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HIGH COURT OF MADHYA PRADESH
P.V. DIXIT & K.L. PANDEY, JJ.
Idandas
Vs.
Election Officer (Gram Panchayat) East Nimar
M. P. No. 94 of 1960
Decided on: 28-9-1965
(2) Gram Panchyats (Election Petitions etc.) Rules, 1962-R.22 (i) (d) (iii)-electoral roll corrected in contravention of rules – election materially effected – remedy lies in election petitioner.
An application for inclusion in or exclusion from a voter's list of a name could not be entertained within one month before the date fixed for the filing or nomination papers. But if the alterations made in the electoral roll under rule 11 were after the expiry of the limitation prescribed thereby and the inclusion in or exclusion from the voters list of the names of some persons affected the election of any individual Panch from a ward then the applicant has the remedy of challenging the election of that individual Panch by an election petition. Under rule 22(i) (d) (iii) of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification on the Membership) Rules, 1962 an election petition calling in question the election of a panch can be made on the ground that the result of the election in so far as it concerns the returned candidate has been materially affected by any non compliance with the provisions of the Act or of any rules or orders made thereunder, 1965 JLJ 326 referred to.
Rule 11(6) of the Gram Panchayat Election and Co-option Rules, 1963, put in a positive form would read as enjoining the Collector or the authorised officer to refrain from making any alteration in the list after the period of limitation specified in that rule. If an order under rule 11 (6) is passed contrary to it, there would clearly be a non-compliance with that rule [Para 6
(3) Constitution of India-Art. 226-Gram Panchayat Election-illegality in preparation of electoral rolls - is no ground to quash the election – election when may be interfered with.
Where an election has already taken place, the entire ejection cannot be lightly interfered with unless it is shown that there has been a material infringement or violation of the Act or the rules which goes to the root of the entire election or that there has been a fundamental deficiency in the preparation of the electoral roll in accordance with the relevant rules. In the present case, merely on the ground that the names of some ninety-six persons were entered in the voters' lists of different wards and the names of the four persons were deleted therefrom, it cannot be held that the electoral roll, on the basis of which the election of the respondents was held, was inherently, fundamentally, or materially imperfect and defective. The petitioner's prayer for quashing the entire election of the aforesaid respondents cannot, therefore, be granted under Art. 226. [Para 7
Ordinarily and normally the High Court should not, in the exercise of its powers under articles 226 any 227 of the Constitution, interfere with an election when the aggrieved person has the remedy of an election petition for calling into question the election. It does not mean that the High Court should never interfere with an election in the exercise of its powers under article's 226 and 227. 1965 JLJ 332 explained. [Para 10
(4) Pancayats Act, 1962 (M.P.) - S. 19 (1) - Gram Panchayats Election and Co-option Rules. 1963 (M.P.) - Rr. 77, 78 and 80 - co-option-only elected members can co-opt. Panchas – co-opted members – cannot take part in subsequent co-option – Rule 78(10) – interpretation of.
It is plain from the provisions of the Act and the Rules in particular from section 19 (1) of the Act and rules 77 and 78 of the Rules, that the co-option of members to a Gram Panchayat, when necessary is by elected members of the Gram Panchayat. Section 19 (1) and rule 77 say in so many words that if it becomes necessary to co-opt members as provided by section 11 of the Act, then a meeting of the newly elected Panch as, for the purpose of co opting, shall be called. The notice under rule 78 of the meeting has to be given to the elected Panchas. There is no provision whatsoever in the Act itself that a person co-opted shall be entitled to participate in the co-option of members subsequent to his own co-option.
It is true that sub-rule (10) of the rule 78 says that the co-option of the Panch as shall be taken in the order in which the Panchas are mentioned in clauses (i) and (ii) of sub-section (3) and sub-section (5) of section 11. The purpose of this sub-rule is not at all clear. But when the Act itself gives only to the elected members the right to co-opt other Panchas, then sub-rule (10) of rule 78, which merely lays down the order in which the Panchas are to be co-opted, cannot be read as a provision giving to a co-opted Panch the right to take put in a subsequent co-option. Such a reading of that rule would be utterly inconsistent with section 19 (1) of the Act and would make that rule ultra vires. [Para 8
(5) Panchayats Act, 1962 (M.P.) - S. 11 – co-option of members-can be only from elected members.
Co-option of members under section 11 can only be by elected members, and a person who has been co opted cannot take part in a co-option subsequent to his own co-option. [Para 9
Dixit, C.J. - 1. By this application under articles 226 and 227 of the Constitution, the petitioner who claims that he is an elector in Harsud Gram Panchayat, challenges the validity of the entire election and co-option to the Harsud Gram Panchayat, and seeks an appropriate writ or direction for quashing the election of respondents Nos.3 to 22 and co-option of the respondents Nos. 23, 24 and 25. He also questions the legality of a supplementary voters' list published on 23rd December 1964 under rule 11 of the Madhya Pradesh Gram Panchayats Election and Co-option Rules, 1963 (hereinafter referred to as the Rules) containing the names of some persons, whose names did not appear in the original list, and prays that this list be quashed by the issue of a writ of certiorari. It is also prayed that the order passed by the respondent No.2 on 23rd December 1964 deleting the names of four persons from the voters' list be also quashed. The legality of the meeting of the elected members called on 16th January 1965 for the co-option of two women members and a representative of the co-operative societies has also been attacked, and a writ for quashing the notice issued by the respondent No.2, the Block Development Officer, Harsud, has also been sought.
2. The material facts are that according to the election programme published on 11th November 1964 by the prescribed authority, the nomination papers were to be filed during the period from 10th November 1954 to 20th November 1964. The date fixed for polling was 2nd January 1965. After the voters' list had been finalished under rule 8, some ninety-six members made applications before 1st December 1964, under rule 11 for inclusion of their names in the list. Those applications were decided on various dates, and ultimately as a result of their disposal a supplementary list of ninety-six Voters was published by the respondent No.2 on 23rd December 1964. On that date, the respondent No.2 also made an order deleting from the original list of voters the names of four persons. Thereafter the general election was held on the basis of the original and supplementary lists, and the respondents Nos. 3 to 22 were elected to the Panchayat from various wards. On 9th January 1965, the respondent No.2 issued a notice convening a meeting of the elected members for the purpose of co-opting members as required by section 11 and 19 of the Madhya Pradesh Panchayats Act, 1962 (hereinafter called the Act). In accordance with section 11, it was necessary that on the Harsud Gram Panchayat there should be two women members and the chairman of any co-operative society or societies functioning in the area of the Gram Sabha. As in the election held no woman or a chairman of any co-operative society or" societies was elected, it became necessary to hold a meeting as laid down in section 19 for co-option on the Gram Panchayat of two women and the chairman of a co-operative society It appears that the co-option of women members was held first and the co-option of the chairman of a co-operative society was held later. It is not at all clear from the record whether the co-option of two women members was held simultaneously or one other. Be that as it may, the procedure that was followed for the purpose of co-opting these member was that the elected members first co-opted one or two 'women, and then the co-opted woman or women participated in the co-option of other members.
3. Shri Dabir, learned counsel appearing for the petitioner, argued that the electoral roll on the basis of which the election had been held was prepared illegally and contrary to the rules, in that even after it was finalised under rule 8 some names were added to the voters' list and others were deleted therefrom after the first date of submission of nomination papers, that is, 10th November 1964; and that there being thus a fundamental illegality in the preparation of the electoral roll, it was totally vitiated and the election held on the
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