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Sultan Khan Vs. Sailesh Chandra Nundy - Court Judgment

LegalCrystal Citation
SubjectConstitution;Election
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1025 of 1961
Judge
Reported inAIR1963Cal527
ActsCitizenship Act, 1955 - Section 9(2); ;West Bengal Panchayat Act, 1956; ;West Bengal Panchayat Act, 1957 - Sections 7, 11, 15, 26 and 117; ;Representation of the People Act, 1950 - Section 16, 16(1) and 16(2)
AppellantSultan Khan
RespondentSailesh Chandra Nundy
Appellant AdvocateP.B. Burman, ;Ranjit Kumar Ghose and ;Manan Kumar Ghose, Advs.
Respondent AdvocateMrinal Kanti Ghose Chowdhury, Adv.
Cases ReferredAtaur Rahaman Sardar v. Deputy Secretary
Excerpt:
- .....within its competence to decide that the petitioner's name was not rightly included in the electoral rolland to set aside his election as a member of the grampanchayat and anchal panchayat.
Judgment:

Bachawat, J.

1. This revision case raises the question whether an election as a member of the Gram Panchayat or an election as a member of the Anchal Panchayat constituted under the West Bengal Panchayat Act, 1956 can be set aside by the election tribunal on the ground that the candidate is not a citizen of India. The election of the petitioner as a member of the Sarvamangala Gram Panchayat as also his election as a member of the Basaria Anchal Panchayat have been set aside by the election tribunal on this ground by its order dated the 15th March, 1961. The election took place on December 10 and 11, 1961. The name of the petitioner had then been entered without any objection from anybody in the finally published electoral roll of the West Bengal Legislative Assembly relating to the are of the Sarbamangala Gram Sabha. The petitioner was born in the territory of India; but in 1948 he migrated from the territory of India to the territory now included in Pakistan. He married and settled in Pakistan and lived there for more than ten years. In 1958 he came to India as a Pakistan national with a Pak-passport for temporary stay under a 'C' visa and since then he is living in india. As the petitioner migrated from India to Pakistan after the first day of March, 1947 and before the Constitution of India came into force, he must be deemed not to be a citizen of India having regard to Article 7 of the Constitution.

The election tribunal rightly held that the petitioner never acquired the citizenship of India under the Constitution and that he never became a citizen of India.

2. The contention of the petitioner that the jurisdiction of the election tribunal is taken away by Section 9(2) of the Citizenship Act, 1955 is unsound and must be rejected. In Akbar Khan Alam Khan, v. Union of India, : [1962]1SCR779 the Supreme Court held that Section 9(2) of the Citizenship Act, 1955 does not bar the jurisdiction of a civil court to determine this issue. Likewise the power of the election tribunal to decide the issue is not taken away by the section.

3. On behalf of the petitioner it is next contended that he is not disqualified from being elected as a member of the Gram Panchayat and of the Anchal Panchayat by reason of the fact that his election cannot be set aside by the election tribunal on that ground. This argument requires serious consideration. The purpose of the West Bengal Panchayat Act, 1956 is to organise and establish panchayats in rural areas of West Bengal. The Act has been passed in conformity with the directive principle of State policy contained in Article 40 of the Constitution which enjoins that the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of Self-government. The Gram Sabha is the primary unit of self government under the Act Chapter II of the Act deals with Grant Sabha. Section 3 empowers the State Government to constitute Gram Sabha for any area. Section 7 provides far its membership and reads thus:

'(1) Every Gram Sabha shall consist of all persons whose names are included in the electoral roll of the West Bengal Legislative Assembly for the time being in force pertaining to the area for which the Gram Sabha has been constituted.

(2) The prescribed authority shall from time to time maintain a list of the names of the persons referred to in Sub-section (1) and such list shall be the list of members of the Gram Sabha'.

4. It will be seen that the Gram Sabha is not an elected body. All persons whose names are included in the electoral roll of the West Bengal Legislative Assembly for the time being in force pertaining to the area of the Gram Sabha automatically became members of the Sabha. Chapter III of the Act establishes a Gram Panchayat for every Gram Sabha. The members of the Gram Panchayat are by Section 11(2) elected by the members of a Gram Sabha from amongst themselves. Section 15 sets out the grounds of disqualification of a person for election as a member of the Gram Panchayat. Chapter IV deals with Anchal Panchayats. By Section 25 the State Government is required to establish Anchal Panchayats comprising contiguous Gram Sabha. Section 26(1) provides that every Anchal Panchayat shall consist of the members elected from among the members of every Gram Sabha within its jurisdiction by the Gram Panchayat concerned, but no member of a Gram Sabha shall be elected to be a member of the Anchal Panchayat if he has any of the disqualifications mentioned in Section 15. It is to be observed that a member of the Gram Sabha is eligible for election as a member of the Gram Panchayat or of the Anchal Panchayat and the fact that the candidate is not a citizen of India is not expressly mentioned in Section 15 to be a disqualification for such election. Large powers of local Self Government and administration are conferred upon the Gram Panchayat and the Anchal Panchayat by Chapters V and VI of the Act. Chapter VIM constitutes Anchal Panchayat and Gram Panchayat funds and confers powers of taxation on the Anchal Panchayat. Chapter IX vests certain public properties in the Gram Panchayat. Chapter XI provides for Nyaya Panchayats having judicial powers consisting of Vicharaks elected by the Anchal Panchayat from among the members of the Gram Sabhas and approved by the prescribed authority. Section 117 of the Act read with Rule 30 of the West Bengal Panchayat Rules, 1958 provides for determination of deputes as to election as a member of the Gram Panchayat or of the Anchal Panchayat, but the Act and the Rules do not specify the grounds upon which the elections may be set aside.

5. The contention of the petitioner is that as his name was entered in the electoral roll of the State Assambly pertaining to the area of the Sarbamangala Gram Sabha he became a member of the Gram Sabha automatically by virtue of Section 7 of the West Bengal Panchayat Act, 1956 and as he was a member of the Gram Sabha he was eligible for election as a member of the Gram Panchayat and of the Anchal Panchayat by virtue of Sections 11 and 26 of the Act and the fact that he is not a citizen of India is not a disqualification for such election under Section 15 of the Act or otherwise.

6. The point in issue is whether the name of the petitioner was 'included in the electoral roll of the West Bengal Legislative Assembly for the time being in force pertaining to the area for which the Gram Sabha has been constituted' within the meaning of Section 7 of the West Bengal Panchayat Act, 1956. If the answer be in the affirmative, the petitioner would be a member of the Gram Sabha and would be eligible for election as a member of the Gram Panchayat and of the Anchal Panchayat. On the other hand if the answer be in the negative, the petitioner would not be a member of the Gram Sabha and would not be eligible for election as a member of the Gram Panchayat or of the Anchal Panchayat and his election would be liable to be set aside. Now by Article 324 of the Constitution the superintendence, direction and control of the preparation of the electoral rolls for election to the State Legislature Assembly is vested in the Election Commission. Article 326 of the Constitution declares that the election to the State Legislative Assembly shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and Who is not less than twenty one years of age and is not otherwise disqualified under the Constitution or any law on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice shall be entitled to be registered as a voter at any such election. Part III of the Representation of the People Act, 1950 provides for the preparation and revision of the electoral rolls of the State Legislative Assembly and for correction of entries and inclusion of names in those rolls. Section 16 of that Act which enumerates the disqualification for registration in an electoral roll is as follows:

(16) (1) - 'A person shall be disqualified for registration in an electoral roll if he -

(2) is not a citizen of India; or

(b) is of unsound mind and stands so declared by a competent court; or

(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt * * * practices and other offences in connection with elections.'

16(2) - 'The name of my person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included : provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under Clause (c) of Sub-section (1) shall forthwith be re-instated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorizing such removal'.

7. Sections 17 and 18 of that Act provide that no person shall be entitled to be registered in the electoral roll for more than one constituency or in the electoral roll for any constituency more than once. Section 19 provides for the conditions of registration and enacts that every person who (a) is not less than twentyone years of age on the qualifying date and (b) is ordinarily resident in a constituency shall be entitled to be registered in the electoral roll for that constituency. Section 20 gives the meaning of 'ordinarily resident'. The electoral role must be prepared in accordance with the provisions of Sections 16 to 20 and no person can be registered as a voter in the electoral roll in contravention of those sections.

8. The entry of the name of any person as a voter in the electoral roll so prepared and maintained is proof of the title of the person to vote at the election nevertheless the electoral roll is not regarded as conclusive in cases of any person who is prohibited from voting by the Constitution or any statute or common law. See in this connection the observation of B. K. Mukherjea J. in Durga Shankar Mehta v. Raghuram Singh, : [1955]1SCR267 and see also Ghulam Mohiuddin v. Election Tribunal, : AIR1959All357 . The vote cast by such a person is not lawful and is liable to be disallowed on a scrutiny. The election tribunal can enquire into and consider the question whether a person is prohibited from voting, notwithstanding the fact the name of such a person is entered in the electoral roll. The English law after the passing of the Ballot Act, 1872 is substantially the same, see Petersfield Case, Stowe v. Jolliffes, (1874) LR 9 CP 734, Halsbury, 3rd Edition, Article 544. An alien is subject to a legal incapacity to vote and the vote of an alien is liable to be struck off on scrutiny, see Re Stepney Election Petition, Isaacson v. Durant, (1886) 17 QBD 54, Halsbury 3rd Edition Article 545. A non-citizen suffers from a fundamental disability as to voting and is disqualified for registration as a voter under Section 16(1)(a) of the Representation of the People Act, 1950. The non-citizen cannot be an elector under the law of the land and the inclusion of his name in the electoral roll as also any vote cast by him are illegal and liable to be struck off. By the express words of Section 16(2] the name of a person who becomes disqualified for registration is forthwith liable to be struck off the electoral roll. I think it is implicit in Sub-sections (1) and (2) of Section 16 that the name of any person who is disqualified for registration under Section 16 on the date of the registration is also liable to be struck off from the electoral roll. The striking off of the name of the disqualified elector from the electoral roll under Section 16 is a ministerial act and the Court will treat that as done which ought to be done. In the eye of law the name of the non-citizen will be considered to have bean struck off and not included in the electoral roll. The petitioner is therein not 'included in the Electoral Roll of the West Bengal Legislative Assembly for the time being in force pertaining to the area for which the Gram Sabha is constituted' within the meaning of Section 7 of the West Bengal Panchayat Act, 1956. Me was consequently not a member of the Gram Sabha and was not eligible for election as member of the Gram Panchayat and of Anchal Panchayat under Sections 11 and 26 of the Act. His disqualification is a good ground for setting aside the election and the election tribunal acting under Section 117 read with Rule 30 was competent to set aside the elections on that ground.

9. The learned Advocate on behalf of the petitioner relied on the decision of Sinha J. in Ajit Kumar Chatterjee v. Electoral Roll Registration Officer, Ehatar, 64 Cal WN 205. In that case an election as a member of the Gram Panchayat under the West Bengal Panchayat Act 1956 was challenged on the ground that the names of about 197 persons were wrongly included as voters in the electoral roll of the State Legislative Assembly. It was said that some of them were less than twenty years of age, others were rot residents within the jurisdiction and there were others who had their names already included in the register of another constituency. In short the objection was that the electoral roll of the West Bengal Legislative Assembly prepared under the Representation of the People Act, 1950 had been wrongly prepared in contravention of the provisions of Sections 17, 19 and 20 of the Representation of the People Act, 1950. In those circumstances Sinha J. held that with regard to the matters complained of, the electoral roll of the State Legislative Assembly prepared under the Representation of the People Act, 1950 must be regarded as conclusive for the purpose of constitution of the Gram Sabha under the Panchayat Act and that the election as a member of the Gram Panchayat could not be challenged on the ground that the names of those 197 persons had been wrongly included in the electoral roll. It is to be observed that in that case it was not a ground of challenge that any of the voters suffered from the disqualifications mentioned in Section 16(1)(a) of the Representation of the People Act, 1950. The question whether the electoral roll of the State Legislative Assembly must also be regarded as conclusive with regard to the disqualification mentioned in Section 16(1)(a) of the Representation of the People Act, 1950 was not in issue in that case. That case is, therefore, distinguishable.

10. I have, therefore, come to the conclusion that the election tribunal rightly set aside the elections.

11. The rule is discharged. There will be no order as to costs.

R.N. Dutt, J.

12. I agree with my Lord that the Rule should be discharged. But I shall add a few words.

13. The petitioner's name was included in the electoral roll of the West Bengal Legislative Assembly in force in 1960. Elections under the West Bengal Panchayat Act, 1956 were held in December, 1960 in the district of the West Dinajpur. On the 10th December, 1960, the petitioner was elected a member of the Sarbamangala Gram Panchayat. On the 11th December, 1960, he was elected a member of the Basuria Anchal Panchayat. On the 24th December, 1960, the opposite party filed an application under Section 117 of the Panchayat Act, 1956, read with Rule 30 of the Rules framed under the Act for setting aside the election of the petitioner as a member of the said Gram Panchayat and Anchal Panchayat. The Subdivisional Magistrate, Sadar West Dinajpur, acting as the Election Tribunal under the said Act set aside the election of the petitioner holding that the petitioner was not a citizen of India. The present Rule is against this order of the Election Tribunal.

14. Two points have been canvassed before us. Mr. Burman on behalf of the petitioner argues that Section 9(2) of the Citizenship Act, 1955, bars the Election Tribunal from deciding that the petitioner was rot a citizen of India. Section 9(1) of the Citizenship Act, 1955, states that a person who was a citizen of India at the commencement of the Constitution may subsequently acquire the citizenship of some other country. Section 9(2) of the said Act describes the authority having exclusive jurisdiction to determine it e citizen of India has acquired the citizenship of some other country. If the petitioner was ever a citizen of India the Election Tribunal was not competent to determine if he had subsequently acquired Pakistani citizenship. But the Election Tribunal is competent to decide if the petitioner was ever a citizen of India. This conclusion follows from the language of Section 9 of the Citizenship Act, 1955. Reference may in this connection be made to the Supreme Court decisions in : [1962]1SCR779 and the State of Andhra Pradesh v. Abdul Khader, : 1961CriLJ573a . These two decisions have been followed in our Court in Ataur Rahaman Sardar v. Deputy Secretary, Home Department 66 Cal WN 108. Section 9(2) of the Citizenship Act, 1955, is therefore no bar to the Election Tribunal deciding if the petitioner was ever a citizen of India. The Tribunal has found that the petitioner was born in India but he migrated from India to the territory of Pakistan after 1st of March, 1947 and before the commencement of the Constitution. The petitioner claims to be a citizen of India under Article 5 of the Constitution having been born in India. But Article 5 is subject to Article 7 of the Constitution which states that a person even though born in India who had migrated from India to Pakistan after the 1st of March, 1947 and before the commencement of the Constitution, is not a citizen of India. The petitioner was not, therefore, a citizen of India.

15. Mr. Burman then argues that the Election Tribunal was not competent to go behind the electoral roll prepared under the Representation of the People Act, 1950. Section 7 of the Panchayat Act, 1955 states that every Gram Sabha shall consist of all persons whose names are included in the electoral roll of the West Bengal Legislative Assembly for the time being in force. The name of the petitioner was included in the electoral roll in force in 1960. On the basis of this electoral roil the petitioner was deemed to be a member of the Sarbamangla Gram Sabha. The argument proceeds that the electoral roll is conclusive and the Tribunal cannot go behind it to determine if the entry was rightly made. Mr. Burman relies on the decision of this Court in 64 Cal WN 205. Sinha J. held in that case that the electoral roll which has been prepared under the Representation of the People Act, 1950 must be taken as conclusive. There in that case it was argued that the electoral roll was not rightly made as some persons were included in the roll though their names should not have been included on grounds of age or residence. It was held that no such objection could be raised and the electoral roll should be taken to be conclusive. The objection raised in that case related to the conditions of registration enumerated in Section 19 of the Representation of the People Act, 1950. But in this case the objection relates to a fundamental question, namely, that the petitioner was not a citizen of India at the time the electoral roll was prepared. Under Article 326 of the Constitution only a person who is a citizen of India can be included in the electoral roll. Section 16 of the Representation of the People Act deals with such cases and it has been provided that a person who is not a citizen of India shall be disqualified for registration in the electoral roll. It was not necessary for Sinha J. to decide the question if the electoral roll was final when an objection is raised that a person's name should not have been included in the roll as he was not a citizen of India. The Allahabad High Court in : AIR1959All357 (FB) held that the electoral roll should be taken as conclusive when an objection is raised about the conditions of registration enumerated in Section 19 of the Representation of the People Act. But when the objection raises a question of disqualification as enumerated in Section 16 of the Representation of the People Act, the electoral roll is not final and the Election Tribunal is competent to go behind the electoral roll. This appears to me to he the correct position in law and there are good grounds for it. The basis for a person's inclusion in the electoral roll is that he is a citizen of India. If at the relevant time he was not a citizen of India, then he had no legal right to be included in the electoral roll. When a person is incapable of being included in the electoral roll under the provisions of the Constitution itself, the Election Tribunal is competent to set aside the election on the ground that there was no legal basis for the inclusion of his name in the electoral roll. The conclusion finds support in the Supreme Court decision in : [1955]1SCR267 .

16. The Election Tribunal in the present case was,therefore, within its competence to decide that the petitioner's name was not rightly included in the electoral rolland to set aside his election as a member of the GramPanchayat and Anchal Panchayat.


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