(1). This is a petitioner under Articles 226 and 227 of the Constitution of India challenging the election of respondent No. 1 is a member of Sabha of that village and petitioner No. 2 is also a member of the Panchayat and Block Samiti Lambi, apart from the being a member of the Sabha of village Kilianwali. IT is alleged in the petition that the electoral roles of the Punjab Legislative Assembly pertaining to the Sabha area of village Kilianwali contained voters Nos. 1232 to 2130, 8343 to 8671 and 10281 to 10291-the total number of votes being 1239 out which 4 were deleted leaving 1235 votes. The filing of the nomination papers was to take place on the 27th December, 1963, and the poll was to be held on 28th December, 1963. It is unnecessary to mention all the allegations which have been made by the petitioners because in my opinion they are hardly worth noticing. The main and substantial allegation which calls for decision is that a supplementary list of 558 or 559 voters was illegally prepared from serial Nos. 10685 to 11243 and it is legality of this roll which has been seriously challenged.
It has been alleged that the names of these voters were entered at more than one place and a list containing such names has been filed vide annexure 'E'. It is apparent form this list that the names of all the persons mentioned therein with few exceptions have been entered at more than one place. The correct number of such person who have been entered twice 56 according to the petitioners counsel and 50 according to the respondents counsel. It has been urged in the petition and before me by the learned counsel for the petitioners and before me by the learned counsel for the petitioners that when the elections was held on the basis of this kind of electoral roll it was wholly invalid.
(2) In spite of an opportunity having been given to the counsel for the respondents to file a more detailed return on the above point all that has been stated now in the return file on 9th December, 1964, is that the electoral rolls on which the impugned election of Panchayat Kilianwali was held were prepared according to the instructions and rules as stated in paragraph 9 of the petition. It has not been denied or stated in detail whether the names together with parentage which appear in Annexure 'E' repent the correct state of affairs or not namely whether the names of the voters mentioned therein have not been entered at more than one place. Records were also sent for and it has not been shown that the names and parentage of the different voters who have been entered at more than one place were of different individuals and had been entered on their separate application made in accordance with the rules. In other word other is hardly any challenge or denial of the allegation of the petitioners that the names of these voters with few exceptions have been entered at more than one place in the supplementary roll.
(3) Now section of Representation of the People Act 1950 which cells with apart from other matter the preparation of electoral roles lays down that no person shall be entitled to be registered in the electoral roll for any constituency more than once. It is therefore obvious that the supplementary roll as prepared in the present case was illegal. the learned counsel for the respondents has not be able to justify the inclusion or registration of the same voters at more hand one places as indeed he could not in view of section 18 but he has contended strenuously firstly that been if elections were held on these rolls there should be no interference by this Court on the writ side inasmuch as an election petition has already been filed by the petitioners which is pending before the prescribed authority in which is pending before the prescribed authority in which identical allegations have been made and secondly even if it established that the rolls were defective the petitioners cannot succeed unless they show that the result of the election was materially affected thereby. My attention has been invited to section 13-O of the Punjab Gram Panchayat (amendment) Act, 1962 which gives the ground for setting aside elections Clause (d) of sub-section (1) of section 13-O of the Acts read as under
'(d) that the result of the election in so far as it concerns the elected person has been materially affected--
* * * * *
(ii) by the improper reception refusal or rejection of any vote which is void.'
The argument raised is that if the same voter has voted twice, it would be improper reception of the vote being contrary to the provisions of section 18 in as much as a voter is entitled to exercise only one vote. It would therefore be in the province of the prescribed authority to decide on the evidence which could be adduced before it whether in fact any such votes were cast. It is found that the same person did not exercise his vote more than once then there would be no grievance. On the other hand, the learned counsel for the petitioners contends that the prescribed authority is totally debarred from going beyond the rolls and looking into the validity of the votes cast by the votes pursuant to the rules. It is said that it is settled law that the roll or the register said that it is settled law that the roll or the register of electors must be treated as final and the finality has been extended even qua the Election Tribunal Reliance has been placed in this connection on my decision in Lekhraj v. Cantonment Board AIR 1958 Punj 356 and other authorities out which S.B. Javaregowda v. Lakkigowda AIR 1958 Mys 73 may be mentioned. In that case it was held--
'The Election Tribunal has no jurisdiction to go behind the electoral roll and decide whether the particular voter has been validly enrolled or not jurisdiction of the Election Tribunal at best extends to the consideration of the validity or otherwise (a) of the acceptance or rejection of the nomination and (b) of the holding of the election. It does not extend to a consideration of the correctness or otherwise of the electoral roll.'
This seems to be with respect the correct view and the learned counsel for the respondents has not been able to point to nay authoritative decision to the contrary in which any such view has been expressed that it would be open to he prescribed authority in the present case to reject as invalid a vote which has been cast more than once by a voter who has been entered in the register at more than one place and who has voted in accordance with the entries in the register.
(4) The learned counsel for the petitioner has drawn my attention to Lajpat Raj v. Khilari Ram, 62 Pun LR 377 which is a Bench Decision in which it was stated that if from the point of view of the real object the scope of the rules the authorities have exercised their power so unreasonably or capriciously while preparing the rules in violation of and not under the rules then the rolls might well be struck down. It however does not mean that every defect or irregularity caused by the negligence or inefficiency or breach of rules by the authorities entrusted with the preparation of rolls must necessarily invalidate them but the Court should in act case examine the nature and extent of the breach the circumstances in which it has been committed and then determine whether the roll in question is so imperfect and improper as to invalidate the election held on its basis. In that case the election was actually set aside on the ground that the roll was not valid having not been prepared in conformity with the Municipal Election Rules 1952.
The decision was commented upon in Full Bench judgment of this Court in Dev Parkas v. Babu Ram 63 Pun L R 485: (AIR 1961 Punj 429(FB)) in which Dulat J., who had agreed with the judgment in the previous case while delivering the judgment of the Full Bench observed that an election is in its nature an expensive and time-consuming process and if it is to be disturbed after the whole process has been gone through there must be shown to have substances of the election and not merely technical breach of a rule. Everybody agrees that if the very foundation of the election namely the electoral roll is illegal no election on its basis can proceed or be allowed to stand but that does not mean that any kind of defect in the roll however technical in its nature will suffice to reach such a conclusion. With regard to the decision in 62 Pun LR 377 distinction was drawn and certain observations were made which according to the learned counsel for the respondents have the effect of overruling the Bench decision. It is not possible to say that the Bench view was overruled but what was said was that.
'the present case does not resemble that case, and the whole controversy in the present case is whether the electoral roll, can be called illegal because the preliminary roll to which objections were invited was partly prepared before the directions of the State Government for such preparation was received or because the existing Assembly roll was adopted as its basis.'
It does not follow, therefore, that the previous decision was overruled. On the other hand, it is obvious from the observations, to which reference had already been made, that if the electoral roll is illegal no election on its basis can proceed or be allowed to stand. It will necessarily depend on the facts of each case whether the roll is illegal. It is clear that the supplementary roll in the present case was prepared in a wholly illegal manner inasmuch as the names of a larger number of voters were entered at more than one place which constitutes a clear violation and contravention of section 18 of the Representation of the People Act, 1950. I am therefore satisfied that the election held on the basis of such roll were altogether invalid and the mere fact that the election petitioners in pending will not constitute a bar to the grant of appropriate relief in the present writ petitioner. As it has been held by me that the Tribunal is not entitled or empowered to go into the question of illegality or illegal preparation of the rolls it is open to this Court to interfere in exercise of the powers conferred by Article 226. In the result this petition is allowed and the election of respondent No. 3 as sarpanch is hereby quashed.
(5) In the circumstances of the case I make no order as to costs.
G. I./V. R. B/D. V. C.
(6) Petition allowed.