K.S. Sidhu, J.
1.The petitioner, Jagdish, was declared elected as Sarpanch of Village Panchayat Gram Nimodia in the general election held on Dec. 14. 1981. He secured 538 votes against his nearest rival Hari Narain (respondent 1) who polled 531 votes. Other candidates, namely, Kalyan, Nanag, Babulal and Bajrang Lal, polled 15,19,15 and 27 votes respectively. Hari Narain challenged the petitioner's election by presenting a petition to the Munsif (respondent 2). The petitioner who was impleaded as the main respondent in that election petition contested the same. The Munsif framed issues and recorded the evidence of the parties. Two of the issues which were decided in favour of Hari Narain and against the elected candidate (petitioner herein) read as follows:
(1) Whether the voters list of Ward No. 8 of the Gram Panchayat Nimodia rantains a list of 53 voters from serial No. 75 to No. 127, who were residents of two gramdan villages, namely, Dhani Shervan and Dhani Lakhavas, and were as such members of the Gramsabha Dhani Lakhavas, who could not be valid-ly registered as voters for the election of Sarpanch of the Gram Panchayat Nimodia ?
(2) Whether the aforementioned gram-dan villages of Dhani Bhervan and Dhani Lakhavas are included with area of Gram Sabha Dhani Lakhavas, which is an indepedent local body, if so whether the Rajasthan Panchayat Act, 1953 does not extend to that area ?
2. As a result of his findings on these two issues going in favour of Hari Narain, the munsif allowed the election petition, set aside the election of Jadgish as Sarpanch and declared it to be void by reason of the fact that 34 persons, who were members of Gram Sabha Dhani Lakhavas and who could not, in the opinion of the munsif, be validly included in the voters list for election of Sarpanch of Gram Panchayat Nimodia, had voted in the impugned election.
3. Jagdish, the elected Sarpanch, whose election has been set aside by the munsif, has filed this writ petition for reversal of the impugned judgment and order of the munsif,
4. After hearing both sides and perusing the record, I am of opinion that the findings of the election Tribunal (i. e. the munsif) on both the issues mentioned above are erroneous and the errors being apparent on the face of the record, this writ petition must be allowed and consequently the impugned judgment and order of the munsif be set aside.
5. Mr. Luhadia learned counsel for the respondent defended the impugned judgment and order of the munsif on the basis of Rule 78 (d) (iii), Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 (hereinafter called the Rules) which lays down inter alia that the election of any person as Sarpanch of a Panchayat may be called in question on the ground that the result of the election was materially affected 'by the improper reception, refusal or rejection of any vote or the reception, of any vote which was void'. Mr. Luhadia's argument is that since the 34 votes belonging to the gramdan village of Dhani Bhervan and Dhani Lakhavas, became members of the Gram Sabha Dhani Lakhavas, in accordance with the provisions of the Rajasthan Gramdan Act, 1971, they were not eligible to be included in the voters list for election of Sarpanch of Gram Panchayat Nimodia. In other words, the argument is that the voters list of Panchayat Circle Nimodia, as finally published by the Collector under the Rules, which is on the record and which includes the names of 34 voters who could not, according to counsel, be validly included in the list but were so included, is void to the extent of the inclusion of the names of the resi- dents of the gramdan villages of Dhani Bhervan and Dhani Lakhavas as voters of Panchayat Circle Nimodia.
6. Now a reference to Section 10 (1-A) of the Rajasthan Panchayat Act, 1953, would show that every person who is qualified to be registered in the Rajasthan Legislative Assembly electoral roll relatable to the area comprised in the Panchayat Circle or a Ward thereof or whose name is entered in such roll shall be entitled to be registered in the list of voters of such Panchayat Circle or Ward as the case may be. Section 10 (3) further lays down that 'every such person whose name appears for the time being in the list of voters for a ward shall be, unless he is disqualified to do so under any law for the time being in force, be entitled to vote at an election in that ward'.
7. Mr. Luhadia has not been able to show as to how the 34 persons who are residents of the gramdan villages of Dhani Bhervan and Dhani Lakhavas and who are included in the voters list of Panchayat Circle, Nimodia, as finally published under the Rules, were disqualified to vote at the election of the Sarpanch of Gram Panchayat, Nimodia, Mr. Luhadia merely referred to Section 4 of the Rajasthan Gramdan, Act, which lays down that the provisions of the said Act shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force. Now, there is nothing in the provisions of the Rajasthan Gramdan Act which may be construed as being inconsistent with the inclusion of the names of the residents of a gramdan village situate in a particular Panchayat Circle, among he voters of that Panchayat Circle. There is no inherent inconsistency between a resident of a gramdan village, being included as a voter in the list of voters of his Panchayat Circle, if the gramdan village concerned forms part of a ward in that Panchayat Circle. A reference to Section 3, Rajasthan Panchayat Act would show that there is no bar to a gramdan village being included in the area of a Panchayat established under the said Act. In fact, Mr. Luhadia has himself placed on the record a notification, dated, May 1, 1963, issued by the State Government under Section 22 Rajasthan Gramdan Act, 1960, which would indicate that Dhani Lakhavas which is a gramdan village was included in the Panchayat Circle, Nimodia. A perusal of the impugned voters list also shows that both Dhani Lakhavas and Dhani Bhervan which comprise the Gram Sabha Lakhavas, are included in the area of Panchayat Circle, Nimodia Had they not been so included, it would have been so easy for the respondent to prove this fact by placing on the record the requisite notification which must have been issued by the State Government under Section 3, Rajasthan Panchayat Act for establishing the Circle Panchayat, Nimodia. The documents produced on the record would all indicate that these two gramdan villages are included in the group of villages comprising the Panchayat Circle, Nimodia.
8. Mr. Luhadia referred to a notification, dated, May 28, 1976, issued by the State Government under Section 4 of the Rajasthan Panchayat Act determining the number of Panchas for various Pan-chayats including the Panchayat of Nimodia. In column 2 of this notification, which gives the names of villages, the names of Dhani Bhervan and Dhani Lakhavas are not given. Mr. Luhadia tried to press this notification into service in support of his argument that these two Dhanis are not included in the area of Panchayat Circle, Nimodia. I am afraid, I cannot possibly accept this argument. One cannot rule out the possibility that the State Government did not consider it necessary to mention these two Dhanis in the column of villages, for quite often Dhanis are not recognised as distinct revenue estates to be mentioned as separate villages. For ought we know, these two dhanis are included in the revenue estate of Nimodia itself or in any of the other villages mentioned in column 2. In any case, a notification issued under Section 4 of the Rajasthan Panchayat Act is not the relevant notification for showing whether or not a particular village is included in a particular Panchayat. The relevant notification in that behalf is the one which must have been issued under Section 3 of the said Act which has not been placed on the record for reasons best known to the respondent.
9. Last but not the least, the election tribunal would not have set aside the election of the petitioner as Sarpanch if his attention had been drawn to the ruling reported in B. M. Ramaswamy v. B. M. Krishnamurthy, AlR 1963 SC 458. Their Lordships held in the cited case that if the name of a person is included in the voters list, as finally published, under law, he is entitled to vote and his vote cannot be rejected on the ground that it is included therein illegally. This ruling applies to the facts of this case. It was not open to the election tribunal in the instant case to hold that the names of 53 voters who were included in the voters list of Gram Panchayat, Nimodia were liable to be rejected on the ground that they were so included in the voters list illegally. A perusal of Rules 6 to 12-B of the Rules which deal with voters list would show that the Rules, provide a detailed procedure for raising objections to the voters list, hearing of such objections and appeal from the decision of the authority deciding such objections. Rule 12-B lays down that the decision of the appellate authority shall be final which means that it cannot be called in question collaterally in subsequent proceedings before the election tribunal and the like.
10. For all these reasons, this writ petition is allowed and consequently the impugned judgment of the munsif setting aside the election of the petitioner as Sarpanch Gram Panchayat, Nimodia is reversed. The result is that the election of the petitioner as Sarpanch of the Gram Panchayat, Nimodia stays valid and the rule is made absolute accordingly. The parties are left to bear their own costs.