1. The petitioner who had unsuccessfully contested the Panchayat Elections for the office of Sarpanch of Gram Panchayat of Village Gamewala on 22-6-1972, has filed this writ petition under Articles 226 and 227 of the Constitution of India challenging the legality of the entire election proceedings of that date on the ground that some names were added to the electoral rolls at the last moment without there being any provision for the revision, for the purpose of these panchayat elections of the electoral rolls last prepared at the time of the General Elections to the State Legislative Assembly.
2. According to Rule 2(e) of the Gram Panchayat Election Rules, 1960, framed by the Punjab Government in exercise of the powers conferred by Section 101 of the Punjab Gram Panchayat Act 1952, an 'elector' means a person who is entered in the electoral rolls for the State Legislative Assembly, in force for the time being in relation to the Sabha area concerned. It is frankly conceded by the counsel for the respondents that there is nothing in the said Act or in the rules framed thereunder, which may seem to provide for the revision of these electoral rolls or for preparing supplementary lists of persons who may have acquired a right to vote since the electoral rolls were last prepared for the holding of the General Elections. If action for the revision of these electoral rolls is to be taken under the provisions of the Representation of the People Act, 1950, or the rules framed under that Central Act then that action in the matter has to be taken by the officers appointed in that behalf by the Election Commission under Ss. 13-A and 13-B of that Central Act. The revision of the electoral rolls is a process which contemplates that claims of persons who may have acquired the right to vote and objections of persons who contest that the right should be invited and that these claims and objections should be heard by a competent authority before there can be a revision of electoral rolls or preparation of supplementary lists. No such procedure may appear to have been gone into by any authority duly authorised in that behalf. It is also conceded in the returns filed on behalf of the respondents that a supplementary list of voters was published at the last moment about an hour before the polling of votes was due to commence on 22-6-1972. Some of the persons whose names appeared on this list of voters were described to have been minors at the time. The last minute supplementing of the electoral rolls in such a surreptitious manner could lead to a number of abuses. If the names brought on such a list are mainly supporters of one party it could be possible, by this artifice, to tilt the balance in the elections.
3. Shri Kuldip Singh, the learned counsel for the petitioner, relies on the Supreme Court ruling in Chief Commr. Ajmer v. Radhey Shyam Dani, 1957 SCR 68=(AIR 1957 SC 304) in this connection. That was a case relating to Municipal Elections and no proper electoral rolls were found to have been maintained or prepared. Their Lordships of the Supreme Court were pleased to observe as follows:--
'It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral rolls and for the adjudication of claims to be enrolled therein and entertaining objections to such enrollment. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned. It was in our opinion, therefore, necessary for the Chief Commissioner, to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective.
4. Shri Ranbir Singh, the learned counsel for respondent No. 4 who was declared elected to the office of Sarpanch, then argues that a civil writ is not the proper remedy as only an election petition could have been filed under Section 13-B of the Act read with R. 42 of the Punjab Gram Panchayat Rules, 1960. One such election petition was described to have been filed by Ram Singh, the other defeated candidate. The exact grounds on which he has contested the election of respondent No. 4 are not disclosed. Section 13-O of the Punjab Gram Panchayat Act, 1952 which gives the grounds on which an election can possibly be set aside is reproduced below:--
'13-O Grounds for setting aside elections. (1) If the prescribed authority is of the opinion-
(a) that on the date of his election the elected person was not qualified, or was disqualified to be elected under this Act; or
(b) that any corrupt practice has been committed by the elected person or his agent or by any other person with the consent of the elected person or his agent; or
(c) that any, nomination has been improperly rejected; or
(d) that the result of the election in so far as it concerns the elected person, has been materially affected-
(i) by the improper acceptance of any nomination; or
(ii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or
(iii) by any non-compliance with the provisions of this Act or of any rules made under this Act:
the prescribed authority shall set aside the election of the elected person.
(2) When an election has been set aside under sub-section (1), a fresh election shall be held.'
5. None of the grounds enumerated in this section would cover the present case. Sub-clauses (ii) and (iii) of clause (d) of sub-section (1) of this section seem to provide for different situations altogether. The phrase 'the improper reception, refusal or rejection of any vote or the reception of a vote which is void' may seem to contemplate a case where a name had been brought on the electoral rolls and the claim or objection about the identity or competence of the person who comes forward to cast that vote had been wrongly decided to make the reception, refusal or rejection of the vote as improper or wrongful. A case where persons were allowed to participate in the polling when they had no votes at all would not be covered by clause (ii) ibid. The vote which is void implies that a name appears on the rolls but the person concerned was by reason of minority lunacy, criminal conviction, residence outside the sabha area, or any other like reason, ineligible to be an 'elector'. The expression, 'non-compliance with the provisions of the Act or the rules' in clause (iii) ibid would not cover a case where the Presiding Officer has travelled beyond the ambit of the Act or the rules and has improvised for himself any steps or measures for which no provision had been made by the Legislature.
6. The civil writ is accordingly granted with costs. The Panchayat Elections held on 22-6-1972 for the Gram Panchayat of village Gamewala are quashed.
7. Petition allowed.