date of nomination, is again deemed to be the electoral roll for the same municipal election, his nomination having been valid, he can as well be elected as a Commissioner although he would have ceased to be an elector, according to the revised roll, on the date of polling. Let us assume his name might have been removed from the revised electoral roll on a valid objection raised against him, according to the rules under the Representation of the People Act. The electoral roll is the very basis of an election, whether it is for the Municipality or for the Assembly and there must be certainty about it throughout the whole process of an election.'

It is this reasoning that the learned Chief Justice referred to in his judgment There are two more decisions of the Patna High Court which also throw light on the point. In 1966 B. L. J. R. 316 (Bihari Sah v. P.V. Padadhikari) Rule 5 of the Bihar Panchayat Election Rules was dealt with, A learned Judge of that Court stated;

'Assembly Electoral Rolls are subject to revision under the provisions of Representation of the People Act and the rules made thereunder. That process continues irrespective of the fixture of Gram Panchayat election. The process of revision will not affect any Gram Panchayat election in any way and for that Purpose, Rule 5 of the Bihar Panchayat Election Rules provides that the Assembly Electoral Roll which is in force for the time being, that is, at the time when the Gram Panchayat Election commences will be deemed to be the electoral roll for the whole of that election. In other words, whatever be the revisional process or whatever be the result of the revision of the Assembly Electoral Roll subsequent to the date of notificationwill not affect any proceedings of the Gram Panchayat election.'

To the same effect is another decision of that Court reported in 1967 BLJR 24 (Parameshwar Pasi v. Block Development Officer), Therein it was stated.

'.....the electoral roll of the Assembly Constituency for the area comprised in a Gram Panchayat shall be the voter's list for holding election to the Gram Panchayat as well. That must be the voter's list, as it stands, on the date the election programme has been published. It is so, among others, for the obvious reason that the candidates must know who are the voters whom they have to approach for casting their votes which will enable them to assess the strength of their supporters in the Gram Panchayat before they would offer themselves as candidates. Obviously, therefore, any revision made in the voter's list after the publication of the election programme can never be taken into consideration'

A Bench of the Bombay High Court in AIR 1964 Bom 160 (Faiju v. Civil Judge. Junior Division) was dealing with the Bombay Village Panchayats Act and elections held thereunder. In paragraph 9 of the judgment it has been stated.

'It is clear that under Sub-section (1) of Section 12 the electoral roll of the Bombay Legislative Assembly prepared under the provisions of the Representation of the People Act, 1950 is to be regarded as the list of voters for the Ward or the village concerned. But this is subject to one qualification which has to be read in sub-section (1) of Section 12 because of the words used in that subsection 'and in force on such day as the State Government may by general or special order notify in this behalf.....' in other words, it is not the law that the electoral roll of the Bombay Legislative Assembly once prepared under the provisions of the Representation of the People Act, ipso facto becomes the list of voters for the ward or the village concerned at any ensuing panchayat election. It is that electoral roll of the Bombay Legislative Assembly which is in force on a certain selected date which alone becomes 'the list of voters' for the purposes of the panchayat elections.'

6. Though in Section 4 (1) of the Act there is no provision as indicated in Section 12 (1) of the Bombay Act from the phrase 'for the time being in force it has to follow that the Assembly electoral roll as it stands on the appointed date for the purpose of the Gram Panchayat elections is to be taken into consideration. We agree with the reasonings indicated in the several decisions of the Patna High Court which we have referred to above that unless that interpretation is accepted, confusion would enter into the elections. Under the Representation of the People Act and the Rules made thereunder the electoral roll is available to be revised until the date of nomination. The entire scheme under Central Act 43 of 1950 and the Rules made thereunder has not been embodied in the Orissa Act and the Rules. For convenience the electoral roll prepared under the Central Act as it stands on a particular date has been taken as the basis and the principle has been accepted that one whose name is not there in the Assembly electoral roll for the time being in force would not be permitted to participate in the election. That is why Rule 9 of the Rules clearly indicates that objections which are open to be taken are limited to bringing the name in the roll in conformity with the corresponding entry in the relative electoral roll of the Assembly Constituency. Alterations and modifications made to the Assembly electoral roll for the time being in force after the appointed date are not relevant for the Gram Panchayat elections. Rule 6 of the Rules is a general provision and is not material for the present purpose. Under Rule 13 the State Government is to notify the election programme. Rule 4 is referable to Section 4 (1) and Section 9 of the Act. The first part is in terms of Section 4 (1). The second part refers to Section 9. Section 9 deals with the electoral roll of wards. Section 10 (1) (b) deals with election of ward members. The electoral roll referred to in Section 10 (1) (b) is the electoral roll provided for in Section 9 of the Act. Election for the Sarpanch under Section 10 (1) (a) is on the basis of the electoral roll referred to in Section 4 (1) of the Act, but it is that electoral roll which is in force at the time when election was notified to be held under the Act.

7. There is no ambiguity in Rule 4. It clearly states that the electoral roll for the Assembly Constitutency in force on the date on which objections are notified under Rule 8 is to be deemed to be the electoral roll in respect of the Grama. 'For the time being in force' as indicated in Section 4 has now been given an unambiguous fixity in point of time. Mr Das contended that the fixing of the time limit in Rule 4 is in excess of the statutory provision. We do not agree Nor are we prepared to accept his contention that the phrase 'for the time being in force' cannot be construed to mean 'in force on the date on which objections are invited under Rule 8'. The reasoning for our not accepting Mr. Dass contention has been clearly indicated in the several decisions of the Patna High Court to which we have already referred.

8. The objections were invited under Rule 8 in the present case on 30-4-1970. That therefore, was the relevant date and the electoral roll for the Assembly Constituency as existing on that day was the electoral roll for the purpose of Section 10 (1) (a) of the Act. If the petitioner's name was not there in the roll by that day (then it cannot) be brought in in view of the clear provision of Rule 9, Any subsequent revision of the electoral roll under Central Act 43 of 1950 would not improve the situation. On the aforesaid finding of ours, the petitioner's application must fail and the order of the learned District Judge in appeal under the Act must be upheld. The writ application is dismissed. The opposite parties shall have their costs of this proceeding. Hearing fee is assessed at Rs. 200/- to be shared equally by the opposite parties 1 and 2 only.

9. Now we shall deal with the two decisions of this Court. For convenience we refer to the case reported in. (1971) 1 Cut WR 433 = (AIR 1972 Orissa 59) as Senapati's case and the case reported in (1972) 38 Cut LT 191 as Deo's case. In Senapati's case the dispute was in relation to election to the office of the Chairman of a Panchayat Samiti. Section 16 (3) (a) of the Orissa Panchayat Samiti Act of 1959 provides that the members of all the Grama Pan-chayats within the jurisdiction of the Samiti shall, in the prescribed manner elect the Chairman of the Samiti from among persons who are elected as or are eligible to be elected as, members of any such Grama Panchayat. That necessarily brings in Sections 4 (1) and 10 (1) of the Act. This Court rightly referred to Section 9 of the Act to cover electoral roll of the wards on the basis of which members under Section 10 (1) (b) are to be elected, and' Section 9, therefore, had no reference to the election of the Sarpanch In regard to the Sarpanch it was very appropriately stated.

'In respect of him the electoral roll is the one contemplated in Section 4 (1) that is the electoral roll of the Assembly Constituency so far it relates to the Grama.'

This in our view was the right analysis of these provisions.

From the judgment in Senapati's case it does not appear that by the relevant date the petitioner's name was not in the electoral roll of the Assembly Constituency. As it appears, his name was in that roll but was not included in the Grama Panchayat roll. In view of the fact that his name did not appear in the roll contemplated under Section 9 of the Act. his nomination had been rejected. This Court came to hold that Senapati's name being in the roll referred to in Section 4 (1) of the Act he was entitled to contest the election for the post of Chairman of the Samiti on the footing of the provisions of Section 16(3) (a) of the Panchayat Samiti Act read with Section 10 (1) of the Grama Panchavat Act. It must not be forgotten that under the latter provision even a Sarpanch is also a member of the Grama Panchayat. It is in that sense that it was' said:--

'When the petitioner's name is admittedly in the electoral roll of the Assembly Constituency so far as it related to that Grama, he is eligible on that basis to be elected as a member of the Grama Panchayat under Section 10 (1) (a).'

In our view, there is nothing wrong in the decision.

10. In Deo's case the election in dispute was also to a Panchayat Samiti. Deo's name did not find place in the Assembly Electoral Roll published on 15-1-1970. In the electoral roll of the Grama Panchavat published on 1-5-1970 under Rule 8 of the Rules, his name appeared. In July, 1970. Deo was elected as Sarpanch of a Grama Panchayat. The relevant Question that was posed for consideration in paragraph 6 of the judgment was to the following effect:--

'Is a person who is either elected as or is eligible to be elected as a member of any such Grama Panchayat eligible to be Chairman of the 'Panchayat Samiti even though his name does not occur in the Assembly Electoral Roll though it finds place in the electoral roll of the Gramas?.'

In attempting to answer this question reference was made to Senapati's case and it was said thus:--

'A Bench of this Court after examining Sections 4 (1). 8, 9 and 10 (1) of the Orissa Grama Panchayat Act. 1964 held that a person whose name was in the electoral roll of the Assembly Constituency so far it related to the Grama was eligible on that basis to be elected as a member of the Grama Panchayat even though his name dad not find place in the electoral roll of the Grama prepared on the basis of the Assembly Electoral Roll. It is not necessary to repeat the analysis given in that decision. It would be sufficient to say that the Assembly Electoral Roll constitutRs the foundation of the electoral roll prepared for the Grama and if the name deos not find place in the Assembly Electoral Roll ineligibility would accrue even though the name is in the electoral roll of the Grama. On the other hand, if the name finds place in the Assembly Electoral Roll but not in the electoral roil of the Grama the person would be eligible for election as a member of the Grama Panchayat or as a Sarpanch. The preparation of the Electoral Roll of the Grama is ancillary to the Assembly Electoral Roll. Existence of the name in the Assembly Electoral Roll is therefore mandatory.

Section 25 (1) of the Panchayat Act prescribes the disqualification for the membership of the Grama Panchayat. Section 25 (1) (b) lays down that a person shall be disqualified for being elected or nominated as a Sarpanch or any other member of the Grama Panchayat constituted under this Act if he is not on the electoral roll in respect of the Grama or of the ward as the case may be. Ordinarily the name of the candidate ought to find place both in the Assembly electoral roll and the electoral roll of the Grama which is prepared in accordance with the Assembly Electoral Roll. The disqualification under Section 25 (1) (b) would accrue if the name is not in the Assembly Electoral Roll though it exists in the electoral roll of the Grama but not vice versa.'

With the general analysis so far as it relates to a Sarpanch we entirely agree. With reference to a member of the Grama Panchayat the position does not appear to have been correctly stated. As required under S. 9 of the Act the name of the member must appear in the register referred to in that section which is deemed to be electoral roll for the ward. The rules also support that view. Therefore, the sentence occurring in paragraph 7 of Deo's case 'on the other hand if the name finds place in the Assembly Electoral Roll but not in the electoral roll of the Grama the person would be eligible for election as a member of the Grama Panchayat.....' is not a correct statement of the law. While in regard to the Sarpanch the analysis is absolutely correct so far as a member of the Grama Panchayat is concerned his name has also to appear in the electoral roll prepared under Section 9 of the Act and Rule 10 of the Rules. Similarly in regard to the disqualification under Section 25 (1) (b) of the Act the Sarpanch would not entail any disqualification if his name is in the electoral roll referred to in Section 4 (1) of the Act whereas in regard to a member of the Grama Panchayat there would be disqualification even if his name is in the electoral roll of the Assembly Constituency, but is not in the electoral roll of the Grama. Thus the statement indicated in another part of paragraph 7 of Dep's case 'The disqualification under Section 25 (1) (b) would accrue if the name is not in the Assembly Electoral Roll though it exists in the electoral roll of the Grama but not vice versa' has to be read as confined to a Sarpanch only. On the facts in each of the cases the correct conclusion was reached, Except to the extent indicated above in Deo's case the analysis of the statutory provisions was also properly made,

B.K. Ray, J.

11. I agree

Panda, J.

12. I agree.


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