J.R. CHOPRA, J.— This reference has been made by a learned single Judge of this Court in S.B. Civil Writ Petition No. 125 of 1982. The question that has been referred for the decision of a larger Bench reads as follows:

"That whether the illegal preparation of the electoral roll can be challenged by way of election petition under r.78 (d) (iv) of the Election Rules of 1961 or not ?"

2. The facts necessary to be noticed for the disposal of this reference briefly stated are : that the petitioner Kushal Chand is the resident of ward No. 9 of village Tausar, Tehsil and District Nagaur. He has contested the election for the post of Sarpanch against non-petitioner No.5 Shri Mangilal but he has lost it. The petitioner has alleged that while revising the electoral rolls of Gram Panchayat, Tausar, the authorised Officer under the Rajasthan Panchayat Act, 1953 has included 326 names in the electoral rolls wrongly because 142 persons out of them were minors, 61 persons were non-residents and 123 persons have migrated to other places several years ago. It has further been alleged that 28 persons who were already registered as voters in certain wards were transposed to different wards without any justification. Objection petitions were filed before the authorised Officer but he rejected them without holding any preliminary enquiry and without passing any speaking order inspite of the fact that objection petitions were supported by affidavits and have been filed by the Electorals of the concerned wards as provided by the Rules. He only passed a criptic order ^^vLoh—r gS** without assigning any reasons as to why objection petitions have been rejected. Appeals were preferred before the Collector but the Collector has rejected the appeals on the ground that with the appeals copies of the orders have not been filed. The case of the petitioner is that because of the wrong inclusion and transposition of the voters, non-petitioner No. 5 Shri Mangilal and 10 other Panchas could get themselves elected to the Gram Panchayat and non-petitioners No. 16 and 17 could get themselves co-opted to the Panchayat. The authorised Officer rejected the objection petitions on 18.11.81 and the Collector rejected the appeals before 25.11.81. On 25.11.81, the Collector issued a public notice under r.14 of the Rajasthan Panchayat & Nyaya Panchayat Election Rules, 1960 (hereinafter referred to as the Rules) and published the programme for election vide Annexure-11. The contention of the petitioner is that the result of the election, not only of the Sarpanch but also of the Ward Panchas, stands vitiated on account of the wrong inclusion of 326 voters in the voters list and transposition of 28 voters in different wards, According to the petitioner, as per a Division Bench decision of this Court in Hapu ram vs. M. J. M. Merta (1) the wrong inclusion of the names or transposition of the names in the electoral rolls cannot form a part of the election dispute and, therefore, such a wrong inclusion of fresh names in the electoral rolls as also the wrong transposition of the names in the electoral rolls cannot be challenged by way of an election petition and so, he is left with no other alternative remedy to get this election quashed by an appropriate writ under Article 226 of the Constitution. According to the petitioner, preparation of the proper electoral rolls is the basic foundation for holding the election and since that foundation is missing in this case, the election held on the basis of the final electoral rolls published by the Collector, which is inclusive of 326 names referred above and 28 transposed names in different wards, has vitiated the election and, therefore, this election should be set aside by a writ in the nature of mandamus or quo warranto or any other appropriate writ, order or direction be issued and the proceedings taken by non-petitioner No 4 in dealing with the claims and objections for inclusion of 326 persons in the voters list and transposition of

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