Leila Seth, J.
(1) The petitioners, fourteen in number, are residents of village Ali and are members of the Gaon Sabha of Ali. They are registered as voters in the Outer Delhi Parliamentary constituency relating to Village Ali. The Gaon Sabha of Ali consists of the villages of Ali, Kotia Mohigram and Said Abad.
(2) They seek to challenge by a petition under Article 226 of the Constitution of India the election of the Pradhan and the Members of the Gaon Panchayat of Ali, held on 29th December, 1977.
(3) The main grounds on which the election is being challenged are :
(1)Failure to prepare and maintain a register of the members of the Gaon Sabha as required under rule 4 of the Delhi Panchayat Raj Rules, 1959 (to be referred to briefly as 'the Rules').
(2)The invalidity of the notification dated 21st November, 1977, to hold the election of the Pradhan and Members of the Gaon Sabha as it was issued by the Development Commissioner. The Deputy Commissioner being the empowered authority, under Rule 8 of the Rules, the Development Commissioner had no power, authority or jurisdiction to do so.
(3)Voters relating to revenue village Said Abad from Seriall No. 987 to 1142 of the electoral rolls as contained in part 349 of the Outer Delhi Parliamentary Constituency have been erroneously allowed to participate in the election. These voters were settled on land belonging to the Central Government and thus should not have been premitted to vote in a Gaon Sabha Panchayat election which is in respect of rural areas.
(4)Persons residing in Ghosi Colony were registered from Seriall No. 817 to 848 of the electoral rolls as contained in part 359 of the Outer Delhi Parliamentary Constituency and were erroneously allowed to vote. Since, they resided on land that was marked for a dairy and belonged to the Central Government, they should not have been premitted to vote in the Panchayat election.
(4) The Lieutenant Governor, Delhi and the Development Commissioner, Delhi and respondents 1 and 2 respectively. Respondents 3 to 13 are residents of village Ali. Respondent No. 3 is the elected Pradhan and respondents 4 to 13 are the. elected Members of the Gaon Panchayat Ali.
(5) Two main preliminary objections have been raised by the respondents.
(6) The first relates to the maintainability of the writ petition. The submission is that the matter cannot be put in issue except by way of an election petition. Rule 57 of the Rules as amended is a complete bar.
(7) The second is that the petitioners have no locus standi to file the present writ petition; further so, as the defeated candidate with regard to the election of the Pradhan has filed an election petition which is pending. This fact was stated at the bar and not denied.
(8) In order to appreciate the preliminary objections, which are interlinked, it is necessary to examine certain provisions. The relevant portion of Rules 57 of the Rules is :
'57(1).Subject to the provision of Sections 44(6) of the Act, the election of a person as Pradhan of a Gaon Sabha or as Member of Gaon Panchayat or as Panch or a Circle Panchayat shall not be called in question except by an election petition, presented in accordance with these rules, and on any of the following grounds:- (a) That the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or (b) that the result of the election has been materially affected:- (i) by the improper acceptance or rejection of any nomination, or (ii) by gross failure to comply with the provisions of the Act or the Rules framed there under.
(9) Rule 58 provides for the form and presentation of an election petition. Rule 58(2) stipulates that the election petition may be presented by a person who was a candidate at the election. The Explanationn thereto indicates, that a person who filed a nomination paper at the election, irrespective of whether it was accepted or rejected, would be deemed to be a candidate at the election. Rule 59 provides for the appointment of an officer to dispose of the election petitions except where the election petition relates to Sections 44 (3) or (5) of the Act. The Officer so appointed under Rule 59 is to hear the petition as early as possible in accordance with the Code of Civil Procedure and the provisions of Rule 60. Rule 61 provides, inter alia, that an election petition shall not be withdrawn without leave of the Officer so appointed. Under rule 62, if the election of a person is declared invalid, then a new election will be held. Rule 65 is, 'Subject to the provisions of Sub-section (6) of Section 44 of the Act, the orders passed by the officer appointed on an election petition shall be final and conclusive, and shall not be questioned in a court of law'.
(10) Section 44 of the Delhi Panchayat Raj Act, 1954 (to be referred to briefly as 'the Act') deals with the election of Panchas, Naib Sarpanch and Sarpanch of the Circle Panchayat. Section 44(6) reads :
'(6)Any dispute arising out of election under Sub-section (3) or (5) shall be referred to the prescribed authority, whose decision shall, subject to revision by the Chief Commissioner, be final and shall not be questioned in a court of law.'
(11) Section 44(3) of the Act provides that where the population of the Gaon Sabha is 1000 or less, then two persons are to be elected to act as Ranches of the Circle Panchayat; whereas if the population is more than 1000, then three. Sub-section (5) of Section 44 postulates that the Ranches will elect a person to act as a Sarpanch and a Naib Sarpanch of the Circle Panchayat, from amongst themselves.
(12) From the grounds of challenge set out above, it is clear that the election is not being challenged, on the ground of corrupt practice or undue influence but on the basis of the result of the election having been materially affected by gross failure to comply with the provisions of the Act or the Rules framed there under.
(13) These grounds would have been available before the election authority under Rule 5 7(1) (b) (ii) of the Rules. The election authority, as is clear from Rule 57, has to examine not only whether there has been a gross- failure to comply with the provisions of the Act or the rules but also whether the result of the election has been materially affected. The language used in rule 57 is mandatory and clear. It states, inter alia, that the election of a person as Member of Gaon Panchayat or Pradhan of a Gaon Sabha shall not be called in question except by an election petition. The election petition is to be in accordance with the rule and on the grounds specified. Rule 58(2) makes it clear that the election petition may be presented by a person who was a candidate at the election. It permits a defeated candidate or one whose nomination papers have been rejected to file an election petition, but does not give this permission to others i.e. to an elector.
(14) O.P. Tyagi, learned counsel for the petitioners submits that since an elector has not been given the right to present an election petition, he has a right to do so under Article 226 of the Constitution of India. He further contends that as. both the defeated candidate and the clector can present an election petition under the Representation of Peoples Act, 1951 , total embargo therein to proceed in any other manner except by way of an election petition, is understandable. But since there is no provision in the Delhi Panchayat Raj Act and Rules, with respect to an elector, there can be no total embargo. The elector being inherently interested in the result as a member of the constituency.
(15) The argument of Tyagi is based on the fact that no remedy under the Act has been provided to an elector and as such he is- permitted to file writ petition. The fallacy in the argument is that the petitioners must first establish a right before the question of remedy arises.
(16) The right to vote is a creature of statute and so too miist be the right to challenge an election. An election contest is a statutory proceeding unknown to common law. Not being a common law right, the rights that are available to petitioners are those which are provided in the statute and/or rules. As has been so pithily stated by Bhagwati, J. in K. Kamaraja Nadar v. Kunju Thevar and others, : 1SCR583 , 'an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power'.
(17) It is, thereforee, clear, that since no right has been provided by the statute to the elector to challenge the Gaon Panchayat election, the question of providing a remedy to invoke that right does not arise.
(18) It is true that the election is an essential part of the democratic process, as stated by the Supreme Court in Inamati Mallappa Basappa v. Desai Basavaraj Ayyappa and others, : 1SCR611 , and the public are substantially interested. But the right to challenge an election is a statutory right and unless provided by the statute cannot arise at common law.
(19) The Delhi Panchayat Raj Act, 1954 is Act No. 3 of 1955. It came into existence much after the Representation of Peoples Act, 1951. Under Section 81 of the Representation of Peoples Act, 1951, both a candidate and an elector can present an election petition. The Panchayat Raj Act, 1954 and the Rules framed there under though being later in point of time, give this right only to a candidate. The right to challenge an election of a Gaon Panchayat was not given to an elector. The purpose of the Act is to establish and develop local self Government in the rural areas of Delhi State and to make better provision for village administration and development. It is possible, that it was felt that a right to challenge a Gaon Panchayat election should not be given to an elector as it may result in constant turmoil in the village. Whatever the reasons, the right has not been given to an elector but expressly given to a candidate, though it is available to both in the Representation of Peoples Act, 1951. It appears to be a conscious omission. Anelection contest, not being an action in law or equity, there can be no implied right in the elector to challenge the election.
(20) It was next urged by Mr. O.P. Tyagi that the notification dated 29th November, 1977 purports to include an area to which the provisions of the Act do not apply, as such the exercise of power being without jurisdiction. Rules 57 and 58 are not attracted. He contends that the provisions contained in Section 150 of the Delhi Land Reforms Act, 1954 have been violated and thereforee, a writ petition is maintainable. Further, the Members of the Gaon Sabha being beneficiaries of the common property of the village, have an interest which is infringed if persons not entitled to the common property are permitted to vote.
(21) The notification dated 29th November, 1977 issued by the Lieutenant Governor of Delhi provides for the reservation of seats for Scheduled Castes and women in respect of each Gaon Panchayat. Seriall 202 is the Gaon Sabha of Ali which consists of the villages of (i) Ali, (ii) Kotia Mahigram and (iii) Said Abad. Assuming that some persons of Said Abad revenue village, Seriall No. 987 to 1142, Part 349 of the Outer Delhi Parliamentary Constituency, have erroneously been given an opportunity to participate in the elections, there are no specific pleadings with regard to injury or that the result of the election has been materially affected or that these persons participated and voted. The position is similar with regard to persons of Ghosi Colony, registered at Seriall No. 817 to 848 of Part 359 of the Outer Delhi Parliamentary Constituency.
(22) It is clear that the erroneous addition of a voter is not by itself sufficient to vitiate an election unless it materially affects the result of the election. There is neither pleading nor proof that the result was so affected. Further breach of the provisions of the Act and Rules which in turn attracts the provisions of the Delhi Land Reforms Act would make Rule 57 of the Act applicable.
(23) I, thereforee, hold that the preliminary objections are sustainable and in the facts and circumstances of the present case the petitioners have no locus standi to file the writ petition nor is it maintainable.
(24) It is, however, pertinent to note that some of the points raised in this petition have been dealt with in Shiv Charan v. Dsvelopment Commissioner, Delhi Administration, Delhi and others, Civil writ petition No. 1316 of 1969 disposed of on 24th March, 1970. Rangarajan,J., in a long and erudite judgment while dealing with the question whether a writ petition was maintainable when an alternative remedy was available, held that there was no constitutional bar of Article 359 in the case of Gaon Panchayat elections. But, if in substance what was being complained of was an infraction of the Act and Rules then the statutory requirement to file an election petition could not be avoided by the merely working the prayer in general terms. Further the absence of a register and/or up to date register, as required under Rule 4 does not by itself, invalidate the election; because the primary qualification for becoming a member of the Gaon Sabha is the inclusion of the name in the electoral roll of the Parliamentary constituency, and not in the register.
(25) The learned Judge also held that, 'Development Commissioner' had been substituted in place of 'Deputy Commissioner' as a result of all amendment of Rule 7 and the Development Commissioner was authorised to issue notifications under the Act.
(26) For the reasons outlined above, I discharge the rule, but make no order as to costs.