Palat Sahni and Another vs Ram Padarath Singh and Others

Birendra Prasad Sinha, J.—By this application under Articles 226 and 227 of the Conslitution of India, the entire election of Dandari Grain Panchayat in the district of Begusarai has been challenged. Respondents 1 to 10 were elected to various offices of the Gram Panhayat on 28-5-1978.

The only point, which has been urged by Mr. K. P. Verma, learned counsel : ap-pearing on behalf of the petitioners, is that Rule 31 of the Bihar Panchayat Election Rules. 1959, (hereinafter to be referred to as ''the Rules'') is ultra vires Article 14 of the Constitution and any election held on the basis of the polling stations selected under Rule 31 must be held to be illegal and without jurisdiction. Tt has been stated that for four wards of the Panchayat only two booths were selected and no opportunity was given to the voters and the candidates to file any objection in the matter of selection of bootlis.

Rule 31 of the Rules reads as under :--"(1) The Election Officer, and not an officer to whom he delegates his powers under Clause (g) of Rule 2 shall select one or more polling stations, as may be considered by him. for each Panchayat and shall obtain the approval of the District Magistrate thereon. Once approved, the polling stations shall not be changed. The Election Officer shall publish the list of the polling station on his own notice board as also on that of the panchayat at least two weeks before the. date of actual poll.

The Election Officer shall, in writing appoint a Presiding Officer and such number of Polling Officers to assist the Presiding Officer as he thinks necessary."

According to this, the Subdivisional Officer, who is the Election Officer under the Rules and not his delegate, is required to select one or more polling stations as may be considered necessary by him. The list is thereafter sent to the District Magistrate for approval. After it is approved by the District Magistrate it becomes final and is finally published on the notice board of the Flection Officer and the Panchayat. The conteniion of Mr. Verma is that in a democratic State wherever right of a voter is affected, he should be given an opportunity of raising an objection. In support of his argument learned counsel relied upon a Bench decision of this Court in Umakant Singh and Others Vs. Binda Choudhary and Others, . In that case the question was whether Rule 3 of the Bihar Panchayat Samities and Zilla Parishad (Elections, Co-options and Election Petitions) Rules, 1963. was constitutionally valid. According to the Rules, the whole and sole basis of a person being elector for the purposes of the said election was the list of Secretaries obtained by the Returning Officer from the Assistant Registrar, Co-operative Societies. No procedure was prescribed for filing of any objection before any authority for the purpose of challenging the correctness of the list supplied by the Assistant Registrar, in respect of which various kinds of disputes could and did crop up. The disputes could be whether a particular Co-perative Society and its Secretary were included in the list or not; whether the person as the Secretary of the particular Co-operative Society was the Secretary or not or whether somebody else was its Secretary. No manner and forum were prescribed for the raising of any kind of dispute, which was bound to creep in in regard to the list of electors. Relying upon a decision of the Supreme Court in the case of the Chief Commissioner, Ajmer Vs. Radhey Shyam Dani, it was argued that Rule 3 of the Rules was defective and invalid. In the case of the Chief Commissioner of Ajmer (Supra) the Supreme Court held that it was the essence of the 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 scruticise whether the persons enrolled as electors pos-sensed the requisite qualifications. Unless that was done the obligafion cast upon the authorities was not discharged and the elections held an such imperfect electoral rolls were invalid.

I do not understand how these cases are applicable to the present case. A person residing in an area of a Gram Panchayat has surely right to become an elector. The rules provide that if his name is not included is the electoral roll he may file objection before the, prescribed authorities but after becoming a voter there is no such right that the elector must have a particular place or a booth of his choice. A right to vote and a right to vote at a particular place are two different things. The former is a substantive and statutory right whereas the latter is a question of convenience and it does not confer a rights on a voter. It is true that convenience of the voters must be taken into consideration by the authorities empowered to select the polltog booths. For that purpose, I think, suffi-cient safeguards have been given in Rule 31 itself. It is not a delegate Election Offices but the Subdivisional Officer himself who is required to select the polling booths. The matter does not become final there. That list goes for scrutiny before the District Magistrate and the District Magistrate is required to approve that list. When the District Magistrate is required to approve the list submitted by the Sub-divisional Officer, it implies that the District Magistrate will apply his mind and also may fake into consideration any objection or suggestion placed before him. The function of the District Magistrate is not in the nature of judicial or quasi judicial function but before approving the list he has to apply his mind. This, is my opinion, is sufficient safeguard so far as the convenience of the voters of a Gram Panchayat are concerned, but, as I have said above, it cannot be the (sic) right to vote at a particular booth of his choice. His right is to become an (sic) and to exercise his franchise. If in the matter of exercising the franchise there is any ob-struction from any quarter that will again become a question of fact which cannot be decided in a writ application. That question will have to be pleaded and proved in appropriate proceeding to show that the result of the election has been materially affected on account of such obstruction of interference.

Having given my anxious consideration to the facts of this case and the questions raised by learned counsel appearing for the petitioner I do not find any merit in this application. This application, accordingly, fails and is dismissed with costs. Hearing fee Rs. 100/-.