ORDER
M.N. Rao, J.
1. In the elections held on 16-3-1988 to the office of Sarpanch, Mangithurthi Gram Panchayat, the petitioner and the fifth respondent contested; the latter was declared elected by a margin of seventeen votes. The present writ petition was filed on 29-3-1988 challenging the election on the ground that the electoral roll pertaining to Mangithurthi Gram Panchayat was defective in that it was not prepared in accordance with the mandatory provisions of the A.P. Gram Panchayats (Registration of Electors) Rules, 1978, (hereinafter referred to as the Rules) issued in G.O.Ms.No. 995, Panchayat Raj (Elections-I) dated 30-9-78. The facts as they emerge from the pleadings and the record produced before me are as follows: As per the notification issued on 17-8-87 by the Government the following is the schedule regarding the preparation of Electoral Roll.
1-9-1987 : Draft publication of electoral roll.
2-9-87 to 16-9-87 : Time prescribed for filing objections.
17-9-87 to 9-10-87 : Objections to be disposed of
12-10-87: Final Electoral Roll to be published.
The actual publication of the final electoral was done on 26-10-87. Within the time prescribed i.e., between 17-9-87 and 9-10-87 twelve persons filed objections to the effect that the names of twelve persons were wrongly included in the draft electoral roll. On 10-10-1987 the objections were disposed of by the Mandal Revenue Officer, the competent authority. Twelve appeals were filed on 27-10-1987 before the Revenue Divisional Officer-the appellate authority i.e., one day after the publication of the final electoral roll. The appeals had not been disposed of but the election was held as already stated on 15-3-1988. These are the admitted facts.
2. Sri S. Ramachandra Rao, learned counsel for the petitioner contends that as the electoral roll was vitiated because of the failure of the appellate authority to dispose of the appeals preferred under the statutory Rules, the election held on the basis of the illegal electoral roll must be set aside. Countering these contentions Sri V.L.N.G.K. Murty learned counsel for the fifth respondent argues that when once the final electoral roll was published, the failure of the appellate authority to dispose of the appeals would not vitiate the validity of the finality of the electoral roll. Even assuming that the final electoral roll was defective, such defect would extend only to the exclusion of the names of the twelve persons who preferred the appeals before the Revenue Divisional Officer and as the majority secured by the fifth respondent was seventeen, the election should be maintained. In reply to this Sri Ramachandra Rao, learned counsel for the petitioner says that as the electoral roll itself is void, the election held on the basis of such a void list, should not be permitted to stand. The learned Government Pleader raised a contention that the appeals by the twelve persons before the Revenue Divisional Officer, are not maintainable inasmuch as they were not presented in person.
3. Before dealing with the contentions raised, it is necessary to notice the relevant provisions in the Act and the Rules. Under Section 14 of the Act, the electoral roll for every gram panchayat is prepared under the direction and control of the competent authority authorised by the Government. Section 14A deals with disqualification for registration in the electoral roll and 14-B speaks of conditions of registration. Section 14C deals with preparation, revision and publication of the electoral roll. Section 15 deals with re-arrangement and republication of electoral rolls. Section 15A ousts the jurisdiction of the civil court to entertain or adjudicate any question whether any person is or is not entitled to be registered in an electoral roll for a gram panchayat or the legality of any action taken by or under the supervision of the electoral authority under Section 14, 14C or Section 15. Sub-section (4) of Section 14-C enjoins that the electoral roll published under Sub-section (1) of Section 14-C or the electoral roll republished under Section 15 shall be the electoral roll for the gram panchayat and shall remain in force till a fresh electoral roll for the gram panchayat is published under that section. Under Rule 8 of the Rules a duty is cast on the electoral authority to prepare a draft electoral roll. Rule 12 deals with the publication of draft electoral roll. Rule 13 says that objections to the inclusion of names in the electoral roll can be lodged within fifteen days from the date of publication of the draft electoral roll. Rule 20 deals with notice of hearing of claims and objections. Rule 21 obligates the registration officer to hold a summary enquiry. Rules 22 and 23 speak of inclusion of names inadvertently omitted and deletion of names of dead electors and all persons who have not resided in the village. Rules 24 and 25, basing upon which the main arguments are advanced, are as follows:
'Rule 24. Final publication of roll:
The Registration Officer shall thereafter:-
(a) prepare a list of amendments to carry out his decisions under Rules 19, 21, 22 and to correct any clerical or printing errors or other inaccuracies subsequently discovered in the roll; and
(b) publish the roll, together with the list of amendments, by making a complete copy thereof available for inspection and displaying a notice is Form 13 in the following places:-
(i) at his office
(ii) at the office of the gram panchayat.
(2) on such publication the roll together with the list of amendments shall be the final electoral roll for the Gram Panchayat.
' Rule 25. Appeals from orders deciding claims and objections:-
(1) An appeal shall lie from any decision of the registration officer under Rule 21, Rule 22 or Rule 23 to such officer as the Government may by order designate in this behalf (hereinafter referred to as the appellate officers):
Provided that an appeal shall not lie where the person desiring to appeal has not availed himself of his right to be heard by, or to make representations to, the registration officer on the matter which is the subject of appeal.
(2) Every appeal under Sub-rule (1) shall be-
(a) in the form of a memorandum signed by the appellant, and
(b) presented to the appellate officer within a period of fifteen days from the date of announcement of the decision or sent to that officer by registered post so as to reach him within that period.
(4) The presentation of an appeal under this rule shall not have the effect of staying or postponing any action to be taken by the registration officer under Rule 24.
(5) Every decision of the appellate officer shall be delivered within seven days from the date of presentation of appeal and shall be final but in so far as it reverses or modifies a decision of the registration officer, shall take effect only from the date of the decision in appeal.
(6) The registration officer shall cause such amendments to be made in the roll as may be necessary to give effect to the decisions of the appellate officer under this rule.'
Although Rule 24 says that the publication of electoral roll under that Rule shall be the final electoral roll in the Gram Panchayat, it must be read harmoniously along with the provisions contained in Rule 25. If the appeal is presented in the manner prescribed under Rule 25(2) of the Rules within the prescribed time, it shall be disposed of by the appellate authority within seven days from the date of presentation. The decision of the appellate authority shall be final and in so far as it reverses or modifies the decision of the registration officer, its effect shall be from the date of the decision in appeal. Rule 25(6) mandates that the registration officer shall carry out the amendments in the electoral roll in order to give effect to the decision of the appellate authority. It, therefore, follows that the final electoral roll published under Rule 24 of the Rules is final subject to the orders of the appellate authority.
4. Admittedly in the present case the appeals preferred to the appellate authority were not disposed of; it appears they are still pending. Unless a decision is rendered by the appellate authority statutorily constituted, it cannot be said that the order passed by the original authority which is questioned before the appellate authority, has attained finality. It cannot be predicated what view the appellate authority would have taken had the appeals been disposed of. But the failure to dispose of the appeals cannot be a ground to hold that the view taken by the original authority viz., the electoral registration officer (Mandal Revenue Officer) was final because the appeal against that view was pending. In the circumstances, I think the inference that must necessarily be drawn is that the deletion of the twelve names from the electoral roll published under Rule 24 of the Rules was illegal.
5. The next question for consideration is: What is the effect of the defective electoral roll on the election held on 15-3-88? The fifth respondent was declared elected by a margin of seventeen votes. Even assuming that the appellate authority (the Revenue Divisional Officer) would have allowed all the twelve appeals, still it would not have made any difference to the election of the fifth respondent as Sarpanch since even then he would have had a clear majority of five votes. I think, this realistic view alone should be the proper test to decide the validity of the election in the present fact-situation. It is not as if any of the twelve persons had come to this court complaining that their right to contest for the office of the sarpanch was taken away because of the non-inclusion of their names in the electoral roll. None of them has come to this court with such a grievance. The petitioner, therefore, cannot espouse the cause of those persons, in this writ petition, for seeking a declaration that the election of the fifth respondent must be set aside since those twelve persons had no opportunity to file nominations. It is needless to mention that a right to contest in election is not a common-law right; it is an individual right granted by the Statute. What could have been or would have been the complaint of persons not before the court cannot be adjudicated at the instance of third parties.
6. Shri V.L.N.G.K. Murthy, learned counsel for the fifth respondent has urged that the writ petition itself is not maintainable since the electoral roll has attained finality and the validity of such a roll cannot be gone into in any judicial proceeding for deciding the validity of the election held on the basis of such an electoral roll. In support of this proposition he cited B.M. Ramaswamy v. B.M. Kumar, : [1963]3SCR479 . I am not inclined to accept the contention of Sri Murthy; the precedent cited by him has no application to the present case. The validity of an electoral roll based upon which election was held to the Gram Panchayat was questioned in the High Court of Karanataka without preferring a statutory appeal prescribed under the Rules governing the preparation of the electoral rolls. Dealing with that aspect a Constitution Bench of the Supreme Court, speaking through Subba Rao, J., (as he then was) held:
'It is not disputed that an application was filed before the registration officer for the inclusion of the appellant's name in the electoral roll; it is also common case that the electoral registration officer did not follow the procedure prescribed in Rule 26 relating to the posting of the application in a conspicuous place and inviting objections to such application. It cannot, therefore, be denied that the inclusion of the name of the appellant in the electoral roll was clearly illegal. Under S. 30 of the Representation of the People Act, 1950, no civil court shall have jurisdiction to question the legality of any action taken by, or under the authority of, the electoral registration officer. The terms of the section are clear and the action of the electoral registration officer in including the name of the appellant in the electoral roll, though illegal, cannot be questioned in a civil court; but it could be rectified only in the manner prescribed by law, i.e., by preferring an appeal under RULE 24 (Section 27) of the Rules, or by resorting to any other appropriate remedy. But it was contended before the High Court that the action of the electoral registration officer was a nullity inasmuch as he made the order without giving notice as required by the Rules. We find it difficult to say that the action of the electoral registration officer is a nullity. He has admittedly jurisdiction to entertain the application for inclusion of the appellant's name in the electoral roll and take such action as he deems fit. The non-compliance with the procedure prescribed does not affect his jurisdiction, though it may render his action illegal. Such non-compliance cannot make the officer's act non est, though his order may be liable to be set aside in appeal or by resorting to any other appropriate remedy.'
This case is not an authority for the proposition that an electoral roll not prepared in accordance with the statutory rules governing with the preparation of such an electoral roll is immune from judicial scrutiny. The ratio of the decision is that any defects in the preparation of an electoral roll must be set right only in accordance with the statutory rules governing preparation of such an electoral roll. When once the electoral roll is prepared and finalised in accordance with the provisions of the Act and statutory rules governing such preparation, the electoral roll attains finality and there cannot be any judicial scrutiny in respect of such a final electoral roll. Where the appellate authority although entertained the appeal preferred in accordance with the statutory rules, did not dispose of the same. It cannot be said that the electoral roll which itself was subject to the orders passed by the appellate authority, has nonetheless attained the finality. Such an interpretation would be subversive of the authority conferred upon the appellate authority rendering nugatory its powers under the statute. The order passed by the original authority necessarily and invariably gets merged with that of the appellate authority. When the appeal was filed, but not disposed of, it could not be said that the order under appeal became final. A validly prepared electoral roll being the foundation for a free and fair election, the validity of an election to a local authority held on the basis of an electoral roll not prepared in accordance with the mandatory statutory requirements can and could be the subject matter of judicial review.
7. The contention raised by the learned Government Pleader that as the twelve appeals were not presented in person before the Revenue Divisional Officer-the appellate authority-there were no valid appeals ;in the eyes of law, is devoid of substance. Rule 25(2) which deais with the procedure for preferring the appeal, as already noticed, does not cast any obligation that the appeal should be presented in person.
8. For the foregoing reasons the writ petition fails and accordingly it is dismissed, but in the circumstances, without costs.
Advocate's fee Rs. 350/-.