Abdul Majid vs The State of Punjab and Others

K.L. Gosain, J.—This judgment will dispose of Civil Writ petitions Nos. 1787, 1776, 1804, 1806, 1814, 1815, 1816, 1788, 1748, 1833, 1836, 1826, 1827, 1829, 1830, 1831, 1770, 1834, 1802, 1813, 1810, 1759, 1809 of 1960, as the main points involved in all of them are the same. The Petitioners in all these cases challenge the elections of the Sarpanches and Panches held in their respective villages in the months of November and December, 1960 and seek to have appropriate writs, directions or orders quashing the said elections. In some cases they are defeated candidates and in others they are members of the Gram Sabhas for their areas. They allege in their petitions two main grounds for setting aside the said elections and these are--

(1) that no separate electoral rolls were prepared for the elections to the Gram Panchayats in question and no dates were fixed by the authorities concerned for putting in claims and objections regarding the inclusion in or exclusion of the names from the electoral rolls meant for the Punjab Legislative Assembly, and

(2) that the Punjab Gram Panchayat Amendment Bill, 1959 had not been enacted in accordance with the procedure prescribed for the same in the Constitution of India and it was, therefore, not valid piece of legislation.

In some of the petitions a ground is also taken that the election programme had not been properly notified as required by Rule 3 of the Gram Panchayat Election Rules, 1960. It is also urged in some of the cases that Rule 48 of the aforesaid Gram Panchayat Election Rules which authorises the Deputy Commissioner to delegate his functions to other officers is ultra vires inasmuch as the Act itself does not give any power to the Government to frame such a rule.

All the petitions are opposed on behalf of the State and some are also opposed by the Panches and Sarpanches elected at the said elections and added as Respondents in those petitions. The case of the Respondents is that no separate electoral rolls were at all needed for the elections in question as every person who was for the time being entered as a voter in the electoral rolls of the State Legislative Assembly was a member of the Sabha of the Sabha area in question. They deny that the Punjab Gram Panchayat Amendment Act, 1960 was an invalid piece of legislation and aver that it was validly and properly passed by the Legislature. In some of the cases it is denied that the provisions of Rule 3 of the Punjab Gram Panchayat Election Rules were not complied with, bat in some others it is admitted that the publication of the notice contemplated by the said rule was not made seven days before the date fixed for filing the nomination papers. It is, however, pleaded that the non-observance of Rule 3 did not invalidate the elections and the Petitioners were not entitled to ask for extraordinary remedies merely by reason of the non-compliance with the said rule. The Respondents have also pleaded that the Petitioners having not taken their ordinary remedies provided by Section 8 of the Gram Panchayat Act, 1952, were not entitled to move this Court under Article 226 of the Constitution of India and that this Court should, in the circumstances, use its discretion in disallowing the prayer for the extraordinary remedies.

It is not admitted by the Respondents that Rule 48 is in any way beyond the powers of the Government.

We have heard the learned Counsel for the parties at great length Mr. Rajinder Sachar, who argues the main case, contends that it is of the essence of every election that an electoral roll should be prepared and claims and objections against the same be invited. His argument is that non-preparation of the roll is fatal to the election and in Civil Writ Number 1826 of 1960 he has given some instances in which some of the people who were entitled to be enrolled as members of the Gram Sabha had actually not been enrolled and some others who were not so entitled had been enrolled. He drew our attention to a Division Bench judgment of this Court in Piara Singh v. Lachhman Singh (1960) 62 P.L.R. 901, the head-note of which reads as under:

Held, that there can be no proper election unless the people entitled to vote know that they possess this right and also know in which ward or constituency they can exercise that right. Therefore separate electoral rolls should be prepared'' for various wards.

We regret we cannot accept the aforesaid contention. The law relating to the Gram Panchayat Elections in Punjab is entirely different from that relating to the municipal elections. There are no constituencies or wards in the Panchayat elections and one election is held for all the Panches and the Sarpanch of each Gram Sabha. Sub-section (3) of Section 5 of the Gram Panchayats Act, 1952; provides that "every person who, for the time being, is entered as a voter on the electoral roll of the State Legislative Assembly for the time being in force, and pertaining to the Sabha area, shall be a member of the Sabha of that Sabha area." According to Rule 2 of the Gram Panchayat Election Rules, an elector means "a person who is entered in the electoral rolls for the State Legislative Assembly in force for the time being in relation to the Sabha area concerned." The electoral rolls for the Legislative Assembly have for all intents and purposes to be treated as the rolls for the Panchayat elections and anyone who is recorded as an elector there has a right of vote at the said elections.

Rule 8 of the Municipal Election Rules as it stood previous to the addition of Rules 8A to 8K to the same read as under:

The rolls of each constituency of a Municipality shall be the electoral roll for the Punjab Legislative Assembly in relation to the said constituency operative on the date fixed by the Deputy Commissioner for the submission of nomination papers under Rule 10.

This rule, therefore, contemplated preparation of separate rolls of each constituency of a municipality and obviously the rolls of the Legislative Assembly could not be substituted for those of each constituency of the municipality. It is quite clear that each municipality had different constituencies and the rolls of the Assembly had to be modified so as to serve as rolls of the various constituencies of each municipality and this modification could only be done by preparing separate rolls for each of the constitutions of the municipalities. The basis of those rolls were ordinarily to be the electoral rolls of the Assembly, but necessary changes had of necessity to be made in them to enable the preparation of rolls for the different constituencies. In the Panchayat elections the preparation of separate rolls is not at all contemplated inasmuch as every person who for the time being is entered as a voter on the electoral rolls of the State Legislative Assembly for the time being in force and pertaining to the relevant Sabha area is automatically a member of the Sabha of that Sabha area and is as such deemed to be an elector for the said area. Elaborate procedure for revision of the said rolls is prescribed in Sections 21, 22 and 23 of the Representation of Peoples Act and in rules 25, 26 and 27 framed under the said Act.

Annual revision of the rolls is made by the State but any person can at any time apply for his own name being included in or some one else''s name being excluded from the said rolls. The roll is, therefore, capable of being kept up-to-date and is presumably so kept. Our attention has not been drawn to any provision in any Act or Rules under which it may be necessary to prepare any separate electoral rolls for the purposes of the Panchayat elections, and the first contention of Mr. Sachar must, therefore, be repelled.

It is true that the Gram Panchayat Amendment Bill, 1959 which was introduced in the Punjab Vidhan Sabha on the 15th November, 1959, was referred to the Regional Committees and the said Committees proposed some amendments. It is also true that the bill was ultimately passed by the Punjab Legislative Assembly in the form in which it had not been reported by the Regional Committees. Mr. Sachar contends that the provisions of Rule 171A of the Rules of Procedure and Conduct of Business in the Punjab Legislative Assembly were for that reason attracted to the case but were not complied with and that the Amendment Act is, therefore, not a valid piece of legislation. The aforesaid Rule 171A reads as under:

171A. Special Provisions Regarding Regional Bills.--

(1) When a bill as reported by the Regional Committee is not passed by the Assembly in the form in which it has been reported, but is passed in the form which, in the opinion of the Speaker, is substantially different from that as reported by the Regional Committte, or is rejected by the Assembly, the Speaker shall submit to the Governor:

(a) In any case where the Bill has been passed by the Assembly in a substantially different form, the Bill as passed by the Assembly together with the Bill as reported by the Regional Committee;

(b) In any case where the bill is rejected by the Assembly, the bill as reported by the Regional Committee.

(2) The Governor shall as soon as possible after the submission to him of the bill, return the Bill to the Assembly with a message recommending either that the Bill be withdrawn or that it be passed in the form in which it has been reported by the Regional Committee or in the form in which it has been passed by the Assembly and the message received from the Governor shall be reported by the Speaker to the Assembly and, accordingly, the Bill shall be deemed to have been withdrawn, or as the case may be, be deemed to have been passed by the Assembly in the form recommended by the Governor.

A bare reading of the rule shows that the submission of the bill to the Governor is necessary only "when a bill as reported by the Regional Committees is not passed by the Assembly in the form in which it has been reported but is passed in the form which in the opinion of the Speaker is substantially different from that as reported by the Regional Committees or is rejected by the Assembly." The matter is, therefore, left entirely to the opinion of the Speaker and unless the Speaker is of the opinion that it has been passed in the form which is substantially different from that as reported by the Regional Committees, no reference to the Governor is at all necessary. It is the Speaker alone who has to form his opinion about the matter and it is he alone who has the power to refer the bill to the Governor. Mr. Sachar''s case is that there were substantial differences between the original bill and the form in which the Regional Committees wanted it to be passed and that it was necessary for the Speaker, in the circumstances, to have referred the bill to the Governor. Obviously we cannot in this respect substitute our own judgment for that of the Speaker because Rule 171A has left the matter to the opinion of the Speaker and not to the opinion of anyone else.

In Allcroft v. Lord Bishop of London, Lighton v. Lord Bishop of London (1891) A.C. 666, Section 9 of the Public Worship Regulation Act, 1874, came up for consideration before the House of Lords. This section provided that where a representation has u/s 8 been sent to the bishop of the diocese complaining of an unlawful alteration in or addition to the fabric, ornaments or furniture of a cathedral church, the bishop shall take certain specified steps to have the matter of the complaint tried in one of the ways prescribed by the Act "unless the bishop shall be of opinion, after considering the whole circumstances of the case, that proceedings should not be taken on the representation, in which case he shall state in writing the reason for his opinion" etc. A representation was sent to the Bishop of London complaining about some unlawful alterations, etc., but he replied that having in pursuance of the Act considered the whole circumstances attending the representation, he was of the opinion that proceedings should not be taken for reasons which he stated at length, the reasons being based upon his view of the decision in some case of the Privy Council and upon the mischievous results which such litigation would in his opinion cause. On an application for a mandamus to compel the bishop to proceed according to the Act, upon the ground that the bishop''s reasons showed that he had not considered the whole circumstances of the case, the Court of Appeal held that there did not appear to be any ground for either contention and that a mandamus ought not to issue. It was held by the House of Lords, affirming the decision of the Court of Appeal, that the bishop had acted within his jurisdiction and exercised the discretion vested in him; that whether the reasons he gave were good or bad, the bishop having considered all the circumstances which appeared to him, honestly exercising his judgment, to bear upon the particular case, his reasons could not be reviewed ; and that there was no ground for a mandamus.

This ruling applies on all fours to the facts of the present case. The aforesaid Rule 171A does not place any obligation on the Speaker even to give his reasons and leaves it entirely to him to refer the bill to the Governor if he is of the opinion that there are substantial differences between the original bill and the form in which the Regional Committees have recommended the same to be passed. The legal presumption is that the Speaker did apply his mind and was not satisfied that there was any case for a reference to the Governor. Moreover, Article 212 of the Constitution of India expressly bars an enquiry by Courts into the proceedings of the Legislature. This Article is in the following terms:

(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers.

The language in which this Article is couched is unequivocal and there is no scope for any doubt that the orders of the Speaker in exercise of his powers are immune from being questioned in any Court.

The main arguments on the third contention, namely, that the provisions of Rule 3 of the Gram Panchayat Election Rules, 1960, were not complied with in some of the cases, have been addressed to us by Mr. Sarin in Civil Writ No. 1815 of 1960. This rule enjoins upon the Deputy Commissioner to frame a programme for general elections, and enumerates the matters for which dates have to be specified in the said programme, and also provides for power to amend the programme. The argument is that the provisions of Sub-rule (2) of this rule were not complied with and it is, therefore, necessary to examine these provisions in detail. This sub-rule reads as under:

(2) The election programme shall be published not less than seven days before the date fixed for filing the nomination papers--

(a) by posting a copy at the offices of the Deputy Commissioner, the District Panchayat Officer, the Block Development and Panchayat Officer, the Social Education and Panchayat Officer, and at such other conspicuous place(s) in the Sabha area as may be determined by the Deputy Commissioner in this behalf ; and

(b) by beat of drum within the Sabha area.

Mr. Sarin urges that the last date for filing the nomination papers in this case was 23rd November, 1960, and that in order to comply with Sub-rule (2) of Rule 3 it was necessary that the programme should have been published not later than the 15th November, 1960 but that it was actually published some time on the 18th November, 1960, as is clear from the roznamcha of the Patwari (copy an-nexure ''A'' to the petition). Basing himself on two rulings of the Rajasthan High Court published in Prabhudayal Vs. Chief Panchayat Officer, Jaipur and Others, and Anokhmal v. Chief Panchayat Officer AIR 1957 Raj 398, the learned Counsel argues that the elections held for the Panchayat in question must be quashed on this short ground.

After giving our careful consideration to the matter we regret we cannot accept this contention. The two rulings of Rajasthan High Court proceed on their peculiar facts and have no bearing on the facts of the present cases. In both of them Rule 4 of the Rajasthan Panchayat Election Rules, 1954, had not been complied with and the elections were quashed on the said ground. This rule is quoted verbatim at page 389, of the report of the later ruling of the Rajasthan High Court, namely, Anokhmal Bhurelal Vs. Chief Panchayat Officer, Rajasthan, Jaipur and Others, and is in the following terms:

The Returning Officer shall, at least seven days before the date of election, announce for the information of the Panchayat Circle by notice and in such other manner as the Chief Panchayat Officer may direct the number and names of wards, if any, the number of panches to be elected from each ward and from the entire Panchayat Circle and the date, time and place of election.

The publication contemplated by this rule was held to be of a mandatory nature probably because unless the wards and the number of Panches were known to the electors of the respective Panches it would not be possible for the said electors to exercise their votes. Each elector could exercise his vote only in the ward in which he was registered as an elector and if the wards themselves were not known, it could not be possible for the electors to know where they had been enrolled as electors and where they had to vote. The Division Benches in the two cases of Rajasthan have not laid down any inflexible rule of law that every non-compliance with any rule would have the effect of rendering the election altogether void, and we cannot possibly agree that this could be the position. There is nothing in the present case to show that the programme was not actually published before the 18th November, 1960 and it may be that the patwari made a note about the publication in the roznamcha of the 18th November, but the programme was otherwise published in the various other manners much before that date and even before the 15th November. Assuming, however, that the publication was for the first time made on the 18th November and not before, it has not been shown to us how and to what ex- tent the Petitioners were prejudiced by the late publication. The elections to the Gram Panchayats in this State are yet in their infancy and some sort of errors of procedure are bound to creep in here or there. Section 8 of the Punjab Gram Panchayat Act, 1952, which provides for an election petition being filed against any election, specifically provides in Sub-section (2) (a) that an election can be set aside only if the authority hearing the election petition comes to the conclusion that a failure of justice has occurred. The Legislature clearly seems to have intended that the election of a Panchayat should not be set aside merely because of a technical mistake here or there which may not have materially affected the result of the election, or which may have caused no injustice to anyone. Sub-section (2) of Section 8 reads as under:

(2) The prescribed authority may--

(a) if it finds, after such inquiry as it may deem necessary, that a failure of justice has occurred, set aside the said election, "and a fresh election shall thereupon be held;

(b) if it finds that the petition is false, frivolous, or vexatious, dismiss the petition and order the security to be forfeited in the manner prescribed.

If the clients of Mr. Sarin or other Petitioners had made a petition u/s 8 of the Act, there is no doubt that, in the circumstances of the present case, the said petition would have been dismissed on the short ground that no failure of justice was proved to have occurred, and this position is not controverted by Mr. Sarin. His case is that on an application under Article 226 of the Constitution the said election must all the same be set aside because it is proved that there was non-compliance with the provisions of the election rules. We do not think that the extraordinary remedies provided by Article 226 of the Constitution of India were possibly meant for the purpose for which Mr. Sarin wishes them to be used. A Full Bench of this Court in Dev Parkash Gupta v. Bobu Ram etc. L.P.A. No. 273 of 1960 Since reported as ILR (1961) 2 P&H 880 had recently an occasion to pronounce upon the validity of the municipal elections of Nuh Municipal Committee. There was in that case some technical mistake so far as the lectoral rolls for the said election were concerned. Dulat, J., who delivered the main judgment observed in the last paragraph of the same as under:

An election is in its nature an expensive and time-consuming process, and, if it is to be disturbed after the whole process has been gone through, there must be shown to have existed "some material circumstance touching the substance of the election and not merely a technical breach of a technical rule. Everybody, of course, agrees that, if the very foundation of the election, namely, the electoral roll is illegal, no election on its basis can proceed or be allowed to stand, but that does not mean that any kind of defect in the roll, however technical in its nature, will suffice to reach such a conclusion. In the present case, the defect suggested is not, in my opinion, of substance, and, as far as I can see, the rules have been substantially complied with. I am, in the circumstances, not persuaded that the election to the Municipal Committee needs to be set aside.

While agreeing with the judgment of Dulat, J., Khosla, C.J., who wrote his own judgment also, observed in the same as under:

Justice and legal propriety should not, on any account, be sacrificed to expediency, but where there is no allegation of any injustice or injury following a lapse from the strictly technical and literal compliance with rules, this Court should not take upon itself the odious and wholly unnecessary task of undoing something that has involved a great deal of expense and effort. The Petitioners have not anywhere averred that they were deprived of their right of voting in the elections because of any irregularity committed in the course of preparing the electoral rolls, nor was it stated in the petition that any person not "possessed of a voter''s qualifications was wrongly included in the lists of voters and by exercising a non-existing right he helped to bring about a result other than would, in law, have followed.

I trust I shall not be charged with being outrageously presumptuous if I say that the time has come to remember and redeclare in unequivocal terms that the function of a Court of law is to decide actual cases and to right actual wrongs and not to exercise the mind by indulging in unrewarding academic casuistry or in pursuing the useless aim of jousting with windmills. If a Petitioner comes to Court and says that a certain authority has not observed, in letter, certain directions lawfully issued, but makes no allegation of any injury caused to anyone, nor does he say that any untoward consequences have resulted from the failure to comply with those directions, the Court should and ought to say at once that since there is no injury, there is no available remedy.

We respectfully agree with the aforesaid observations of Dulat J., and Khosla C.J., and are of the definite opinion that these observations apply with much greater force to the facts of the present case. We have already pointed out above that it has not been brought to our notice in any of the cases now before us that any real prejudice was caused to any of the Petitioners by the non-observance of the provisions of Rule 3 of the Gram Panchayat Election Rules. All that the Petitioners have been able to establish is that in some of the cases the procedure prescribed in Rule 3 of the Election Rules was not strictly complied with. This is, however, nothing more than a technical breach of a somewhat technical rule. This Court will in its discretion under Article 226 of the Constitution be slow to quash an election on a ground on which it could not be quashed even in a regular election petition. Moreover, the Petitioners have failed to take their ordinary remedies by way of an election petition and there does not appear to be any good reason why this Court should interfere in exercise of its extraordinary powers under Article 226 of the Constitution of India.

Mr. Sarin next contends that Rule 48 enabling the Deputy Commissioner to delegate his functions to other officers is ultra vires inasmuch as the Act itself does not give any power to the Government to frame such a rule. This contention is also devoid of force. Sub-section (1) of Section 101 of the Punjab Gram Panchayat Act gives a general power to the Government to make rules consistent with the Act and to carry out the purposes thereof. Clause (c) of Sub-section (2) of the said section specifically confers powers on the Government to frame rules regulating the procedure of election. We have no doubt that the rule enabling a procedure to be prescribed for election necessarily enables the Government to provide for persons who will deal with the said election. The persons so authorised may be asked to perform the functions themselves or through their delegates. Rule 48 provides for a part of the procedure for the election and is not, therefore, in any way, ultra vires. In any case, this rule could have been enacted under Sub-section (1) of Section 101 of the Act.

A half-hearted attempt was made by Mr. H. L. Sibal who appeared in Civil Writ No. 1748 of 1960 to show that the Panchayat election in that case was bad for reasons given in paragraph 9 of the said petition. The facts given in that paragraph are, however, denied by the State, and in these proceedings we cannot undertake to adjudicate on the facts.

No other point was raised by the learned Counsel appearing in the various other petitions, and it was conceded that the only points arising in other petitions were those which have been dealt with above.

In the result, the petitions fail and are dismissed. In the peculiar circumstances of the case, however, we leave the parties to bear their own costs in each case.

Tek Chand, J.

I agree.