M.S. Shah, J.
1. Leave to add Siraj Mohammad Patel as respondent No. 5. Rule returnable forthwith.
Mr. Anjaria for the State Election Commission (respondent No. 4), Ms. Trusha Patel, learned AGP for respondent Nos. 1 to 3 and Mr. Vaghela for Mr. Siraj Mohammad Patel (who is permitted to be joined as respondent No. 5 and who is one of the contesting candidates) wa4ve service of Rule for the respective parties.
2. Elections to Sanjali Gram Pachayat were required to be held before 17-1-2007. The elections were not held and, therefore, this Court had to issue a writ of mandamus following the decision of the Apex Court in Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad : AIR2007SC269 . By our order dated 11-5-2007, we directed the authorities to hold elections to Sanjali Gram Panchayat at the earliest and in any case before 30-6-2007. We allowed the petition in terms of the following directions:
3. In view of the aforesaid decision, we direct the respondents to hold elections to Sanjali Gram Panehayat, Ankileshwar Taluka, Bharuch District at the earliest and in any case before 30-6-2007. In the meantime, the authorities shall consider the petitioner's representations objecting to deletion of certain names from the voters list, more particularly, in view of the law laid down in the said decision that the. election has to be held on the basis of the electoral rolls which are in force and the elections cannot be withheld on the ground that certain claims and objections are not finally disposed of while preparing the electoral rolls or even assuming that they are not found in accordance with law.
On 17-5-2007, the State Election Commission declared the election program and 17-6-2007 is the date of polling.
3. After the aforesaid order, the petitioner apprehended that the list of 2106 voters published on 20-10-2006 was sought to be curtailed substantially by deleting 597 names and, therefore, the petitioner filed Misc. Civil Application No. 1387 of 2007 during the summer vacation praying that the elections be directed to be held on the basis of the last published list of voters i.e. the list published by the State Election Commission on 20-10-2006. At the hearing of the said application, the learned AGP placed on record a copy of order No. 1121 dated 25-5-2007 of the Collector, Valsad clearly stating that the elections shall be held on the basis of the list of voters published on 20-10-2006. The petitioner was accordingly permitted to withdraw the Misc. Civil Application as the grievance in the application did not survive in view of the Collector's order dated 25-5-2007.
4. The present application has thereafter been filed on the ground that notwithstanding the statutory provisions and the previous order dated 25-5-2007 of the Collector, on the basis of which the applicant withdrew Misc. Civil Application No. 1387 of 2007, the Mamlaldar. Bharuch has passed an order on 1-6-2007 purporting to delete as many as 597 persons from the list of voters published by the Election Commission on 20-10-2006. It is submitted that deletion is purportedly made on the ground that 597 persons in question are bogus voters. It is submitted that no notices were issued to any of them. The petitioner has also produced xerox copies of the election cards issued in favour of some of the voters included in the list dated 20-10-2006 in order to substantiate the case that the deletion is ordered without following the principles of natural justice and without application of mind.
5. The relevant provisions of the Gujarat Panchayats Act, 1993 are as under:
13. Duration of Panchayats and their reconstitution. - (1) Every Panehayat, unless sooner dissolved under this Act shall continue for five years from the date appointed for its meeting and no longer.
(2) An election to constitute a panehayat shall be complete-
(a) before the expiry of its duration specified in Sub-section (1);
(b) before the expiration of a period of six months from the date of its dissolution:
17. List of voters for every electoral divisions. - For every electoral division, there shall be a list of voters which shall be prepared and maintained in accordance with the provisions of Sections 18 to 22 under the Superintendence, direction and control of the State Election Commission.
18. Preparation of list of voters. - At a time opt later than two mopths before the. expiry of the duration of a panehayat under Section 13. and in the case of a panehayat which is to be constituted or reconstituted under the provisions of this Act otherwise than on the expiry of its duration under Section 13 at any such time as the State Election Commission may after consulting the State Government determine, there shall election of members for constituting or, as division In respect of such panehayat as determined under Section 16 and in force at the time when such list is prepared.
19. Persons qualified to be registered as voters. - Every person who is entitled to be registered in the relevant part of the electoral roll of the Gujarat Legislative Assembly under the Central Act shall be entitled to be registered as a voter in the list of voters for the electoral division, to be prepared under Section 18.
20. List of voters. - (1) The electoral roll of the Gujarat Legislative Assembly prepared under the provisions of the Central Act, for the time being in force for such part of the constituency of the Assembly as included in the relevant electoral division, shall, subject to any amendment, deletion or addition made under Sub-section (3) or any inclusion of any name under Sub-section (5), be the list of voters for that electoral division.
(2) Such officer of the State Government as the State Election Commission may specify in this behalf (hereinafter referred to as 'the specified officer') shall, subject to Superintendence, direction arid control of the commission, maintain a list of voters for each electoral division, the list shall be published in the prescribed manner.
(3) If on an application made to him in this behalf or on his own motion the specified officer is satisfied that the list of voters is at variance with the relevant part of the electoral roll of the Gujarat Legislative Assembly on account of any mistake in the list, he shall amend the list so as to bring it in conformity with the said electoral roll and for that purpose may amend, delete or add any entry in that list.
(4) Any person who has become entitled to be registered in the relevant part of the electoral roll of the Gujarat Legislative Assembly under the Central Act, after the qualifying date may apply to the specified officer for inclusion of his name in this list.
(5) Where the specified officer after making such inquiry as he may consider necessary, is satisfied that the applicant is entitled to be registered in the relevant part of the electoral roll of the Gujarat Legislative Assembly under the Central Act, he shall direct the name of the applicant to be included in the list of voters:
Provided that no such direction shall be given if the applicant is disqualified to vote under this Act or any other law for the time being in force.
(6) No amendment, deletion or addition of any entry in the list of voters for an electoral division shall be made under Sub-section (3) and no direction for inclusion of a name in that list shall be given under Sub-section (5) during the period between such date as the State Election Commission may, by general or special order, notify in this behalf and the date of the completion of any concerned election in the electoral division.
Explanation : In this section the expression 'qualifying date' has the same meaning as in Clause (b) of Section 14 of the Central Act.
(7) The list of voters shall after it is finally prepared under this section be published in the prescribed manner and shall come into operation immediately upon its final publication.
Section 14(b) of the Central Act i.e. Representation of People Act reads as under:
(b) 'qualifying date', in relation to the preparation or revision of every electoral roll under this Part, means the 1st day of January of the year in which it is so prepared or revised:
6. The relevant part of Section 22 of the ROP Act, 1950 provides that if the electoral registration officer for a constituency, on application made to him or on his own motion, is satisfied after such inquiry as he thinks fit, that any entry in the electoral roll of the constituency, should be deleted on the ground that the person concerned has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll, the electoral registration officer shall, subject to such general or special direction, if any, as may be given by the Election Commission in this behalf, delete the entry, provided that before taking any action under Clause (c) on the ground the person concerned has ceased to be ordinarily resident in the constituency or that he is otherwise not entitled to be registered in the electoral roll of that constituency, the electoral registration officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him.
7. Having heard the learned advocates for the parties and having examined the provisions of the Gujarat Panchayats Act, 1993 (hereinafter referred to as 'the Act' or 'the Panchayats Act') including the provisions of Chapter III relating to Election of Members of Panchayats, election disputes etc. and particularly Section 20 thereof pertaining to amendment to list of voters and also having examined the provisions of Sections 21 and 22 of the Representation of the People Act, 1950 (hereinafter referred to as 'the ROP Act, 1950'), it appears that the list of voters for elections to Panchayats have to be based on the list of voters prepared and published for elections to the Gujarat Legislative Assembly. The amendment to the list of voters for the purpose of deleting the names of persons already included in the electoral roll published for elections to the State Legislative Assembly can be entertained on the ground that the list in question is at variance with the list of voters published for State Legislative Assembly elections. It is further clear that the names of persons already included in the electoral roll for such part of the constituency as is included in the relevant electoral division cannot be deleted under Sub-section (3) or Sub-section (6) of Section 20 of the Act without following the procedure prescribed in Section 22 of the ROP Act, 1950. The requirement prescribed by Section 22 of the ROP Act, 1950 is necessarily to be read into the provisions of Section 20 of the Panchayats Act.
There is no dispute about the fact that the electoral roll for that part of the constituency of the Gujarat Legislative Assembly as pertained to Sanjali Gram, was last published on 20-10-2006, which included names of 2102 persons including 597 persons against whom the newly added respondent No. 5 had raised an objection before Election Officer. It is not the case of any of the authorities that the procedure prescribed by Section 22 of the ROP Act, 1950 particularly issuance of individual notices to these 597 persons was followed by the Mamlatdar before passing the order dated 1-6-2007 purporting to undertake revision of the list of voters in purported exercise of the powers under Section 20 of the Panchayats Act.
8. At the hearing of this application, Ms. Trusha Patel, learned AGP for the State authorities has submitted that the Mamlatdar has taken the decision on 1-6-2007 to delete the 597 persons from the list of voters after making an on the spot inquiry through two Dy. Mamlatdars. However, the learned AGP is not in a position to dispute the assertion that the said decision has been taken without issuing individual notices to 597 persons.
9. In Election Commission of India v. Ashok Kumar : AIR2000SC2979 the Apex Court has laid down the following principles in paragraphs 28 and 32 of the judgment:
28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates, it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye of the controversies which have arisen nor assuming a role of overen-thusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.
32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:
1) If an election, (the term 'election' being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
2) Any decision sought and rendered will not amount to 'calling in question an election' if it subserves the progress of the election and facilitaties the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decision of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interruption, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention being made out by raising the pleas with particulars and precision and supporting the same by necessary material.
(Emphasis supplied)
10. In Pundlik v. State of Maharashtra, decided on 25-8-2005 and reported at : AIR2005SC3746 the Apex Court held that though preparation of list of voters is one of the stages of election and that normally the High Court would not interfere in exercise of powers under Article 226 of the Constitution at the stage of preparation of list of voters, but such action must be in accordance with law. In the said decision, the Apex Court distinguished their decision in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra : AIR2001SC3982 , in Shri Sant Sadguru's case objections against publication of provisional electoral roll of the Society were filed which were considered by the Collector and disposed of. The final electoral roll was published on 2-7-1999. Election program was drawn by him on 21-10-1999. Thereafter the petitioner filed a writ petition in the High Court for quashing the election program and the Apex Court held that the High Court should not stay continuation of the election process even though there may be some alleged irregularity or breach of the Rules while preparing the electoral roll. However, in the Pundlik case, the original petitioner had taken immediate action on receiving the fax message from the Collector.
11. In view of the legal position already discussed hereinabove and the undisputed fact that individual notices were not issued to such 597 persons and accordingly the procedure prescribed by Section 22 of the ROP Act, 1950 was not followed, after considering the principles laid down by the Apex Court in Election Commission of India v. Ashok Kumar : AIR2000SC2979 particularly paras 28 and 32 and in Pundlik's case (supra), we direct the authorities to hold elections to Sanjali Gram Panchayat as scheduled on 17th June, 2007 on the basis of the list of voters published on 20-10-2006.
Since the purported deletion was made on the ground that upon personal scrutiny by two Dy. Mamlatdars, names of bogus voters were required to be deleted, while implementing the above direction, it will be open to the authorities to require concerned voters to produce the proof of their identity.
12. This order is passed in presence of Mr. Anjaria for the State Election Commission and Ms. Trusha Patel, learned AGP for respondent Nos. 1 to 3.
13. The application is accordingly allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent.
Direct service is permitted.