Mohammad Sadiq vs State

P.V. Dixit, C.J.—This is an application under Articles 226 and 227 of the Constitution of India for the issue of suitable writs or directions restraining the Respondents from holding a bye-election in village Majitha, Tahsil Patan, under the Central Provices and Berar Panchayats Act, 1946 (hereinafter referred to as the Act), on the basis of an electoral roll as prepared for Rampura ward said to be defective and imperfect, and directing the Respondents Nos. 2 and 3 to prepare a valid electoral roll for the aforesaid ward and to hold thereafter the bye-election according to a programme of election drawn in accordance with the provisions of the Act and the rules made thereunder.

The Gram Panchayat of Majitha, Tahsil Patan, is a body constituted under the Act, Section 8 of which provides that the Panchas of a Gram Panchayat shall, in accordance with the rules made under the Act, be elected from amongst the persons whose names are entered on the electoral rolls of the Gram Panchayat area. On the resignation of two of the Panchas representing Patel and Rampura wards of the said village, a bye-election to fill the vacancies has to be held as required by Section 24. Accordingly, electoral rolls for the wards purporting to have been prepared in accordance with the rules made under the Act were prepared and a programme for holding a bye-election on the basis of those rolls was published. The Petitioners'' contention is that the electoral roll for the Rampura ward is not valid for the reason that after the publication of the roll under Rule 1 of the Rules regulating the publication of electoral rolls u/s 10(1), (2) and (3) of the Act the Tahsildar, who had been appointed to hear claims and objections under Rule 3 of the said rules, did not decide the claims and objections preferred as required by Rule 5; that this failure-deprived the applicants of an opportunity to substantiate their objection to the inclusion of names of ten persons in the roll who had no residence in the ward and who were, therefore, not qualified to be included in the electoral roll; and that the total number of voters in the ward being 49, the illegal inclusion of the ten voters altogether impaired the validity of the roll. The further objection of the Petitioners is that under Rule 1 of the Rules regulating nominations for elections u/s 8, the date and place for the filing of nomination paper of candidates and for the scrutiny of nomination papers and date or dates of polling have to be announced within the Gram Panchayat area at least seven days before the date fixed for filing the nomination papers; that according to the programme drawn up by the Respondents Nos. 2 and 3 the date fixed for the filing of nomination papers was 25th August 1962 and the announcement was made by beat of drum on 18th August 1962; that thus there was no interval of "at least seven days" between the date of announcement and the date fixed for filing the nomination papers; and that this violation of the mandatory provision contained in the aforesaid rule rendered all the nominations illegal and void.

In our judgment, this application must be granted. The preparation and publication of electoral rolls is regulated by Section 10 of the Act and the Rules regulating the publishing of electoral rolls u/s 10(1), (2) and (3). Section 10 requires that an electoral roll shall be drawn up and published for each ward in the prescribed manner and every application for or against the inclusion of any name in the roll shall be made in such manner and to such revenue officer as may be prescribed, and his decision shall be final. Section 11 (2) states the disqualifications for the inclusion of name of any person in the electoral roll. Rules 1 to 5 of the Rules regulating the publishing of electoral rolls u/s 10(2) and (3) are as follows-

On or before a date to be fixed by the Deputy Commissioner, the patwari or patwaries in whose circle the Gram Panchayat area lies shall cause to be proclaimed by beat of drum in the Gram Panchayat area the fact that the electoral roll of a ward is ready for inspection.

A copy of the electoral roll shall be kept for inspection in a conspicuous place such as chaodi or gadi in the ward to which the electoral roll pertains.

A notice shall be affixed to the electoral roll stating the date, time and place fixed for hearing claims and objection and specifying the officer before whom such claims and objections shall be preferred. The date to be so fixed shall not be earlier than seven days from the publication of the said notice.

On the date fixed for hearing claims and objections aforesaid any person whose name is not entered in the roll and any person whose name is in the roll, and who objects to the inclusion of the name of any person in the roll, may prefer either orally or in writing, a claim or objection to the officer specified in the notice.

The officer appointed to hear claims and objections under Rule 3 shall decide the claim or objection on the spot and shall-

(i) record his decision; and

(ii) correct the copy of the roll in accordance with such decision.

The decision of the said officer shall be final.

It will be seen from rules 1 and 2 that when an electoral roll is prepared and exhibited for inspection, objections can be filed to the enrolment of particular persons as electors or to the deletion of the names of some persons from the electoral roll. According to Rule 4, these objections can be preferred either orally or in writing to the specified officer only on the date fixed for the hearing of claims and objections and not before. Under Rule 5, the officer appointed to hear claims and objections is required to decide the claim or objection "on the spot" and to record his decision and correct the copy of the roll in accordance with his decision.

In the present case, the Tahsildar who had been appointed as the officer for hearing claims and objections to the electoral roll admittedly heard the claims and objections at Patan and not at a place in Rampura ward, the electoral roll of which was to be published finally after the disposal of claims and objections to the roll. It was argued by Shri Sen, learned Counsel for the Petitioners, that the words "on the spot" used in the aforesaid Rule 5 implied that the officer appointed to hear claims and objections had to entertain and decide them at a place in that ward the electoral roll of which had to be finalised. It was said that this requirement was laid down for enabling the officer appointed to hear claims and objections to decide them expeditiously and by personal investigation in the ward. On the other hand, learned Government Advocate urged that the rules regulating the publishing of electoral rolls u/s 10 nowhere made it obligatory for the officer appointed to hear claims and objections to entertain and decide them at a place in the ward concerned itself: that the officer could fix any place for the hearing of claims and objections; and that Rule 5, when it said that the officer should decide the claim or objection on the spot, meant that he should decide them immediately after they were preferred.

In our view, the meaning sought to be put on the words "on the spot", occurring in Rule 5, by the learned Government Advocate, cannot be accepted. It must be confessed that the meaning of the words "on the spot" as used in Rule 5 is not clear and free from any doubt. As used in Rule 5 in relation to the decision on a claim or objection, they can either mean that the claim or objection must be decided on the spot where it has been preferred or that it must be decided immediately after it is made. Now, it is well established that the words of a statute or a statutory rule, when there is doubt about their meaning, are to be understood in the sense in which "they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained (Maxwell on Interpretation of Statute. 10th edn., p. 52). It is further observed by Maxwell, at page 63-

It is said to be the duty of the judge to make such construction of a statute as shall suppress the mischief and advance the remedy. Even where the usual meaning of the language falls short of the whole object of the legislature, a more extended meaning may be attributed to the words, if they are fairly susceptible of it.

It is, therefore, necessary to consider the scope and object of the rules regulating the publishing of electoral rolls u/s 10. That object is clearly to secure that a proper electoral roll should be maintained. In order to carry out this object, it is necessary to give an opportunity to the parties concerned to scrutinize the provisional electoral roll and to see whether persons enrolled as electors possess the requisite qualifications and whether persons who have the necessary qualifications have or have not been enrolled. Unless and until this opportunity is given and the claims and objections to the provisional electoral roll are adjudicated upon, a proper and perfect electoral roll cannot be prepared. The rules framed for regulating the publishing of electoral rolls u/s 10 aim at the finalisation of the electoral roll with expedition. As under Rule 4 the claims or objections to an electoral can be preferred before the specified officer only on the date fixed for their hearing, it is obvious that no notice of such claims and objections can be given to the parties opposing the claims and objections before they are heard and adjudicated upon. To illustrate, a person, whose inclusion in the electoral roll has been objected to on the ground that he is not qualified to be an elector, is vitally interested in opposing the objection. He can have no notice of this objection before, it is preferred and if, as the learned Government Advocate contended, the objection has to be decided immediately after it is preferred, then the adjudication of the objection can be only ex-parte. The disposal of an objection without giving an opportunity of hearing to the person vitally concerned in opposing it would be utterly contrary to the principles of natural justice. The rules clearly do not contemplate that officer appointed to hear claims and objections should give ex-parte decisions on them. Indeed, the disposal of claims and objections to the provisional electoral roll in ex-parte manner, without hearing all the parties concerned, would altogether defeat the purpose of the rules and would not make the provisional electoral roll any more perfect than it was before the claims and objections to it are made and adjudicated upon. If, therefore, the words "on the spot" are understood in the sense of requiring the officer appointed to bear the claims and objections to decide them immediately after they are made, that meaning will not be in harmony with the subject and object of the rules. Having regard to the object south to be attained by the rules, the words "on the spot" must be taken as meaning that the officer appointed to hear claims and objections must entertain and decide them at a place in the ward the electoral roll of which is under revision before finalisation. If the words "on the spot" are so read, then the object of having the claims and objections decided expeditiously by the specified officer by personal investigation in the ward itself as regards the tenability or un-tenability of the claims and objections is fully attained. Here, the Petitioners objected to the inclusion of the names often persons in the electoral roll on the ground that they did not fulfill the residential qualification. The persons, whose inclusion had been objected to, were entitled to be heard. But as the Tahsildar heard the objections preferred and decided then forthwith at Patan, a place quite far from Rampura ward, the Petitioners did not get an opportunity of substantiating their objections and the persons whose inclusion had been objected to also, had no opportunity to oppose the objection raised by the Petitioners. In our opinion, under the rules regulating the publishing of electoral rolls u/s 10, it is obligatory for the officer appointed to hear claims and objections to entertain and decide them at a plate in the ward to which the electoral roll relates. This was not done in the present case, and consequently the electoral roll prepared by the opponents Nos. 2 and 3 can have no validity. In this connection, it would be pertinent to refer to the observations of the Supreme Court in Chief Commr. Chief Commissioner, Ajmer Vs. Radhey Shyam Dani, with regard to the importance of maintaining proper and perfect electoral rolls. In that case, it has been said-

It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned.

These observations were no doubt made in connection with an election to the Ajmer Municipal Committee under the Ajmer Merwara Municipalities Regulation, 1925, and the Election Rules made thereunder. But they apply with equal force to the preparation of electoral rolls under the C. P. and Berar Panchayats Act, 1946, and the rules thereunder.

As the holding of the election was stayed by us till the disposal of this petition and no election was consequently held, and as a fresh programme will now have to be issued for the holding of a bye-election, the objection with regard to the statutory interval of "at least seven days" between the date of announcement and the date fixed for filing nomination papers has lost all its importance. But it must be said that under Rule 1 of the Rules regulating nominations for elections u/s 8, there must be "at least seven days" interval between the announcement of the election programme and the date for filing of the nomination papers. This mandatory requirement was clearly not carried out when the opponents announced the election programme on 18th August 1962 and fixed 25th August 1962 as the date for filing the nomination papers. In computation of the period of "at least seven days" the two terminal days must be excluded (See AIR 1955 35 (Nagpur) .

For the foregoing reasons, this petition is allowed, and the Respondents are restrained from holding the bye-election on the basis of the electoral roll as at present prepared. The Respondents are directed to prepare a valid electoral roll for the ward where the bye-election is to be hold, in accordance with the rules regulating the publishing of electoral rolls u/s 10 as explained above, and to hold a bye-election thereafter after drawing up an election programme in accordance with the relevant rules. In the circumstances of the case, we make no order as to costs. The outstanding amount of security deposit shall be refunded to the Petitioners.