Judgment

SUBBA RAO, J. : This appeal by special leave arises out of a dispute in respect of the election to the Panchayat of Byappanahalli, from its firs constituency, in the State of Mysore.

2. The calendar of events for the said election was as follows:

Notification of election ... 6-2-1960

Date by which candidates has to file nomination papers ... 16-3-1960

Date of scrutiny of nomination papers ... 18-3-1960

Poll ... 13-4-1960

Declaration of result ... 14-4-1960

The appellant and five others filed their nomination papers within the prescribed date. The polling took place on the schedules date, namely, April 13, 1960.

The candidates secured votes as mentioned under:

Appellant ...169 votes

Respondent 2 ...158 votes

Respondent 1 ...128 votes

Respondent 3 ...115 votes

Respondent 4 ... 38 votes

Respondent 5 ... 46 votes

The appellant and respondent 2 were duly declared elected to the Panchayat.

3. Respondent 1 filed an election petition under S. 13 of the Mysore Village Panchayats and Local Boards Act, 1959 (Mysore Act No. 10 of 1959), hereinafter called the Act in the Court of the Second Munsiff, Bangalore, for a declaration that the appellant was not duly elected and for a further declaration that the first respondent was duly elected. The case of the first respondent, as disclosed in his petition, was that on the date fixed for filing of nominations the appellant s name was not in the authenticated list of voters published under R. 3, cl. (5) of the Mysore Panchayats and Taluk Boards Election Rules, 1959, hereinafter called the Rules, and, therefore, he was not entitled to file his nomination. It was his further case that the appellant was not ordinarily a resident of Byappanahalli and, therefore, he was disqualified from standing for the election from that constituency.

4. The learned Munsiff held on the second point that the appellant was ordinarily a resident of the said village and was, therefore, qualified to be included in the electoral roll of the Panchayat, but he came to the conclusion that his name was not included in the authenticated list of voters of the said Panchayat. On that finding he set aside the election of the appellant and declared the first respondent, who secured the next highest number of votes, to have been duly elected in. his place.

5. On appeal, the learned Judges of the High Court, after noticing the finding of the Munsiff to the effect that the appellant s name was not included in the authenticated list of voters for the Panchayat, observed that they did not agree with the reasoning given by the learned Munsiff, but they agreed with his conclusion on the basis of a different reasoning. They held that though the name of the appellant was included before the prescribed date in the electoral roll of the legislative constituency under S. 23 of the Representation of the People Act, 1950, It was so included in direct violation of R.26 of the Representation of the People Rules, 1956, and that, therefore the said inclusion was void. Having so held, they agreed with the learned Munsiff that the appellant s election was liable to be set aside. Hence the appeal. It may be mentioned that there was no appearance on the side of the respondents.

6. Before considering the point raised it will be convenient to clear the ground Section 9 of the Act reads:

"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 in 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. Explanation,-For the purpose of this section, electoral roll shall mean an electoral roll prepared under the provisions of the Representation of the People Act, 1950 (Central Act XLIII of 1950) for the rime being in force."

Section 10 says,

"Every person whose name is in the lis