KAUSHALYA DEVI AND ORS. Vs. THE BLOCK DEVELOPMENT OFFICER AND ORS.

JUDGEMENT

(1.) In this writ application under Articles 226 and 227 of the Constitution of India, the election of the office -bearers of Bajidpur Gram Panchayat has been challenged. The polling for the election took place on the 5th November, 1969. In the election, respondent no. 3 has been declared Sarpanch; respondent no. 4 has been declared Mukhiya; respondents 5 and 6 have been declared elected as executive members; and respondents 7 and 8 have been elected as Panches of the aforesaid Gram Panchayat. The only point that was urged at the time of hearing of this petition was that although the names of petitioners 1 to 4 find place in the Assembly Constituency roll for the time being in force, they were not allowed to cast their votes by the Block Development Officer (respondent no. 1) who was in charge of the election. It was further alleged that 130 voters including the four petitioners had not been allotted to any ward of the Panchayat as voters. Some more points were also raised in the petition, but they were not pressed in view of the counter -affidavit filed on behalf of the Block Development Officer (respondent no. 1).

(2.) It is stated in the petition that there were 2710 voters in respect of village Bajidpur. Out of them, serial nos. 2581 to 2710 including the first four petitioners were not included in any ward of the Gram Panchayat. As such, they were not allowed to participate in the election. Therefore, it was submitted that the whole election is vitiated. According to Rule 4 of the Bihar Panchayat Elections Rules, 1959, hereinafter called 'the Rules', "for the purpose of holding election to a Panchayat, the area comprised within its jurisdiction shall, subject to the approval of the Elections Officer, be divided into four parts consisting of contiguous areas, each part being called a ward"; and Rule 5(1) provides that "So much of the electoral roll or rolls of an Assembly Constituency of the State of Bihar, for the time being in force, as relates to the areas comprised within the local limits of the jurisdiction of a Panchayat, shall be deemed to be the voters' list for the Panchayat for the purpose of election of Mukhiya and Sarpanch and so much of the said, electoral roll or rolls as appertain to a particular ward, constituted under Rule 4 of these rules, shall be deemed to be the voters' list of that particular ward for the purpose of election of Panch and member of the Executive Committee from the ward concerned". Sub -rule (2) of Rule 5 lays down that "No person other than the person whose name is included in the voters' list referred to in Sub -rule (1) shall have the right to Vote". It appears that 130 voters whose names were included in the voters' list for the Panchayat for the purpose of election were not included in the ward list of the voters, and, as such, they were debarred from exercising their franchise. In the counter -affidavit filed on behalf of the Block Development Officer (respondent no. 1), it is admitted that at the time of ward division while tagging a particular number of voters with a particular ward, the aforesaid 130 voters got omitted in the ward division. The ward division was prepared by the Panchayat Sewak in consultation with the sitting Mukhiya petitioner no. 5. It is alleged that the aforesaid sitting Mukhiya got the names of the said 130 voters omitted knowingly with an intention behind it. At the time of approval given by the Elections Officer, the omission of the aforesaid 130 voters could not be detected and consequently the aforesaid 130 voters could not be tagged with any of the polling stations. It is further stated in the counter -affidavit that it cannot be said as to the aforesaid 130 voters visiting the polling station for casting votes and whether they have cast their votes.

(3.) It is provided in the Bihar Panchayat Raj Act, 1947, hereinafter referred to as 'the Act', that "for every Gram Panchayat the Government may appoint a Panchayat Sevak who shall be in charge of the office of the Gram Panchayat and be responsible for the preparation of a programme of schemes and works to be executed under this Act during a particular year" vide Sec. 77 of the Act. Sec. 9 of the Act provides that "the executive functions of the 'Gram Panchayat' shall be performed by an Executive Committee of which the head shall be known as the Mukhiya." The division of the Panchayat into wards and assignment of voters on the basis of the electoral roll or rolls of an Assembly Constituency as relates to that area are the functions to be performed by the Elections Officer. The Elections Officer is also required to publish the election programme on the eve of each general election or bye -election, according to Rule 17. As admitted in the counter -affidavit, the ward division, as prepared by the Panchayat Sevak, was placed for approval before the Elections Officer, but the omission was not detected. The mistake committed in the preparation of the ward division has rendered the entire election illegal. In the present case, the electoral roll on the basis of which the election was held was an improper one inasmuch as the names of 130 persons had been excluded from the list of voters at the time of ward division, and these persons were deprived of their right to vote without there being any amendment or revision of the relevant electoral roll for the State Assembly. In my opinion, the entire election becomes vitiated on account of some of the persons lawfully entitled to cast their votes having been illegally deprived of such right.