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Subba Rao, C.J.—This is a petition under Article 226 of the Constitution of India for quashing the order, dated 14th July, 1953 of the Regional Inspector of Local Boards and Municipal Councils, Northern Range, Vijayawada fixing a fresh date for the publication of the list of valid nominations for the election of President and for quashing the order of the Deputy Panchayat Officer, Bhimavaram, including the name of Kanumilli Venkataramayya as the fourth valid nomination for the election of President and for other incidental relief''s.
The village of Attili West Godavari District was declared to be a Class I, Panchayat under the Madras Village Panchayats Act (hereinafter referred to as the Act). The division t)f the wards in the said village was made in May, 1952 and the number of general seats was fixed at 11 and reserved seat at 1 for the said Panchayat. In or about January, 1953, the relevant portion of the electoral roll of the assembly constituency was adopted as the electoral roll ''of the Panchayat and was duly published. Some months, prior to the publication, i.e., on 29th August, 1952, the Election Commission directed the deletion of the name of K. Venkataramayya, the 4th Respondent herein, from the electoral roll of the Union Parliament for a period of live years as from 1952 as he did not submit a return of election expenses to the Election Commissioner. Accordingly, in the electoral roll published by the prescribed authority, the serial number against the name of the 4th Respondent was ringed off and a note was made in red ink to the effect that the name of Venkataramayya was removed for a period of five years from 15th May 1952. Though the Election Commission removed this disqualification on 15th May 1953, his name was not restored by amending the electoral roll in the. manner prescribed. The panchayat electoral roll, which was subsequently published also contained the above note. The effect was that Venkataramsya''s name was not on the electoral roll of the panchayat.
The 2nd Respondent, the Regional Inspector of Local Boards and Municipal Councils, Northern Range. Vijayawada, ordered the conduct of the elections to the said panchayat in pursuance of which the electoral roll and notices were published on 27th April, 1953. The dates of receipt of nominations and scrutiny were fixed as 5th May, 1953 and 6th May, 1953, respectively while the poll was scheduled to take place on 19th May, 1953. The Petitioner filed his nomination for the office of President of the panchayat on 5th May, 1953.
The 4th Respondent Venkataramayya, whose name was not on the electoral roll also filed his nomination for the same office but the Election Officer, on the date of scrutiny, rejected his nomination on the ground of the aforesaid disqualification. The 4th Respondent preferred an appeal to the Assistant Collector, Narasapur, who rejected the appeal for the reason that his name was not or the electoral roll and that his name was not subsequently restored in the electoral roll in the prescribed manner. But the Government by its order, dated. l4th May, 1953, stayed the election of the President till further orders.
The Government by their order dated 7th July. 1953, ordered the name of the 4th Respondent to be included in'' the list of valid nominations on the ground that the rejection of the candidature was contrary to Rule 8 (2) of the Rules for the Election of President of Panchayats. Pursuant to the order of the Government, the 2nd Respondent in his R, O. G. No, 6679 of 1953, dated 14th July, 1953 in partial modification of the previous proceedings, approved the revised election program.
including the name of the list of valid nominations in respect of President of the Panchayat and fixed the following dates:
Publication of list of valid nominations for the election of the President ... 20-07-1953 Poll for the election of the President and members of the panchayat ... 31-07-1953 Counting of votes ... 01-08-1953 The Election Officer published a list of valid nominations for the election including therein the name of the 4th Respondent.
Learned Counsel, appearing for the Respondents, raised a preliminary objection 11. at the order of the Government, directing the inclusion of the name of the 4th Respondent h\\ the list of valid nominations, was only an administrative one and. therefore, it is not liable to be quashed in a writ of certiorari. To appreciate this contention, it is necessary to notice the rules ihcivinidcr and the circumstances under which Government exercised this power. The relevant rules are as follows:
(1) On the date appointed for the scrutiny of nominations, the candidates, one proposer and one seconder of each candidate and one other person duly authorised in writing by each candidate may, and except for the purpose or assistant Election Officer no other person shall, attend at such time and place as may be specified under Rule 7 and the Election Officer shall give such persons all reasonable facilities to examine the nomination papers of all candidates which have been received as aforesaid.
(2) The Election Officer shall then examine the nomination papers and shall decide all objections which may be made at the time to any nomination and may either on such objection or on his own motion after such summary inquiry, if any, as he thinks necessary, reject any nomination en any of the following grounds:
(i) that the candidate is ineligible for election under Sections 14, 15, 16 or 21 (1) of the Act;
(ii) that the proposer or seconder is a person whose name is not registered on the electoral roll for the panchayat; or �(hi) that there has been any failure on the part of the candidate or his proposer or seconder to comply with any of the provisions of rule ''4 or 6:
Provided that the nomination of a candidate shall not be rejected merely on the ground of an incorrect description of his name or of the name of his proposer or seconder, or of any other particulars relating to the candidate or his proposer or seconder as entered on the electoral roll, if the identity of the candidate, proposer or seconder, as the case may be, is established beyond reasonable doubt.
(3) The Election Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected shall record in writing a brief statement of his reasons for such rejection. The scrutiny shall be completed on the date appointed in this behalf under" Rule 3 and no adjournment of the proceedings shall be allowed.
(1) If the nomination of a candidate is rejected, the Election Officer shall, on a written application made by the candidate or his authorised agent, forthwith give him a copy o! the order rejecting such nomination.
(2) Against any order rejecting the nomination of a candidate, an appeal shall lie to the District Panchayat Officer. The memorandum of appeal shall be delivered to the District Panchayat Officer or shall reach Imp within three days of the date of (lie order,
(3) After the expiry of the three days aforesaid the District Panchayat Officer shall forhwith inform the Election Officer, as to whether an appeal has or has not been preferred to him under Sub-rule 2. If any such appeal or appeals have been nrderred, the District Panchayat Officer shall communicate the orders passed by him on such appeal or appeals to the Election Officer within four days of such expiry, that is to say within seven days from the date fixed for the scrutiny of nominations.
(1) On the expiry of three days from the scrutiny of nominations, or if any appeal or appeals have been preferred under Sub-rule (2) of Rule 9, on the expiry of seven days from such scrutiny, the Election Officer shall prepare a list in Form III in the chief language of the locality of persons whose nominations have not been rejected and who have not withdrawn their candidature and publish it on the notice board of the officer of the panchayat where there is one and if there is no such office, in any conspicuous place in the village at least four clays before the date fixed for the election.
(1): If any question arises as to the interpretation of these rules otherwise than in connection with an inquiry held under the rules for the decision of disputes as to the validity of an election, the question shall be referred to the Government whose decision shall be final. 14) If any difficulty arises as to the holding of any election under these rules, the Government may, by order, do anything not inconsistent with these rules, which appears to them necessary for the proper holding of the election.
The combined effect of the rules may be stated thus: On the date fixed for the scrutiny of the nomination papers, the person or persons representing the candidates are given reasonable facilities to examine the nomination papers of the candidates to enable them to raise objections. The Election Officer suo motu or on objection raised by the candidates or his representatives decides the validity of the objections ''and rejects any one of the papers on the prescribed grounds. ''He shall endorse on the nomination paper his decision accepting or rejecting the same.
If he rejects the nomination paper, he shall record in writing a brief statement of his reasons for such rejection. On a written application made by the candidate, he is bound to give a copy of the order made by him rejecting his nomination. A candidate affected by the decision of the Election Officer may file an appeal within three days of the date of the order to the District Panchayat Officer. Within seven days from the date fixed for the scrutiny of nominations, the District Panchayat Officer shall give his decision on the appeal and communicate it to the Election Officer.
If an appeal is preferred, on the expiry of seven days from the date of the scrutiny of the nominations, the Election Officer shall publish the nominations. Rule 40 confers a kind of revisional jurisdiction on the Government confined to the matters mentioned therein and also to make interim or interlocutory orders. On a reference made to the Government as regards the interpretation of the rules otherwise than in connection with an inquiry held under the rules for the decision of disputes as to the validity of an election, the Government can interpret the rules.
If any difficulty arises as to the holding of an election under the rules, the Government may by order do anything not inconsistent with the rules which appears to them necessary for the proper holding of the election. It is clear that the rules provide for a summary remedy for the disposal of the objections raised to the nominations as early as possible. It provides a hierarchy of tribunals for disposing of the objections within the prescribed time. The procedure prescribed for an enquiry before the Election Officer is essentially judicial in nature.
Objections are filed before him by the parties and. after making an inquiry if necessary, he is authorised to give a decision affecting the rights of the parties giving his reasons for it. His order is subject to an appeal to the District Panchayat Officer, who has to decide on the correctness of the decision of the Election Officer. The nature of the order of the Appellate Tribunal cannot be different from that of the Original Tribunal. Assuming without deciding that Government in exercise of its revisional jurisdiction can interfere with the order of the Appellate Tribunal under Rule 40 of the Rules, can it be said that the proceedings which were essentially of a judicial character at the inception and also at the appellate stage would become administrative proceedings when they reach the Government on a reference or otherwise? In our view, the Government in exercising its jurisdiction under Rule 40, would be exercising the same jurisdiction the inferior tribunals have exercised. In this view, the act of the Government under Rule 40 would also be a judicial act.
What is a judicial act has been defined by Atkin L. J., in The King v. Electricity Commissioner. (1924) 1 KB 171 in the following terms at page 205-
Wherever any body Of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King''s Bench Division exercised in these writs."
The said definition was split into its component parts by Slesser, L. J., in The King v. The Lts-don County Council, (1931) 2 KB 215 At page 243, His Lordship says:
Atkin L. J. (as he then was) in (1524) 1 BIB 171 (A), lays down four conditions under which a rule for certiorari may issue. He says: "Wherever any body of persons" (first) "having legal authority" (secondly) "to determine questions affecting the rights of subject:;" and (thirdly) "having the duly to act judicially" (fourthly) "act in excess of their legal authority" -sub-divisions are my own--"they are subject to the controlling jurisdiction of the King''s Bench Division exercised in these writs.
This definition has been adopted and followed by the Supreme Court of India in Province of Bombay Vs. Kusaldas S. Advani and Others, (C). The duties of the Election Officer certainly fit in with the aforesaid definition. He has legal authority to decide on the objections raised by the candidate. The question decided by him affects the rights of the parties, and in deciding the objections raised he hears the parties and may also make an enquiry and, therefore he has a duty to act judicially. If the act of the original authority is a judicial act, it follows that the acts of the appellate or revisional authorities would also partake of the same character. In Parker''s "Election Agent and Returning Officer", the nature of the functions of a Returning Officer is described at page 140 thus:
He is a judge of fact, and the fact in all cases within his jurisdiction is whether the requirements of the law with respect to the filling up, signature and time of delivery of a nomination paper have, in substance and in common sense been complied with. In the exercise of this function, the returning officer acts judicially and he must therefore proceed with the utmost bona fides and impartiality."
We, therefore, hold that the orders of the Election Officer, the District Panchayat Officer and the Government were all judicial acts liable to be quashed, if they exceeded their jurisdiction in making the said orders.
The next question is whether the Government exceeded their jurisdiction in interfering with the appellate Order of the District Panchayat Officer. As aforesaid, the rules prescribe a hierarchy of tribunals and confer summary jurisdiction on them to decide the dispute relating to nominations, leaving the final decision to the Election Tribunal. Rule 40 (1) definitely limits the jurisdiction of the Government to interpretation of the rules. If any question arises as to the interpretation of the rules, the officers concerned shall refer the matter to the Government.
This rule does not confer on the Government any power to interfere suo motu with the orders made by the Election Officer or on appeal by the District Panchayat Officer. In this case, the District Panchayat Officer confirmed the order of the Election Officer on the ground that the name of the fourth Respondent was not on the electoral roll. Admittedly, the name of the fourth Respondent was not on the roll for it was removed. As no question of interpretation of the language of the rules arose the District Panchayat Officer did not make any reference to the Government and the Government, therefore, had no jurisdiction to interfere with his order under Rule 40 (1) of the Rules.
Now coming to Sub-rule 4 of Rule 40, on which reliance is placed by the Respondent, it says that, if any difficulty arises, as to the holding of any election under these rules, the Government may by order do anything not inconsistent with these rules which appears to them necessary for the proper holding of the election. This rule only confers jurisdiction on the Government to do anything not inconsistent with the rules to remove any difficulty arising as to the holding of an election.
The Government cannot interfere with the statutory order of an appellate authority in rejecting the nomination papers for the said order does not create any difficulty in holding the elections. The elections but for the interference of the Government could have proceeded smoothly under the rules. The interference by the Government with the order of the District Panchayat Officer, is therefore, without jurisdiction.
Assuming that the Government has such a power under Rule 40 (4), the question is whether there is any error on the face of the record of the Government''s proceedings. The effect of the order passed by the Government is that the fourth Respondent''s name is directed to be included in the list of valid nominations that were accepted on 5th May, 195JJ. Admittedly, on the date the fourth Respondent filed the nomination paper and his nomination was rejected, his name was not on the panchayat electoral rolls as it was removed from it, The question is whether a person could be validly nominated if his name was not on the voter''s list on the date when he hied his nomination paper. Learned Counsel for the Petitioner contended that under the provisions of the Act and the rules framed thereunder, only a person, whose name is on the electoral roll for the panchayat can be nominated as a candidate for election as president. We may notice; the relevant provisions of the Act and the ruico which would throw some light on the question:
Section 12 (1).-Every person whose name is included in such part of the electoral roll for any assembly constituency as relates to the village or any portion thereof shall be entitled to be included in the electoral roll for the panchayat and no other person shall be entitled to bc included therein:
Section 12 (5).-Every person whose name appears in the electoral roll for the panchayat shall, so long as it remains in force and subject to any revision thereof which might have taken place and subject also to the other provisions of this Act. be entitled to vote at an election; and no person whose name does not appear in such roll shall vote at an election.
Section 12-.A.-Notwithstanding anything contained in Section 12 the prescribed authority may, after making such inquiry as he thinks lit, publish in such manner as the State Government may direct, amendments to the. electoral roll for any panchayat for the purpose of bringing it: into accord with the electoral roll for the relevant assembly constituency.
Section 21 (l).-The president shall be elected by the persons whose names appear in the electoral roll for the panchayat from among themselves.
Section 112 confers on the Government power to make rules to carry out the purposes of the Act.
Rule 4 (1).-The nomination of every candidate shall be made by means of a nomination paper in form 1, which shall, on application, be supplied free of cost by the Election Officer or the executive authority of the panchayat concerned to any elector whose name is on. the electoral roll for the panchayat.
Rule 5.-On the presentation of a nomination paper, the Election officer or other authorised person referred to in Sub-rule 4 of Rule 4 may require the person or persons presenting the same to produce a copy of the electoral roll on which the candidate and his proposer and seconder are registered or of the necessary entries therein and shall satisfy himself that the name and number of the candidate and his proposer and seconder as entered in the nomination paper are the same as those entered in the electoral roll. Where necessary, he shall direct that the former be amended so as to be in accordance with the latter."
Rule 8 (2).-The Election Officer shall then examine the nomination papers and shall decide all objections which may be made at the time to any nomination and may either on such objection or on his own motion after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:
(i) that the candidate is ineligible for election under Sections 14, 15, 18 or ai (1) of the Act.
The aforesaid provisions may be summarised thus: Persons entitled to be included in the corresponding part of the electoral roll of any assembly constituency aa relates to the village or any portion thereof are entitled to be Included in the electoral roll for the panchayat. The electoral roll for the panchayat will be separately published and may also be amended to bring it in conformity with the electoral roll of the legislature. But. under the Act as well as under the rules framed .thereunder, only a voter whose name appears in the panchayat roll is entitled to vote or stand as a candidate for election.
The electoral roll as published is final till it is amended in the manner prescribed and that is the basis for the entire election. In this case, it is not suggested that, on the date when the fourth Respondent filed his nomination, his name was on the electoral roll, though it is contended that it should have been on the electoral roll. He was, therefore, obviously, not competent to vote or to stand for election on the date when he filed the nomination paper. The Government, therefore has no power to direct a name which is not on the rolls on or before the date prescribed for the filing of nominations to be included as a duly nominated candidate on that date.
A Division Bench of the Madras High Court consisting of Rajamannar, C.J., and Venkatarama Ayyar, J., held in P.N. Balasubrahmanyan Vs. Election Tribunal of North Arcot at Vellore and Others, (D), that the omission to .give the particulars as to the electoral roll and the serial number therein in the nomination form is not a mere technical defect but is a substantial one which the Returning Officer has no jurisdiction to overlook and such omission is a good ground for the rejection of a nomination paper by the Returning Officer u/s 36(2)(d) of the Act. In the course of the judgment the learned Judges considered the provisions of the Representation of the People Act and the rules made thereunder and made the following observations at page 4:
We therefore hold that as the Petitioner was not on the electoral roll of any Parliamentary Constituency on the date of presentation of the nomination paper, he was not qualified to stand for election to the house of the people.'''' .
So too, the Supreme Court in Durga Shankar Mehta Vs. Thakur Raghuraj Singh and Others, held that the electoral roll is conclusive as to the qualification of the elector except where disqualification is expressly alleged or proved. At page 390 (of MLJ): (at P- 524 of AIR), Mukherjea, J., (as he then was) who delivered the judgment, made the following observations:-
In other words, the electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved. The electoral roll in the case of Vusant liao did describe him as having been of proper age and on the face of it therefore he was fully qualified to be chosen a member of the State Legislative Assembly."
It is. therefore, clear that the electoral roll is final till it is amended in the prescribed manner. As the name of the fourth Respondent was not on the electoral roll at the crucial time, he was not entitled to be nominated as a candidate for the election. The Government in ignoring the principle and directing the inclusion of the name of a person, who was not on the roll, has committed an error, which is manifest on the face cf the record.
Learned Counsel for the Government contends that under the provisions of the Representation of the People Act, the name of the fourth Respondent, who was not guilty of any offence, should not have been deleted at all. It is not necessary to consider this question for, as a matter of fact, his name was deleted and was not on the rolls. It is also not necessary for us to express our opinion on the scope of Section 128 as the Government did not purport to act under the section nor did the Government seek to support the order under that section.
We, therefore, set aside the order of the Government dated 7th July, 1953 and that of the second Respondent dated 14th July, 1953. The elections will be conducted on basis of the nominations accepted by the Election officer on -5th May. 1953. The Petitioner will gel his costs which we fix at Rs. 100.