Raja Ram Ahirwar Vs. State of Madhya Pradesh and ors. - Court Judgment

A.K. Patnaik, C.J.

1. This is an appeal filed under Section 2 (i) of the M.P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, against the order dated 30-11-2007 passed by the learned Single Judge in Writ Petition No. 1890/2005 under Article 226 of the Constitution. The facts briefly are that the respondent No. 3 was enrolled in the voter list of Gram Panchayat, Lakhahar, published in the year 1999. He contested the election of Zila Panchayat, Sagar and was elected from Village Lakhahar in the year 2000. The respondent No. 3 was also registered as a voter in the electoral roll of Shivaji Ward No. 50, Bina Municipality and he contested the election for the Bina Municipality and was declared elected as President of Bina Municipality on 25-11-2004. The appellant who is also a registered voter of Shivaji Ward of Bina Municipality filed a writ petition under Article 226 of the Constitution praying for a writ of quo warranto against the respondent No. 3 or for his removal from the office of the President of the Bina Municipality. The case of the appellant in the writ petition was that the respondent No. 3 could not have been registered as a voter in the electoral roll of Bina Municipality inasmuch as he was also registered as a voter in Gram Panchayat, Lakhahar and, therefore, her was not qualified to be a candidate for election for the post of President of Bina Municipality under Section 34 of the M.P. Municipalities Act, 1961 (for short 'the 1961 Act'). In the impugned order dated 30-11-2007 the learned Single Judge held that under the relevant provisions of law and the rules, a person whose name was entered in the voter list of village was not disqualified from contesting the election and accordingly dismissed the writ petition. Aggrieved, the appellant has filed this appeal.

2. Mr. Vivek Rusia, learned Counsel for the appellant and Mr. Naman Nagrath, learned Counsel for the respondent No. 4 submitted that Rule 9-A of the M.P. Nagar Palika Nirvachan Niyam, 1994 (for short 'the 1994 Niyam') is clear that the name of any person who is registered in the voter list of any Panchayat cannot be entered in the voter list of also a Municipality and, therefore, the respondent No. 3 who was registered as a voter in the voter list of Gram Panchayat, Lakhahar, could not have been entered in the electoral roll of Bina Municipality as a voter. They submitted that the learned Single Judge was not correct in holding in the impugned order that there was nothing in the 1961 Act and the Rules made thereunder which disqualified a person whose name is entered in voter list of Gram Panchayat, from contesting the election of a Municipality. They submitted that the language of Section 34 of the 1961 Act is clear that a person who is enrolled in the Municipal Electoral Roll as a voter, shall be qualified to be a candidate for the election of President of a Municipality and as the respondent No. 3 could not have been enrolled in the Municipal Electoral Roll as a voter, having been enrolled as a voter for Gram Panchayat, Lakhahar, he was not qualified to be a candidate for the election of the President of Bina Municipality. They submitted that it is, therefore, a fit case in which a writ of quo warranto should have been issued against the respondent No. 3, as in the meanwhile respondent No. 3 has resigned from the post of Zila Panchayat, Sagar, and has assumed charge as the President of Bina Municipality. They cited the decision of Supreme Court in K. Venkatachalam v. A. Swamickan and Anr. : [1999]2SCR857 , as well as the decision of Division Bench of this Court delivered on 15-11-2006 in Writ Appeal No. 87/2006 (AtarLal Verma v. Suresh Choudhary and Ors.), in which similar writs of quo warranto were issued against persons who had been elected as Member of Legislative Assembly and Member of Zila Panchayat respectively contrary to the provisions of law.

3. Mr. N.S. Kale and Mr. Abhijit Bhowmick, learned Counsel for the respondent No. 3, on the other hand, submitted that the name of respondent No. 3 had been entered in the electoral roll of Bina Municipality as a voter and, therefore, respondent No. 3 was qualified to be a candidate for election to the post of President of Bina Municipality as per the provisions of Section 34 of the 1961 Act. He further submitted that the remedy of the appellant, if any, was to move an application under Rule 9-A of the 1994 Niyam for deletion of the name of respondent No. 3 from the electoral roll of Bina Municipality and if such an application had been filed, the respondent No. 3 would have had an opportunity of being heard and in the event orders were passed for deletion of his name from the electoral roll of the Bina Municipality, respondent No. 3 would have further had the opportunity of filing an appeal before the District Election Officer as provided under Rule 9 of the 1994 Rules. They submitted that since no application was filed under Rule 9-A of the 1994 Niyam for deletion of the name of respondent No. 3 from the electoral roll of Bina Municipality, entry in the electoral roll of Bina Municipality showing the name of respondent No. 3 as a voter became final and by virtue of such entry, the respondent No. 3 was qualified to be a candidate for election for the post of President of Bina Municipality.

4. Sections 30, 31 and 34 of the 1961 Act, which are relevant for deciding this case are extracted herein below:

30. Qualification of voters and their registration.- Subject to the provisions of Section 31, every person who:

(a) is not less than eighteen years of age on the 1st day of January of the year in which the electoral roll for a ward is prepared or revised;

(b) is ordinarily resident in the ward within the meaning of Section 20 of the Representation of the People Act, 1950 subject to the modification that reference to 'Constituency' therein were a reference to 'area comprised in ward'; and

(c) is otherwise qualified to be registered in the Assembly roll relatable to the ward;

shall be entitled to be registered in the electoral roll of that ward: Provided that:

(i) no person shall be entitled to be registered in the electoral roll for more than one ward;

(ii) no person shall be entitled to be registered in the electoral roll for any ward more than once.

31. Disqualification of voters.- (1) A person shall be disqualified for registration in the electoral roll if he:

(a) is not a citizen of India; or

(b) is of unsound mind and stands so declared by a Competent Court; or

(c) is convicted of an offence under the Protection of Civil Rights Act, 1955, unless a period of five years or such lesser period as the State Government may allow in any particular case, elapsed since his conviction; or

(d) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with election.

(1-A) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included:

Provided that the name of any person struck off the electoral roll by reason of a disqualification under Clause (d) of Sub-section (1) shall forthwith be reinstated in that roll if such disqualification is during the period such roll is in force, removed under any law authorizing such removal.

(2) If the State Election Commission or any authority appointed by it on an application made to it or on its own motion, is satisfied after such inquiry as it thinks fit, that any entry in the electoral roll of the Municipality,

(a) is erroneous or defective in any particulars;

(b) should be transposed to another place in the roll; or

(c) should be deleted on the ground that the person concerned is dead or has ceased to be ordinarily resident in the ward or is otherwise not entitled to be registered in that roll;

it shall amend, transpose or delete the entry:

Provided that before taking any action on the ground that the person concerned has ceased to be ordinarily resident in the ward or that he is otherwise not entitled to be registered in the electoral roll of that ward, the State Election Commission or the authority, as the case may be, shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him.

34. Qualification for election as President or Councillor.- (1) Subject to the provisions of this Act, a person who is enrolled in the Municipal Electoral Roll as a voter, shall be qualified to be a candidate:

(a) for the election of President, if he is not less than 25 years of age; and

(b) for the election of Councillor, if he is not less than 21 years of age.

(2) No person who is a candidate for any one ward shall be a candidate for any other ward.

(3) Any person who ceases to be a President or Councillor shall, if qualified under Sub-section (1), be eligible for re-election as such.

(4) If a person is elected for the Office of President and Councillor, both, he shall have to resign from one of the office within seven days from the date on which he is declared to be elected.

5. A reading of Sections 30 and 31 of the 1961 Act shows that it does not provide that a person who is registered as a voter of a village for the purpose of Panchayat elections is not qualified or disqualified from being registered as a voter in the electoral roll of a Municipality. Section 30 however provides that every person who is ordinarily resident in a Ward within the meaning of Section 20 of the Representation of Peoples Act, 1950 shall be entitled to be registered in the electoral roll of that ward and the first proviso to Section 30 only states that no person shall be entitled to be registered in the electoral roll for more than one ward. Section 31 of the 1961 Act, quoted above, does not disqualify a person for registration in the electoral roll on the ground that such a person is registered as a voter for a village for election of a Gram Panchayat. Thus, there is no provision in the 1961 Act prohibiting a person to be registered as a voter in the Municipal Electoral Roll if he is registered as a voter in a village for the purposes of Gram Panchayat Election.

6. Rule 9-A of the 1994 Niyam on which the appellants have relied on is quoted herein below:

9-A. Deletion of entries in the Voter's list in certain cases.- (1) If the Registration Officer, on an application made to him or on his own motion, is satisfied after such inquiry as he thinks fit, that the name of any person in the voter's list of a Municipality after its finalisation under Rule 6 should be deleted on the ground that the person concerned is registered in the voter's list of more than one ward of the Municipality concerned or of any other Municipality or of any Panchayat, the Registration Officer shall subject to such general or special direction, if any, as may be given by the Commission in this behalf, delete the entry:

Provided that before taking any action in this behalf, the 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.

(2) No deletion of any entry shall be made under Sub-rule (1) after the last date fixed for making nomination in the notice issued under Rule 21 for an election in any ward of the Municipality concerned and before the completion of that election.

(3) The Registration Officer shall record in writing the reasons for his decision to delete an entry under Sub-rule (1) and shall make available, on demand, a copy of such decision to the person concerned free of charge, forthwith.

(4) Any person aggrieved by the decision of the Registration Officer under Sub-rule (1) may prefer an appeal to the District Election Officer within fifteen days of such decision.

(5) The District Election Officer, after giving the appellant an opportunity of being heard and making such enquiry as he deems fit, shall pass suitable order on the appeal and the order of the District Election Officer shall be final.

7. Obviously, when the provisions of 1961 Act and in particular Sections 30 and 31 do not say so that a person who is otherwise qualified under Section 30 and who is not otherwise disqualified under Section 31 to be registered in the electoral roll of a Municipality will be disqualified from being registered as a voter if he is also a voter of a village for the purposes of Gram Panchayat elections. Rule 9-A cannot be interpreted to override the provisions of the 1961 Act and disqualify a person who is otherwise entitled to be registered as a voter in the electoral roll under the provisions of the 1961 Act from being registered as a voter in the electoral roll on the ground that he is also registered as a voter for the village for the purposes of Gram Panchayat elections.

8. The question then is why is it that Rule 9-A provides for deletion of name of any person from the voter list of Municipality on the ground that the person concerned is registered in the voter list of any Panchayat. The reason is that under Section 5 of the Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, for short 'the 1993 Adhiniyam', no person is entitled to be registered in the list of voters of a village if he is registered in the electoral roll relating to any other Local Authority. Section 5 of the 1993 Adhiniyam, which makes the aforesaid provision is quoted herein below:

5. Registration of voters of a village.- Every person who is qualified to be registered in the Assembly roll relatable to a village or whose name is entered therein and is ordinarily resident within the village shall be entitled to be registered in the list of voters of that village: Provided that:

(a) no person shall be entitled to be registered in the list of voters for more than one village;

(b) no person shall be entitled to be registered in the list of voters if he is registered in the electoral roll relating to any other Local Authority.

Since the proviso (b) of Section 5 of the 1993 Adhiniyam makes a provision that no person shall be entitled to be registered in the list of voters if he is registered in the electoral roll relating to any other Local Authority, a provision had to be made in Rule 9-A of the 1994 Niyam for ensuring that the person whose name is entered into the electoral roll of the Municipality as well as in the voter list of a village for the purposes of Panchayat election does not circumvent the provision of Section 5 of the 1993 Adhiniyam and is registered as a voter, both in the electoral roll relating to the local authority as well as in the electoral roll of a village for Panchayat elections.

9. A person will be entitled to be registered in the electoral roll of the Municipality on the basis of qualifications and disqualifications for such registration laid down in the Act providing for elections of the Municipalities. Similarly, a person will be entitled to be registered in the electoral roll of a Panchayat on the basis of qualifications and disqualifications laid down in the Act providing for elections to the Panchayat. So far as the elections of the Municipalities are concerned, the qualifications and disqualifications for registration of a voter in the electoral roll are laid down in Sections 30 and 31 of the 1961 Act and under these provisions, respondent No. 3, as we have seen, was entitled to be registered in the electoral roll and was, therefore, qualified to be a candidate for election to the post of President of the Municipality. On the other hand, for election to the Panchayat, respondent No. 3 was not entitled to be registered in the list of voters under proviso (b) to Section 5 of the 1993 Adhiniyam. Respondent No. 3 is no longer a Member of Zila Panchayat and is presently the President of Bina Municipality. Hence, we cannot hold that the respondent No. 3 is presently holding the office of the President of Bina Municipality contrary to the provisions of law and writ of quo warranto has to be issued against him for his removal from such office.

10. In K. Venkatachalam v. A. Swamickan and Anr. (supra), the Supreme Court found that Venkatachalam was in fact not enrolled in the electoral roll of Lalgudi Assembly Constituency and he impersonated someone else with a similar name who was enrolled in the electoral roll of Lalgudi Assembly Constituency. The Supreme Court held that under Clause (c) of Article 173 of the Constitution read with Section 5 of the Representation of Peoples Act, 1951 Venkatachalam, who was not an elector in the electoral roll of Lalgudi Assembly Constituency could not be elected as Member of Constituency and hence a writ of quo warranto could be issued against him. In the present case, admittedly the respondent No. 3 is enrolled as a voter in the Bina Municipal Electoral Roll and is, therefore, qualified to be a candidate for the post of President of Bina Municipality.

11. In Writ Appeal No. 87/2006 (Atarlal Verma v. Suresh Choudhary), decided by the Division Bench of this Court on 15-11-2006, by an order dated 22-3-1999 passed by the Sub Divisional Officer under Section 40 (1) (b) of the 1993 Adhiniyam, the continuance of Atarlal Verma as Sarpanch of Gram Panchayat was declared as undesirable and Sub-section (2) of Section 40 of the 1993 Adhiniyam provided that the person who is removed under Sub-section (1) of Section 40 shall be disqualified for a period of six years to be elected under the said 1993 Adhiniyam. The Division Bench held that the disqualification of Atarlal Verma was by automatic operation of Sub-section (2) of Section 40 of the 1993 Adhiniyam and was a statutory consequence of the order passed by the Sub Divisional Officer and since the said order passed by the Sub Divisional Officer had become final, Atarlal was disqualified from being elected as a Member of Zila Panchayat and hence a writ of quo warranto could be issued under Article 226 of the Constitution.

12. In the present case, on the other hand, Rule 9-A does not provide for automatic disqualification of the respondent No. 3 as a voter in the electoral roll of the Municipality on the ground that he was also registered in the voter list of the village for the Gram Panchayat Elections. It only provided for deletion of the name of person from the electoral roll of the Municipality on the ground inter alia that he is also registered in the voter list of any Panchayat after the Registration Officer, on an application made to him or on his own motion, is satisfied after such enquiry as he thinks fit and after Registration Officer gives a person concerned reasonable opportunity of being heard in respect of the action proposed to be taken. Admittedly, no action has been initiated by the Registration Officer under Rule 9-A of the 1994 Niyam against the respondent No. 3 for deletion of his name from the electoral roll of the Bina Municipality. There is, therefore, no ground to hold that the respondent No. 3 was disqualified from being registered as a voter in the electoral roll of Bina Municipality and was, therefore, not qualified to be a candidate for election for the post of President for Bina Municipality. In the result, we do not find any merit in the appeal and we accordingly dismiss the same.