Kotyal, J.
1. This is an application in which is challenged an order passed by the Civil Judge, Junior Division, Hinganghat, acting as a Court under Section 68 of the Bombay Village Panchayats Act, 1958 (Bombay Act No. III of 1959). Before the learned Civil Judge an election petition was filed challenging the election of the there petitioners: Faiju Mahadeo Chandekar, Rambhau Nago Urkande and, Govinda Krishnaji Mandlik. The petition was filed by tha respondent No. 6 before us, Vithoba Sadasheo Yende. The election was held for filling three seats of members of ward No, 2 of village Mandgaon in Hinganghat tahsil on 3-10-1961. The election programme had fixed 25-8-1961 as the last date for nominations and tha scrutiny of nominations took place on 26-8-1961. The elections were held on 3-10-1961 and the results of the elections were announced on 5-10-1961. The three petitioners received toe three highest numbers of votes, that is to say, the petitioner No. 2 Rambhau got 144 votes, the petitioner No. 1 Faiju got 143 votes and the petitioner No. 3 Gobinda got 141 votes. The respondent No. 6 Vithoba who moved the petition before the learned Civil Judge got 138 votes and the respondents Nos. 7 and 8, Shankar Govinda Sakode and Shankar Mukaji Hatwar, got 133 and 127 votes respectively.
2. In the Election petition, the election of the present petitioners was challenged upon several grounds most of which were negatived by the learned Civil Judge, but the learned Civil Judge upheld three main objections to their election and it is with those objections that the present petition is concerned.
3. The three objections upon which the election of the present petitioners was set aside were:
(i) that subsequent to the list of voters prepared for this village a supplementary list of 10 voters was sent to the Officer-in-charges of the elections under Rule 3 of the Bombay Village Panchayats Election Rules, 1959. That officer first accepted the list on 25-8-1961, but later rejected it. The learned Civil Judge held that the list was wrongly rejected; that the ten persons ought to have been allowed to cast their votes at the election. They had been deprived of their franchise and therefore the election was materially affected and ought to be set aside.
(ii) That three voters whoso names were not In the list of voters were allowed to vote. It appears that these threw voters bore the surname 'Parbat' whereas In the voters' list the- surname mentioned was 'Sakode'. The personal name and the father's name of each of the three 'voters was the same hut the difference was in the surname. These three voters were upon Inquiry allowed to vote by the election officer but the learned Civil Judge hold that they had been wrongly permitted to vote havingregard to the provisions of the Bombay Village Panchayats Act and the Election Rules.
(iii) That one voter Vithoba Govinda Sakode was not allowed to vote though he ought to have been allowed to vote, it appears that his name had been wrongly entered in toe voters' list for village Kora and was not included in village Mandgaon and therefore he was not allowed to vote. The learned Civil Judge held that he was eligible to vote from village Mandgaon and ought to have been permitted to vote and that on that ground also the election was liable to be set aside.
4. All these grounds have been challenged by Mr. Mandlekar on behalf of that petitioners and we will deal with each of the grounds in the order mentioned above.
5. Turning to the first ground on which the election was set aside, namely, that the voters' list of 10 voters was wrongly rejected and those ten voters not allowed to vote, the facts are as follows; The voters' list is at annexure 6-R/14. At the foot of this list is an endorsement by Mr. S. R. Rupade, the 'Niwadnook, Adhikari' (that is to say, the 'election officer' appointed under Rule 3(2) of ther Bombay Village Panchayats Election Rules to supervise elections) as follows:
'Copy -- Sar Pancha, Mandgaon. The above supplementary list of voters should ba, as per orders of the Tahsildar, added to the original list and be published.' Immediately succeeding this endorsement is an unsigned endorsement also made by Mr. Rupade. That endorsement is as follows: 'This supplementary list has been amended on 25-8-62, i.e., not before the date proceeding (sic.) (preceding) to the day for receiving remaining papers. Hence this list is not valid for the purpose of the election.'
At the head of the list is a further endorsement which was obviously made after the above two endorsements because it is dated 2-10-1961, it is also signed by Mr. S. R. Rupade. That endorsement is as follows:
'This list dated 25-8-61, has been prepared as supplementary list. Therefore, it will not be valid for election. This list Is not valid for election,'
6. Now, Mr. S.R. Rupade was not examined as a witness but the Sarpancha of the village to whom it was sent has been examined. He is Vithoba Sadasheo Yende (annexure 6-R/9). He has proved this supplementary list and has stated that it came to him on 25-8-1961 as endorsed by Mr. Rupade at the foot of the list. The Civil Judge has taken the view that Mr. Rupade having' once accepted this list by the first endorsement which we have quoted above had no authority subsequently to reject the list which was ordered to be published by, the Tahsildar. He has referred to Rules 13, 26, and 27 of the Registration of Electors Rubs, I960 (that is to say, the rules framed tinder the Representation of that People Act, 1951), and to R. 3(5) of the; Bombay Village Panchayats Election Rules, 1959. Unfortunately In dealing with this question, it seems to us that the learned Civil Judge omitted to notice the vital provisions of law upon which obviously the Nivadnook Adhikari Mr. Rupade appears to have relied and they are the provisions of Section 12 (1) read with Section 13 of the Bombay Village Panchayats Act. We have already indicated that in the endorsement at the foot of the list Mr. Rupade had given his reason as follows:
'This supplementary list has been amended on 25-8-61, i.e. not before the date preceding to the day for receiving remaining papers. Hence this list is not valid for the purpose or the- election.'
7. Now, this was the reason and It seems to us that if the election had to be set aside as the learned Civil Judge has set it aside, the reason given had to be met and answered, but there doss not appear to be any answer to this reasoning in the judgment of the learned Civil Judge. On the other band, it seems to us that this view which Mr. Rupade took was a perfectly correct view having regard to the provisions of Sees. 12 and 13 of the Act.
8. Section 12 runs as follows:
'12. (1) The electoral roll of the Bombay Legislative Assembly prepared under the provisions of the Representation of the People Act, 1950, and in force on such day as the State Government may by general or special order notify in this behalf for such part of the constituency of the Assembly as Is included in a ward or a village shall be the list of voters for such ward or village.
(2) An officer designated by the Collector In this behalf shall maintain a list of voters for each such ward or village.'
Section 13 provides:
'13. (1) Every person whose, name is In the list of voters shall, unless disqualified under this Act or any other law for the time being in force ba qualified to vote at the election of a member for the ward to which such list pertains.
(2) Every person whose name is in the list of voters shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected for any ward of the village. No person whose name is not entered in the list of voters for such village shall be qualified to be elected for any ward of the village.
(3) Subject to any disqualification incurred by a person, the list of voters shall be conclusive evidence for the purpose of determining under this section whether any person is qualified or is not qualified to vote, or as the case may be, is qualified or is not qualified to be elected, at any election.'
9. It is clear that under Sub-section (1) of Section 12 the electoral roll of the Bombay Legislative Assembly prepared under the provisions of the Representation of the People Act, 1951, is to be regarded as the list of voters for the ward or the village concerned. But this is subject to one qualification which has to be read in Sub-section (1) of Section 12 because of the words used In that Sub-section 'and it force on such day as the State Government may by general or special order notify in this behalf......', in other words, it is not the law that the electoral roll of the Bombay Legislative Assembly once prepared under the provisions of the Representation of the People Act, ipso facto becomes the list of voters for the ward or the village concerned at any ensuing panchayat election. It is that electoral roll of the Bombay Legislative Assembly which is in force on a certain selected date which alone becomes 'the list of voters' for the purposes of the panchayat elections. The date is to be fixed at the discretion of the State Government. In this case the date fixed was a, date prior to the date fixed for the nomination of candidates. The last date, would be thus 24-8-61.
10. The Legislature advisedly intended to fix a date up to which the electoral roil of the Bombay Legislative Assembly as prepared will operate as a list of voters for such ward or village, and we shall presently voters that this date was fixed with some definite object. The object is to be culled from the provisions of the rules made under the Bombay Village Panchayats Act read with the provisions of the Representation of the People Act and the Registration of Electors Rules, 1960, upon some provisions of which Mr. Junankar on behalf of the respondent No. 6 very strongly relied.
11. The provisions which were invoked by Mr. Junankar were Sections 21 and 23 of the Representation of the People Act, 1951, and Rules 26 and 30 of the Registration of Electors Rules, 1960. On the basis of these sections and rules it was argued by Mr. Junankar that there is no provision in the Representation of the People Act or in the rules that the electoral roll for the Bombay Legislative Assembly shall be the electoral roll In the case of assembly elections upto any specified data. What he urged was that the procedure provided for rectification and correction of the Assembly electoral roll is a procedure which is perenially in operation all the year round and which can continue up to any day and even upto the last moment of time before the election and there was no date fixed which, so to say, is a date before which alone the electrol roll must be corrected in order to be valid as an electoral roll for a particular election. It is unnecessary to examine whether that is the proper conclusion to be drawn from the provisions relied upon by Mr. Junankar because for the purposes of the point argued in this petition, it seems to us that even assuming that the conclusion for which Mr. Junankar contends is the correct conclusion, so far as Assembly-Electoral Rolls are concerned, still that would not ba the effect so far as the voting lists under the Bombay-Village Panchayats Act are concerned.
12. Assuming therefore that under the Representation of the People Act, the electoral roll can be corrected until the last moment of time before which the election takes place,, we cannot see how that procedure can be approximated to the case of elections under the Bombay Village Panchayats Act having regard to the special provisions of that Act. We have already discussed Section 12(1) and we there stressed that under that section a special date was fixed upto which date alone the electoral roll prepared for the Bombay Legislative Assembly could be corrected, and therefore, ft seems to us that whatever is the! list on the date mentioned under Section 12(1), must be the list of voters for the ward or the village and no corrections could be permitted thereafter.
13. On behalf of the State, the notification issued under Section 12 (1) was brought to our notice, tt I* notification No. VPA-1059 P, dated 6-6-1959, published in the Bombay Government Gazette, Part I-A Cen., dated 6-6-1959, page 114, and it says:
'No. VPA, 1059 P. dated 6-6-59. In exercise of the power conferred by Sub-section (1) of Section 12 of the Bombay Village Panchayats Act, 1958 (Bom. III of 1959); the Government of Bombay hereby notifies the day immediately preceding the date fixed for the nomination' of candidates under Rule 7 of the Bombay Village Panchayats Election Rules, 1959, to be the day for the purposes of Sub-section. (1) of the said Section 12'.
Having regard to this notification, It Is clear that the Government fixed the day preceding the day fixed for the nomination of candidates under Rule 7 as the day on which the Assembly electoral roll shall be regarded as the list of voters for the purposes of panchayat elections. Thus after the data preceding tha date of nominations has passed even though changes may take place in the Bombay legislative Assembly list still those changes cannot be taken into account for purposes of that election of the panchayat. It is clear to us that it was this provision of the law that Mr. Rupade had in mind when he passed the second order at the foot of the list and repeated it in his order dated 2-10-1961.
14. Mr. Junankar relied strongly upon the provisions of Rule 30 of the Registration of Electors Rules, 1960, and urged that tha rule makes specific provision for the rolls for local authorities' constituencies and that therefore these rules framed under a Parliamentary enactment ought to be given effect to, even assuming that Section 12 (1) of the Local Act provided to the contrary though, according to him, it does not provide anything to the contrary. In the first place, Rule 30 reads as under;
'30. Rolls for local authorities' constituencies.
(1) The roll for every local authorities' constituency shall be prepared and maintained In such form, manner and language or languages as the Election Commission may direct.
(2) The provisions of Rules 26 and 27 shall apply In relation to local authorities' constituencies as they apply in relation to assembly constituencies: * ************'
In our opinion, Rule 30 is Irrelevant in the present context. Rule 30 merely refers to one of the special constituencies to election of members from special constituencies constituencies to the Assemblies of the States and it can have no relevance or reference in tha context of Panchayat elections though the only words common to both are 'local authorities'. The expression 'local authority constituency' does not refer to elections to a panchayat constituency but to a special seat from which persons are elected to the assembly from among local authorities. It does not deal with local authorities but with local authorities' constituencies. We do not think that Rule 30 is at all attracted in the present case.
15. No doubt, the several provisions of the Representation of the People Act and of the rules framed thereunder make provision for tha preparation of the electoral rolls and In those provisions so far as Assembly and Parliamentary elections are concerned, there is no specific date fixed up to which alone electoral rolls may be corrected and the process of correction stopped thereafter. But in this respect, the Legislature In Its wisdom decided to make a clear distinction between the electoral rolls for the Assemblies and the list of voters for the Panchayat elections. That is clear from Sub-section. (1) of Section 12 and from Sub-section. (1) of Section 13 of the Panchayat Act. What Is plenary for the purposes of the Panchayat elections is the list of voters and not that electoral roll. We shall presently show that upon a consideration of the rules also a slightly different procedure is prescribed for the list of voters than for the preparation of the electoral rolls. But there is no doubt about the clear-cut distinction drawn in the Bombay Village Panchayats Act between the electoral roll for the Assembly electron and the list of voters for the Panchayat elections.
16. then we turn to the provisions of Rule 3 of the Bombay Village Panchayats Election Rules, 1959, and it is clear that the electoral roll of the Bombay Legislative Assembly does not by the mere fact of its preparation and final declaration under Rule 22 of the Registration of Electors Rules automatically become the list of voters for the Panchayat elections. Rule 3 provides a follows:
'3. Maintenance and custody of lists of voters. -
(1) The officer designated by the Collector under Sub section (2) of Section 12 of the Act shall maintain a list of voters of each ward of the village which shall contain that names of all persons who are enrolled as voters in the electoral roll of the Bombay Legislative assembly from that part of the constituency of the Assembly as is included in each such ward. Such officer shall authenticate each list of voters so maintained and shall sign every page thereof and shall seal it with the common seal of the Panchayat.
(2) The Officer aforesaid shall from time to time carry out in the authentic copy of each list of voter: maintained under Sub-rule (1) all corrections which may be made in the electoral roll of the Bombay Legislative Assembly and shall initial below each correction so made
(3) The lists of voters maintained under this rule shall be Kept in the panchayat chest or safe under lock and key and the officer whose duty is to keep the key of the chest or safe shall be responsible for the safe custody of the said lists.
(4) Copies of lists of voters maintained under this rule shall be kept open for public inspection at the village Chavdi and at the village panchayat office.
(5) The Mamlatdar shall, at least one month before the date fixed for the nomination of candidates for every general election of the village panchayat, give a public notice of the places where copies of the relevant lists of voters are kept open for public inspection. Such notice shall be affixed at the village Chavdi and at the village panchayat office.'
The provisions of Sub-rule (2) Indicate that tha Officer appointed under Sub-section. (2) of Section 12 of the Act (in the instant casa ha was Mr. Rupade) has from time to time to carry out in the authentic copy of each list of voters maintained under Sub-rule (1) all tha corrections which may be made in the) electoral roll of the Bombay Legislative Assembly and ho has to initial below each correction so made. It seems to us that tha very fact that the Collector is enjoined to designate an Officer to perform those requirements of the law shows that it is not a mere matter of ministerial dealing with the roll as Mr. Junankar would put it. On the other hand, it seems to us that in the discharge of his duties under Section 12 (2) the Officer appointed has an Important function to perform. It is he who has to correct the list of voters In accordance with the Bombay Legislative. Assembly Rules as and when they are corrected; but when by the rules he is enjoined io do that it can only mean that he is enjoined) to do It In accordance with the provisions of the Act under which the rules themselves are framed. Surely the rules empowering an officer to act cannot empower him to flout the very Act under which these rules are framed. Therefore, Mr. Rupade in the instant case was bound to have regard to the provisions of Section 12(1) and in fact give effect to that section, in the orders which he passed upon the new list of voters which had come to him. As we have said, Section 12(1) clearly provided that the electoral roll in force on the day prior to the date of nominations shall be the list of voters for the ward. Therefore, the list received by Mr. Rupade on 25-8-1981 was not the list of voters as provided by Section 12 (1) and he was therefore right in not permitting the correction of the list of voters in accordance with the corrections made in the Bombay Legislative Assembly electoral roll, after 24-8-1961.
17. But than Mr. Junankar disputes the facts. He says that it has not been established that the supplementary list which Mr. Rupade received was prepared on 25-8-1961. On the other hand, he has referred to the evidence of the Sar Ranch Vithoba Sadasheo Yende (applicant's witness No. 7) who says that the supplementary list dated 25-8-1961 had come to him for publication as he was then the Sar Panch. It came to him on 25-8-1961. Now, Mr. Junankar argues that if the list of voters came to the Sar Panch on 25-8-1961, surely it must have taken some days to prepare it and send it first to Mr. Rupade and then to the Sar Panch and therefore it must be assumed that it was prepared either on the 24th or on the 23rd, in either of which cases it would be valid even having regard to the provisions of Section 12(1)- It seems to us that this is a pure question of fact. It Is a question which was never raised by the petitioner when ha filed his election petition. On the other hand, it is he who has produced the supplementary list with the endorsements thereon in this Court and felled upon it. Even in the petition he has not challenged that the dates which this list bears on the face of it were not the dates on which the list was prepared. We are not prepared to accept the contention today at this late stage that the supplementary list was prepared on some date unknown but earlier than 25-8-1961. Mr. Rupade has clearly endorsed on the face of the document that the supplementary list was amended on 25-8-1961, that is to say, not before the date preceding the day for receiving nomination papers and that endorsement must be accepted as correct. Nothing to the contrary has been alleged or proved.
18. In the result, therefore, we set aside the finding of the Civil Judge on this question and hold that the defect pointed out by the learned Civil Judge that 10 voters as per the list were not allowed to vote was not a defect at all. On the contrary those 10 voters were rightly excluded from voting. Therefore, that would not be the objection vitiating the election.
19. Then we turn to the next ground of objectionupheld by the learned Civil Judge, i.e. that three voterswith the surname 'Parbat' were allowed to vote thoughthere was no surname like 'Parbat' in the list of voters.It seems to us that here again the learned Civil Judgehas had more regard to the technicality of the law thanto the substance. What actually happened Is clear fromthe findings of that Civil Judge. There were three namesin the list of voters as follows :
No. 475 Ganpat Pandurang Sakode
No. 476 Gajanan Pandurang Sakode, and
No. 477 Maina Sakode.
Three persons came before the Polling Officer and claimed that they were the persons who were mentioned inthe above entries. When they were asked their names,they mentioned that their respective names were GanpatPandurang Parbat, Gajanan Pandurang Parbatand Maina Parbat. Undoubtedly there was a differencein the surnames as mentioned in the list and as givenby these three individuals. The surname in the list wasSakode but these persons gave their surname as Parbat.Now, the Polling Officer satisfied himself that these werethe very persons entitled to vote under the entries Inthe voters' list Nos. 475, 476 and 477 and he thereforepermitted them to vote. Mr. Junankar contends that theview taken by the learned Civil Judge is correct and thathaving regard to the provisions of Rule 23 of the BombayVillage Panchayats Election Rules read with Section 13(1)of the Act, only the persons named in the list of votershave the right to vote and since the names of thesethree persons were not in the list of voters they werewrongly permitted to vote and therefore the view whichthe Civil Judge took is correct. Rule 23 however, makescertain provisions which are material upon this question.In clauses (iii) and (iv) of Rule 23 it is provided as follows:
'23. Recording of votes. -- Votes shall be recordedin accordance with the following provisions, namely:--
************* (iii) before a voting paper is delivered to an Intending voter, his name and his number In the voters' list shall be called out so that all present can hear them;
(iv) in cases where no objection has been raised after taking the voters' signature or mark on the counterfoil, endorsing the paper across the junction of foil and counterfoil with a seal and initialling the counterfoil, the polling officer shall give the foil to the voter and admit him to the polling room.
Where objections are raised by candidates and their agents, the presiding officer shall dispose of such objections and when satisfied that the Intending voter is entitled to vote and has not yet voted, shall direct the polling officer to give the foil of the voting paper to him after taking his signature or mark on the counterfoil, endorsing the paper across the junction of foil and counterfoil and initialling the counterfoil. The voter shall then be admitted to that polling room. The presiding officer shall initial the foil of the-voting paper of the voter In respect of whom objection has been raised; *************'
These are provisions peculiar to these Panchayat elections. It appears that the Legislature, recognising the capacity and the type of the voter who would coma to cast his vote at these elections, felt that It was necessary to publicly announce the name of each voter as he came to vote as mentioned in the list of voters and also made provision for prevention of Impersonation. Therefore, In clause (iv) it provided that objections could be raised and if no objections were raised, after taking the voter's signature or thumb-mark on the counter-foil and making other endorsements, the polling officer was to give the foil to the voter and admit him to the polling room. When an objection is raised, what the polling officer has to do is mentioned in the latter part of clause (iv). The presiding officer has to dispose of the objection and 'when satisfied that the intending voter is entitled to vote and has not yet voted', has to direct the polling officer to give the foil of the voting paper to him after taking his signature etc. Therefore, the presiding officer is given plenary power to satisfy himself that the intending voter is entitled to vote and has not yet voted and that is what that presiding officer in the instant case did. There Is nothing brought out on the record nor alleged In the affidavits of the parties to show that the intending voters in these three cases, namely, Ganpat Pandurang Sakode, Gajanan Pandurang Sakode and Maina Sakode, were not entitled to vote. In fact, it was never the case of the election petitioner that these three, individuals who were permitted to vote had no right of vote, nor has it been at all proved or alleged that any other persons had a right of vote under the three entries in dispute. The election petitioner's case was that the names did not tally and therefore they were not entitled to vote. We do net think that having regard to the provisions of Rule 23 and even reading it in the light of Section 13 (1) such a contention can be accepted. In fact, it is clear from Rule 23 that the presiding officer has to consider the substantial right of franchise and decide whether that individual has that right and not to consider whether technically his name appears in the list of voters or not. We do not think that the provisions which the Legislature has made were Intended to defeat the right of franchise, upon any such technical argument.
20. Reference was made by Mr. Junankar to Rule 27 which provides that when a person representing himself to be a particular voter entered in the voters' list applies for a voting paper after another person has voted as such voter, the applicant shall, after duly answering such questions as the presiding officer may ash, be entitled to receive a voting paper. Of course, the rule does not directly apply in this case because this Is not a case where another person has voted in place of the voter truly entitled to vote, but the rule certainly shows that even in a case where someone has actually exercised the franchise of the individual truly entitled to vote, that individual who is truly entitled to vote does not lose his franchise. Therefore, the rule itself shows the anxiety of the Legislature to safeguard the substantial right of franchise and not have regard to a technical objection-that someone has already voted under that entry. The rule, if anything, would reinforce an argument against the view taken by the learned Civil Judge. This finding of that learned Civil Judge therefore also cannot be sustained and we hold that the three voters were validly allowed to vote and that they were allowed to vote does not vitiate the election of the petitioners.
21. The next objection upheld against the election was regarding one Vithoba Govinda Sakode. This person's name was not in the electoral roll. It appears that due to an error in the preparation of the voters' list, his name was wrongly included in the voters' list of village Kora and not of village Mandgaon with which we are concerned here. Even assuming that this person was wrongly excluded from voting, we do not see what difference it could make to the election held in the instant case, particularly to the election of the three petitioners. The three petitioners had received respectively 143, 144 and 141 votes, whereas the next highest votes 138 were obtained by the respondent No. 6 Vithoba who was the petitioner in the election petition. The respondents Nos. 7 and 8 had stilt less votes, namely, 133 and 127. Therefore, whether Vithoba Govinda Sakode was rightly or wrongly allowed to vote will not in the slightest degree affect the election of the three petitioners for one vote will not affect the result of the election. In that view, we do not think that the question whether this individual was allowed to vow or not allowed to vote is at all material for consideration. This aspect of the matter escaped the notice of the learned Civil Judge-. In our opinion, the election was wrongly set aside by the learn-ed Civil Judge. The errors which we have pointed out are clear errors affecting his jurisdiction as a Court trying an election petition. He has completely ignored the vital provisions of the Bombay Village Panchayats Act and the Rules and therefore his decision Is liable to be interfered with under our constitutional powers.
22. We set aside the order of the) Civil Judge, Junior Division, Hinganghat, dated 21-12-1962 and instead allow the petition and declare that the three, petitioners were validly elected as members of the village Panchayat, Mandgaon. The respondents Nos. 6, 7 and 8 shall pay the costs of petitioners and of the State.
23. Mr. Junankar prays for grant of leave to appeal to the Supreme Court. Leave is refused.
24. Petition allowed.