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1974 Supreme(MP) 109
Madhya Pradesh High Court
G. L. OZA,K. K. DUBE
Ramgulam Shri Baijnath Prasad - Appellant
Versus
Collector, District Guna - Respondent
Decided On : 10/04/1974
H.G. Mishra, for Applicant; A.B. Mishra and J.P. Shrivastava, Addl. Govt. Advocate, for Opposite Parties.
Headnote:(1) Municipalities (Preparation, Revision and Publication of Electoral Rolls, Election and Selection of Councillors) Rules, 1962 (MP)-R. 8 (1) clerical errors in the electoral rolls-name of one brother substituted for another-is not correction of clerical error-the change is unauthorised.
Where Gopal Narain son of Ram Prasad was written in the voters' list it could not be said that Govind Narain could be written as Gopal Narain by error in the process of writing or in the machanical process of printing or typing. As it is clear that the two names stand for two different individuals being brothers it cannot be said to be any error of writing or description. But clearly this is a question of deletion of the name of Gopal Narain.
This could not be done by the Naib- Tahsildar while exercising powers under Rule 8 of the Rules framed under section 29 of the M. P. Municipalities Act. [Para 10
(2) Municipalities Act, 1961 (MP)-S. 31 (2)-scope of the power-entry 'defective in parliculars'-meaning of-names cannot be substituted under this provision.
By reading the three clauses (a), (b) and (c) of section 31 (2) of the Act, it is clear that the power conferred by section 31 is only power to correct an entry, or to transpose the name of a voter from one place to another, or to delete the name of the voter, if he is dead, or has ceased to be the ordinary resident of the ward. It is significant that none of the provisions of section 31 (2) permits an authority appointed under section 29 (2) to add the name of a person in the electoral roll, which was initially not included Apparently, no claim for inclusion has been specifically provided for under section 31 (2). It is also significant that the language used in sub-clause (a) is about any entry which is erroneous or defective in any particular. "Particular" therefore, refers to particulars, which are mentioned in any entry in the electoral roll viz. serial No, address name father's name and age. Therefore, it is clear that under this sub-clause, if there is no doubt about the identity of the person, whose name is included in the voters list and there is some error in one of the particulars which are mentioned in the entry, it could be corrected under this sub clause of section 31. It cannot be doubted that substitution of the name of Govind Narain in place of Goral Narain could not be said to be a correction of any particular in the entry. [Para 12
(3) Constitution of India-Art. 226-election matters-person contesting election of the basis of defective electoral rolls-not estopped from challenging the election.
(4) Election-person contesting election on the basis of defective electoral rolls-there is no estoppel or acquiescence.
A candidate who takes chance at elections and fails, he should not be allowed to challenge the election of his opponent on the ground that electoral rolls were defective the plea is in substance one of estoppel. There can be no question of estoppel or acquiescence because it cannot be said that the position of the other side has in any way altered by reasons of something done or not done by the petitioner. AIR 1955 Nag. 49 (FB) relied on. [Para 14
(5) Constitution of India-Art. 226-chaflenge to electoral rolls-alternative remedy of election petition not available on this ground- no bar to interference in writ proceedings - Municipalities Act, 1961 (MP) S. 22 (1) (d) (iii). [Para 15
(6) Constitution of India-Art. 226-no election petition on the ground of electoral roll being defective-does not bar the extraordinary jurisdiction of the High Court-effect of delay-Municipalities Act, 1961 (MP)-S. 22 (1) (d) (iii).
(7) Municipalities Act, 1961 (MP)-S. 22 (d) (iii)-election petition not provided from illegality in preparing electoral roll-extraordinary jurisdiction of the High Court not precluded-effect of delay-Constitution of India -Art. 226.
It was contended that as section 22 (1) (d) (iii) specifically provides that an election cannot be set aside on the basis of noncompliance with the Rules framed under section 29, and, therefore, it appears that the legislature intended that on this ground election could not be interfered with On such a ground election should not be interfered with even in petition under Article 226 of the Constitution.
Held: A remedy under Article 226 is extraordinary and no election can be allowed to be maintained on the basis of electoral roll, which is not prepared in accordance with law. [Para 16
Such petition cannot be dismissed merely on the ground of delay. 1967 JLJ 559 relied on. [Para 17
OZA, J. : - This petition under Article 226 of the Constitution has been filed by the petitioner against an order passed by the Naib Tahsildar dated 16-9-70; who corrected the electoral roll for ward No. 2, Chanderi Municipal Council, and allowed the inclusion of the name of respondent No. 3. The petitioner has also challenged the election of respondent No. 3 from ward No. 2 of the Chanderi Municipality as according to the petitioner the inclusion of the name of respondent No. 3 in the voters' list was beyond the powers of the Naib Tahsildar and, therefore, respondent No. 3 was not a voter in the voters' list of Chanderi Municipality for the election held on 26-10-70. Consequently, he could not stand as a candidate for the election held on 26-10-70.
2. According to the petitioner, Collector Guna under Rule 8 of the M. P. Municipalities (Preparation, Revision and Publication of Electoral Rolls, Election and Selection of Councillors) Rules, 1962, issued a notice to the effect that the electoral roll for general election of Municipal Council Chanderi was prepared and it was duly published on 13-7-70. Whatever claims and objections were preferred to the Tahsildar Pargana Mungaoli, were duly decided and no appeals were preferred against the orders of Tahsildar before the Sub-divisional Officer, Ashoknagar. Therefore, under Rule 8, the Collector caused publication of the final electoral rolls, and these electoral rolls became final from the date of their publication, i.e. 31-8-70 for the Municipal Council Chanderi for the elections of the Municipal Councillors, which were held on 26-10-70. Under Rule 8 of the Rules, clerical errors in the electoral rolls could be corrected at any time upto date of election by Revenue Officer not below the rank of Naib Tahsildar, as may be appointed by the Collector in this behalf and, therefore, the Collector, Guna appointed non-petitioner No. 2 to exercise powers under Rule 8.
3. According to the petitioner, in the voters' list of the assembly of 1966 in respect of Chanderi ward No. 2 at serial No. 177 name of non-petitioner No. 3 was entered and at serial No. 179 name of the brother of non-petitioner No. 3 was entered. But according to the petitioner when the list was finally published as mentioned above, the name of non-petitioner No. 3 was not included, but the name of his brother Gopal Narain was included at serial No. 121. Non-petitioner No. 3 Govind Narain applied to the non-petitioner No. 2, Naib Tahsildar Chanderi that his name is entered at serial No. 121, but he is described as Gopal Narain son of Ramprasad aged 28 years and he, therefore, submitted that this name be removed and his name be included in the voters' list. According to the petitioner, the Naib Tahsildar purporting to act under Rule 8 allowed the application of non-petitioner No. 3 and ordered his name to be entered in place of Gopal Narain and it was on the basis of this inclusion of his name in the voters' list that non-petitioner No. 3 contested the elections and ultimately succeeded from ward No. 2 defeating the petitioner.
4. It was contended on behalf of the petitioner that under Rule 8 only clerical errors could be corrected and what was done by the Naib Tahsildar, in the present case, was not a correction of the clerical error, but was a case of substitution of one name by the other and it was therefore, contended that this could not be done. Consequently, the name of respondent No. 3 could not be included in the voters' list of ward No. 2 for the elections held in 1970. But as respondent No. 3 was not included in the voters' list, in view of Section 34 of the M. P. Municipalities Act, he could not be a candidate at the election. Consequnetly, his nomination paper could not be accepted and it was, therefore, contended that as the nomination of respondent No. 3 itself could not be accepted, the petitioner was the only candidate from this ward and, therefore, seeks a direction that he be declared elected to the Mu
