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Kantilal Mathurdas Parikh and ors. Vs. the Village Panchayat of Shivrajpur and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR929
AppellantKantilal Mathurdas Parikh and ors.
RespondentThe Village Panchayat of Shivrajpur and ors.
Cases ReferredThe Chief Commissioner of Ajmer and Anr. v. Radhey Shyam Dani
Excerpt:
.....distinct from the aforesaid notification though provided for by clause (2) of rule 7 of the bombay village panchayats election rules 1959 (b) that assuming that the issuing and publication of the aforesaid notification were to be treated as issuing and publication of the notice even then the notice was bad as it was not published one month prior to the last date of filing nominations which as aforesaid was june 2 1962 2 that in the fourth ward of the first respondent panchayat 125 persons who were the residents not of the village in question but the shivrajpur mines panchayat were wrongly included in the list of voters of the fourth ward and these 125 voters having participated and voted in the election in the fourth ward the election was bad. 8. these being the only contentions raised..........29th of june 1962 respectively. the area of the first respondent panchayat was divided into four wards. wards 1 2 and 3 each was allotted three seats while two seats were allotted to ward no. 4. two seats in the first ward were reserved for women. one seat each was reserved in the second and the third wards for scheduled tribes. one seat was reserved for scheduled castes in ward no. 4. thus in all 5 seats were reserved for women and scheduled tribes and scheduled castes out of the 11 seats allocated to the first respondent panchayat. in the first ward respondents 4 5 15 16 and two others filed their nominations for the reserved seats for women and respondents 6 17 and three others filed their nominations for the general seats in that ward. respondents 7 8 18 19 and three others filed.....
Judgment:

J.M. Shelat, C.J.

1. This is a petition for a writ of quo warranto or any other appropriate writ for setting aside and quashing the election held in June 1962 of the first respondent Panchayat and also for setting aside the election to the posts of the Sarpanch and Upa-Sarpanch of the first respondent Panchayat.

Prior to January 3 1946 the entire village of Shivrajpur including what is known as Shivrajpur mines area was notified as one village within the meaning of the Bombay Village Panchayat Act IV of 1933 by a notification dated December 28 1945 and published in the Bombay Government Gazette issued on January 3 1946 The two areas were separated and declared as two distinct villages with separate Panchayats. we are concerned in this petition with the village called Shivrajpur Village Site as distinct from the village called Shivrajpur Mines Village. The term of the first respondent Panchayat expired on June 30 1962 and therefore arrangement for a fresh election had to be made. Consequently on May 2 1962 the Mamlatdar issued a notification fixing the programme of the various stages of the election. Under that notification the date of filing nominations of candidates was June 2 1962 the date for the scrutiny of the nominations was June 3; the final date of withdrawal of nominations was June 9; the date for the preparation of the list of accepted nominations was June 11 and the announcement of the election by beat of drums was fixed on June 22. The notification fixed the date of voting and the counting of the votes and the declaration of the result on the 28th and the 29th of June 1962 respectively. The area of the first respondent Panchayat was divided into four wards. Wards 1 2 and 3 each was allotted three seats while two seats were allotted to ward No. 4. Two seats in the first ward were reserved for women. One seat each was reserved in the second and the third wards for scheduled tribes. One seat was reserved for scheduled castes in ward No. 4. Thus in all 5 seats were reserved for women and scheduled tribes and scheduled castes out of the 11 seats allocated to the first respondent Panchayat. In the first ward respondents 4 5 15 16 and two others filed their nominations for the reserved seats for women and respondents 6 17 and three others filed their nominations for the general seats in that ward. Respondents 7 8 18 19 and three others filed their nominations for the general seat in the second ward and respondent 9 and one another filed their nominations for the reserved seat in that ward. Respondents 10 11 20 21 and four others filed their nominations for the general seat in the third ward and respondent 12 and three others filed their nominations for the reserved seat in that ward. Respondents 13 22 and two others filed their nominations for the general seat in the fourth ward and respondent 14 and one another filed their nominations for the reserved seat in that ward. Respondents 9 12 and 13 were thereafter declared elected without contest in the reserved seats in ward Nos. 2 3 and 4. Respondents 4 to 8 10 11 12 and 13 were declared elected as a result of the election. Respondents 4 to 14 were thus declared elected as members of the first respondent Panchayat. It is this election which has been challenged by the petitioners in this application.

The petitioner raised a number of contentions in their petition but when the hearing started their learned advocate Mr. B.R. Shah chose to raise only four contentions. These four contentions were:

1(a) that the election was bad as the Mamlatdar did not issue or publish a notice as distinct from the aforesaid notification though provided for by Clause (2) of Rule 7 of the Bombay Village Panchayats Election Rules 1959

(b) that assuming that the issuing and publication of the aforesaid notification were to be treated as issuing and publication of the notice even then the notice was bad as it was not published one month prior to the last date of filing nominations which as aforesaid was June 2 1962

2 That in the fourth ward of the first respondent Panchayat 125 persons who were the residents not of the village in question but the Shivrajpur Mines Panchayat were wrongly included in the list of voters of the fourth ward and these 125 voters having participated and voted in the election in the fourth ward the election was bad.

3 That certain houses were included wrongly in the third ward by a notification of the Collector dated April 27 1962 thereby reconstituting that ward; that the aforesaid act of the Collector was without jurisdiction. And

4 that the election was wrongly held under the Bombay Village Panchayats Act III of 1959 though certain parts of the Gujarat Village Panchayats Act VI of the 1962 were already brought in force by a notification of the State Government dated June 15 1962 published in the Government Gazette on July 25 1962

Mr. Shah however did not press contentions 3 and 4 and conceded that the election was rightly held under Act 111 of 1959. We have therefore to consider only the remaining two contentions raised by Mr. Shah on behalf of the petitioners.

2. The first contention of Mr. Shah was that Rule 7 of the Election Rules contemplates two separate acts on the part of the Mamlatdar namely the issuing of the notification in the village concerned appointing the dates the hours and the places for the various stages of the election and giving a public written notice of the intended election inviting nominations and specifying therein the names and official designations of persons appointed under Rule 6 as returning officers and the publication of this notice by affixing it at the village Chavdi and at the village panchayat office and at any other place if any in the village appointed by the Mamlatdar in that behalf. The public notice referred to in Clause (2) of Rule 7 thus requires-(1) invitation for nominations (2) specifying the place where these nominations are to be delivered and (3) the names and official designations of returning officers. The subrule requires that it should be published by affixing it at the chavdi and the panchayat office and it has to be issued by the Mamlatdar one month before the last date for filing nominations. Mr. Shah submitted that the language of Rule 7 makes it clear that these are two distinct and independent acts to be done by the Mamlatdar and that the public notice under Sub-rule (2) has to be issued and published as required therein after the notification is issued by him. We have no doubt on reading Rule 7 that Sub-rule (1) of Rule 7 contemplates the issue of the notification which must contain all requisite dates of all the stages of the election and Sub-rule (2) contemplates the issue and the publication of a written notice. There is however nothing in Rule 7 to show that the Mamlatdar cannot do both the acts simultaneously. The rule does not provide for any interval between the two acts of the Mamlatdar as suggested by Mr. Shah. The words by notification in the village or villages concerned occurring in sub-rule(1) of Rule 7 indicate that the Mamlatdar has not only to issue the notification fixing the various dates but has also to notify it in the village concerned which would presumably mean notifying it at some public place namely the chavdi of the village The notice under Sub-rule (2) of Rule 7 on the other hand requires to be published as aforesaid at the chavdi at the panchayat office of the village concerned and at any other place appointed by the Mamlatdar in that behalf. It is common ground that no other place except the chavdi and the panchayat office was appointed by the Mamlatdar and therefore the notice would have to be published by affixing it at the chavdi and the panchayat office of the village. Though the two acts of the Mamlatdar namely the issuing of the notification and the publication of the notice would seem under this rule to be different acts both the notification and the notice would contain identical information. As we have said under Sub-rule (2) the notice has to invite nominations of candidates and specify the names or official designations of persons appointed as returning officers. The copy of the notification annexed as Ex. A to the petition in this case does in fact contain both namely it invites nominations and specifies the place where they are to be delivered and also sets out the designation of the returning officer. There is no dispute that the notification was issued and published by having it affixed both at the village chavdi and the panchayat office. Since the notification contained all the information required to be in the notice under Clause (2) of Section 7 and was published as aforesaid its issue and publication were sufficient to satisfy the requirements of Rule 7. Since the entire notification was published in accordance with the provisions of Sub-rule (2) of Rule 7 there was no necessity of there being two different documents and the publication of the notification in accordance with the provisions of the rule was tantamount to the publication of the notice as it contained all that would be required in the notice. We therefore do not see any substance in this part of the contention.

3. The second part of the contention was that even if the issue and publication constituted the issue and publication of the notice the publication of the notice was not one month prior to the date of the filing of the nominations inasmuch as the date of the publication of the notification was May 3 1962 while the date for the filing of the nominations was June 2, 1962 that is to say the intervening period was one day short of the period of one month required under Rule 7. In his affidavit in reply respondent No. 1 denied that the intervening period that is to say the period between the date of the publication of the notification and the date of filing of the nominations was not one month. But that denial cannot be accepted as correct for in the earlier part of the affidavit the first respondent has categorically admitted the statements made in para 3 of the petition thereby admitting that the date of the publication of the notification was May 3, 1962. That being so obviously the intervening period was not one full month but was in fact one day short. Mr. Shah was right in his submission that Sub-rule (2) of Rule 7 is mandatory in character and therefore the Mamlatdar was bound to follow the provisions of the sub-rule. But there is no clear and specific plea taken in the petition as to the non-compliance of the provisions of Sub-rule (2) of Rule 7 nor is a plea taken that the breach of the provisions of Sub-rule (2) rendered the election void. The real stress in paragraph 8 of the petition where the contention as to Rule 7 has been taken is upon the fact that no separate notice as contemplated by Sub-rule (2) of Rule 7 was issued or published by the Mamlatdar. In para 8 of the petition the petitioners in fact have averred that between the publication of the notification and the date fixed for filing nominations there was hardly one months time. That certainly is not a plea that a full month had not elapsed between the date of the publication of the notification and the final date for filing nominations. The expression hardly means according to its dictionary meaning with difficulty harshly only just or scarcely It is thus obvious that paragraph 8 of the petition does not contain any express plea of non-compliance of Sub-rule (2) of Rule 7 namely that a full month did not intervene between the two dates as prescribed by that sub-rule. Even if we were to construe the averments made in paragraph 8 of the petition liberally and were to proceed on the assumption that there was non-compliance of Sub-rule (2) of Rule 7 the non-compliance would at most amount to an irregularity and would not in our view amount to such a substantial infirmity which would justify the setting aside on that ground alone of the election. A writ of quo-warranto is not issued as a matter of course. The Court would refuse to disturb the peace and quiet of a corporation by granting leave to bile an information where to do so would be merely vexatious as where there has been an irregularity in the election to the office which is without any material result or which cannot be shown to have been productive of harm. (Cf. Halsburys Laws of England Vol. 11 Third Edition page 149). In Rex v. Ward (1873) L.R. 8 Q.B. 210 there was an application in respect of the office of a member of a local board of health. The objection was that the defendant was the chairman and therefore the returning officer and accordingly ineligible a a candidate. The Court found teat the mistake had produced no material result inasmuch as the same person would have been chosen if the election had been conducted on strictly regular lines and therefore refused to disturb the peace of the district by filing an information. Similarly in Rex v. Cousins (1873) L.R. 8 Q.B. 216 it was held that the Court would refuse to interfere where it was not shown that any person was kept out of the election or that the result of the election was in any way affected as a result of the irregularity. This Court declared this very principle in Parikh Kalabhai Bodabhai and Ors. v. The Village Panchayat of Patdi and Ors. (1962) III G.L.R. 897 and observed that a writ of quo-warranto is not issued as a matter of right. It is a discretionary relief and the Court has to ask itself whether under the circumstances of each case the petitioner should be given the relief in the nature of quo Warranto. The Courts should always be reluctant to interfere with elections except on the clearest and the strongest of grounds. They would be loath to interfere with elections merely because some technicality has not been observed or some irregularity has been committed. But it would be quite a different matter if the irregularity has resulted in the people not being able to express their views properly or if there was any corrupt practice which has materially affected the result of the election or where an election has been held without any authority of law. There is no plea in the petition that on the assumption that there was any irregularity or breach of the rule the irregularity or the breach of the rule affected either the elections or adversely touched upon the rights of the electors or some of them in the village in question. That being the position it is not possible for us to accept this part of the contention of Mr. Shah.

4. The real and substantial question raised by Mr. Shah was his second contention namely 125 persons who at the relevant time were the residents of Shivrajpur Mines Panchayat were wrongly included in the list of voters for the fourth ward of the first respondent Panchayat and that by reason of these 125 persons having participated in the election in the fourth ward the election must be held to have been necessarily affected by such illegal participation. There is no denial in the affidavits either of the first respondent or the third respondent that the 125 persons were residing at the material time in Shivrajpur Mines Panchayat and therefore were not the residents of the first respondent Panchayat. The petitioners have also produced certificates annexed as Ex. E to the petition which show that these 125 persons were living at the relevant time in the Mines village and Pot in the village with which we are concerned and though the respondents have denied that they were not rightful voters it is obvious that inclusion of the names of these 125 voters occurred because the names of these persons were through mistake or inadvertence included in the list of voters for Shivrajpur village instead of for Shivrajpur Mines village prepared for the Assembly election under the Representation of the People Act 1950 The list was prepared in 1960 but until the filing of this petition no objection was ever taken by anyone not even by the other Panchayat with regard to the inclusion of these names. The learned Assistant Government Pleader has produced before us the list of voters for the constituency of Halol for the purposes of the election of the members of the State Assembly which we find includes amongst other areas these two villages. That list is village-wise and the names of voters there are under separate headings or parts one for Shivrajpur village site and the other for Shivrajpur Mines area. It is not in dispute that in that list of voters these 125 persons find their place amongst the voters of Shivrajpur village site though they were the residents of Shivraipur Mines village Mr. Shahs contention was that these 125 persons though their names may have been included as voters in Shivrajpur village site in the list of voters for the Assembly election could not be included as voters for the purposes of the election of the Panchayat as they were not the residents of the first respondent Panchayat but were the residents of the other Panchayat and therefore had no right to vote or participate in the election. He therefore submitted that their participation in the election by voting at the election in the fourth ward was illegal and rendered the entire election void.

This contention raises the question as to the proper interpretation of Sections 12 and 13 of the Act Sub-section (1) of Section 13 provides:

Every person whose name is in the list of voters shall unless disqualified under this Act or any other law for the time being in force be qualified to vote at the election of a member for the ward to which such list pertains.

5. Leaving aside the provision as to the disqualification of a voter this sub-section must mean that a person whose name appears in the list of voters would be qualified to vote at the election of a member of the ward to which such list pertains. Under Sub-section (2) such a person can stand as a candidate for election in any of the wards of the village. Sub-section (3) makes the list of voters conclusive evidence subject of course to any disqualification incurred by such person for the purpose of determining under this section whether any person is qualified or is not qualified to vote or as the case may be is qualified or is not qualified to be elected at any election. Now the expression list of voters in Section 13 must mean the list of voters as defined by Section 3(11) of the Act which defines the list of voters as a list of voters provided for and maintained under Section 12. Section 12(1) as amended by the Gujarat (Adaptation of Laws) Order 1960 provides that the electoral roll of the Gujarat Legislative Assembly prepared under the provisions of the Representation of the People Act 1950 and in force on such day as the State Government may by general or special order notify in this behalf for such part of the constituency of the Assembly as is included in a ward or a village shall be the list of voters for such ward or village. It is clear from the provisions of this Sub-section (1) that a separate list of voters for the Panchayat election is not intended to be prepared (2) that the list of voters prepared for the Assembly election would be the list of voters for the Panchayat election and (3) that the list of voters prepared for the constituency for the purposes of the Assembly election would be the list of voters for such part of the constituency of the Assembly as is included in a ward or a village. In other words the list of voters for Assembly election of a constituency in this case the constituency of Halol would be the list of voters for that part of the constituency for the Assembly election in which the village Shivrajpur is included and it is that list which is made conclusive under Sub-section (3) of Section 13 of the Act. Under sub-sec(2) of Section 12 an officer designated by the Collector is directed to maintain a list of voters for each such ward or village. It will be noticed that Sub-section (2) of Section 12 does not direct such an officer to prepare a list of voters. The directing therein contained so far as he is concerned is to maintain a list of voters for each such ward or village This must mean that the officer designated by the Collector has to maintain a list of visitors of such village from the list of voters for such part of the constituency of the Assembly as is included in the ward or the village. It would thus seem that as such list of voters is made conclusive under Section 13(3) no objection to an inclusion of a wrong person or persons in the list of voters can be taken under this Act and no Court can take cognizance of such a complaint. It would also appear that if a wrong person is included in such a list the objector has to have his name removed from the list of voters for the Assembly election and he would have to have resort to the provisions of the Representation of the People Act 1950 or the rules made thereunder. We are fortified in this construction of these two sections by two facts(1) that the list of voters for the Panchayat election is the same as that for the Assembly election so far as that part of the constituency in which the village concerned is included and (2) neither the Act nor the rules made thereunder make any provision for the alteration revision or amendment of the list of voters prepared by the officer designated by the Collector under Sub-section (2) of Section 12 and the list so prepared under Section 12(2) is made conclusive under Section 13(3). This conclusion is also fortified by the language used in Rule 3 of the Election Rules 1959 which provides that the officer designated by the Collector under Section 12(2) of the Act shall maintain a list of voters of each ward of the village which shall contain the names of all persons who are enrolled as voters in the electoral roll of the Bombay Legislative Assembly from that part of the constituency of the Assembly as is included in each such ward. It would seem from the language used in this rule that while making the list under Section 12(2) of the Act the officer concerned would have no power to subtract or add to the names of persons who are enrolled as voters in the list of voters for the Legislative Assembly from that part of the constituency of the Assembly as is included in each such ward or village.

6. But Mr. Shah submitted that the word village as used in Section 12 must mean a village as notified under Section 4 of the Act and therefore if a portion of any village or the residents of such portion are wrongly included in another village notified under Section 4 of the Act that portion not being part of the latter village as declared under Section 4 the list of voters of that latter village prepared under Section 12(2) would not be the lawful list of voters for that village. We are in agreement with Mr. Shah that the word village used in Section 12 must mean a village notified under Section 4 of the Act but for the rest of his contention we find there is a dear fallacy. The key words in Section 12(1) are the words as is included in a ward or a village. This expression means and must mean that the list of voters for an Assembly election for such part of the constituency in which the village is included would be the list of voters for the purposes of a Panchayat election of the village which is notified as such under Section 4 of the Act. In this case therefore the list of voters for that part of Halol constituency in which the two villages namely Shivrajpur village site and mines area are included would be the list of voters for the respective Panchayat elections of the two villages. In that view the list of voters having been made conclusive by Sub-section (3) of Section 13 the petitioners would not be entitled to challenge that list of voters and the names of these 125 persons being in that list it cannot be disputed that they were entitled to vote by virtue of Sub-section (1) of Section 13 until their names were removed by a suitable proceeding from the list of voters for the Assembly election for Halol constituency. We may in this connection usefully cite the decision in B.M. Ramaswamy v. B.M. Krishnamurthy and Ors. : [1963]3SCR479 where the Supreme Court interpreted Sections 9 and 10 of the Mysore Village Panchayats and Local Boards Act 10 of 1959. Section 9 of that Act provided as Section 12 of the Act under consideration does that:

The electoral roll of the Mysore Legislative Assembly for the time being in force for such part of the constituency of the Assembly as is included on any Panchayat constituency shall for the purpose of this Act be deemed to be the list of voters for such Panchayat constituency. The Secretary of the Panchayat shall maintain in the prescribed manner a list of voters for each Panchayat constituency.

The Explanation to that section provides that for the purpose of that section electoral roll shall mean an electoral roll prepared under the provisions of the Representation of the People Act 1950 for the time being in force. Section 10 of that Act is also couched in a language similar to the language used in Section 13 of the Act under consideration and that section provides that:

Every person whose name is in the list of voters of any Panchayat constituency shall unless disqualified under this Act or under any other law for the time being in force be qualified to be elected as a member of the Panchayat.

7. An election held under the Act having been challenged the Supreme Court held while dealing with these two sections that the relevant part of the electoral roll of the Mysore Legislative Assembly was deemed to be the list of voters for the Panchayat constituency and the Secretary of the Panchayat had to maintain a duly authenticated separate list of voters of the said constituency. The Supreme Court also held that the Mysore Act proceeded upon the basis that the voters list was final for the purpose of the election. It also held that there was no provision in the Act which enabled the High Court to set aside the election on the ground that though the name of a candidate was in the list it had been included therein illegally. In our view the interpretation put by the Supreme Court on Sections 9 and 10 of the Mysore Act the language used therein being almost similar to the language used in Sections 12 and 13 of the Act under consideration fortifies considerably the conclusion which we have arrived at upon the construction of the two sections. Mr. Shah however relied upon the decision in The Chief Commissioner of Ajmer and Anr. v. Radhey Shyam Dani : [1957]1SCR68 where there are observations to the effect that it is of the essence of the elections that proper electoral roll should be maintained and in order that 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 scrutinise whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrollment. Relying upon these observations Mr. Shah pleaded that though there was no provision for the alteration or amendment of the list of voters in the Bombay Village Panchayats Act 1959 it still was the duty of the Mamlatdar to subtract the names of these 125 persons from the list of voters upon the footing that they were not the residents of Shivrajpur village site as notified under Section 4 of the Act. The facts of the case and the provisions of the Ajmer Merwara Municipalities Regulation 1925 and the Ajmer State Municipalities election Rules 1955 were totally different from the facts and the provisions of the statute under our consideration. It is clear from the decision that these observations were made by the Supreme Court in the light of the provisions of Sections 30 and 43 of the aforesaid Regulation and would not therefore be applicable to the present case. In the view that we take of Sections 12 and 13 of the Act the second contention raised by Mr. Shah also cannot be accepted.

8. These being the only contentions raised before us on behalf of the petitioners and they being not acceptable the petition must fail. Accordingly the rule is discharged with costs. The petitioners will pay one set of costs to respondent No. 1 and respondents 4 6 10 11 13 14 4 6 10 11 13 14 and respondents Nos. 7 to 9 12 15 16 17 21 and 22 and another set of costs to respondents 2 3 and 3-A.


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