K.C. Ramaswamy vs The Electoral Registration Officer, Chingleput Local Authorities Constituency and Another

Veeraswami, J.—This petition is to quash the order of the first Respondent, who is the Electoral Registration Officer, Chingleput Local Authorities Constituency, dated April 2, 1964, deleting the name of the Petitioner from the Electoral Roll of the Chingleput Local Authorities Constituency. This, the first Respondent did on his view that, in view of the judgment of this Court in Writ Petition No. 1167 of 1961 as confirmed in Writ Appeal No. 91 of 1962, there was no Panchayat functioning on or after April 1, 1960, in the transferred territory consisting of the areas covered by the Panchayat Unions of Pallipet, Thiruvelangadu, Thiruttani and Ramakrishna Rajapet.

The Petitioner seeks to quash the proceeding of the first Respondent on, four grounds : (i) the first Respondent has no power to make the deletion of the Petitioner''s name from the said electoral roll; (ii) the first Respondent was wrong in placing reliance upon the said judgment of this Court; (iii) the Panchayats in Thiruvelangadu, Thiruttani and Ramakrishna Eajapet having actually functioned since April 1, 1960, unless they were superseded by the Government in exercise of their power u/s 155 of the Panchayats Act (Madras Act XXXV of 1958), it was not open to the Petitioner to assume that there was no Panchayat and on that basis delete the name of the Petitioner; and (iv) it was too late for the first Respondent to carry out the deletion of the Petitioner''s name from the electoral roll.

Before dealing with these points seriatim, I may first refer to what actually was decided by this Court in Writ Petition No. 1167 of 1961. That was a petition for prohibition, restraining the Sub-Collector of Tiruvallur from holding the election of Chairman and Vice-Chairman of the Pallipet Panchayat Union Council pursuant to a notice issued by him on October 2, 1961. The prohibition was granted upon the view that the Panchayats which had been constituted under the Madras Village Panchayats Act, 1950, as in force in the Andhra did not survive after the territory in question had been transferred and made part of Chingleput district. This view was expressed on an interpretation of the transitional provision contained in Madras Act XXXV of 1958. It was held in the Writ Petition, further, that since the Panchayats did not survive and did not exist after April 1, 1960, equally, the Presidents of those Panchayats had also ceased to be Presidents; with the result that they were not entitled to vote for the constitution of the Panchayat Union Council. That decision was no doubt confined to the Pailipet Union. The matter was taken up in appeal and the Division Bench concurred with the view expressed by me. In fact, the Division Bench went further and was of the opinion that even the corporate character of the Panchayat in the transferred area had ceased to exist, and that, even if the members of the erstwhile Panchayats constituted under the Andhra Act functioned, they had no status better than a collection of individuals. It seems that this judgment of mine, as confirmed by the Division Bench, practically covers the instant case. The principle settled by the Division Bench in the appeal, concurring with the order in the Writ Petition is that the Panchayats in the transferred territory before April 1, 1960, have not been constituted as panchayats under the provisions of the Madras Village Panchayats Act, 1950, as in force in Madras, subsequent to the transfer of that territory, and the transitional provisions in Madras Act XXXV of 1958 fell, short of continuing those Panchayats by deeming that they were Panchayats constituted under Madras Act XXXV of 1958. That principle equally Applies to the three areas in question in the instant petition.

The judgment in the Writ Appeal was delivered on August 28, 1963. Apparently for the reason that in the meantime the proceedings in the Writ Petition as well as in the Writ Appeal were pending, no action would appear lo have been taken by the Government to notify that the Panchayat Unions which were actually functioning in the added territories had no legal existence. Acting u/s 16 of the Representation of the People Act, 1951, a notification has been promulgated on March 9, 1964, calling upon the Chingleput Local Authorities Constituency to fill up the single seat which they were entitled to fill up in the Madras Legislative Council. According to this notification, election was to take place before April 16, 1964. March 16, 1964, was, therefore, fixed for the filing of nominations and March 18, 1964, for scrutiny thereof, the last date for withdrawal of nomination being March 21, 1964. April 11, 1964, was fixed as the date for poll. On March 25, 1964, the first Respondent issued notice to the Petitioner and certain other persons, asking them to show cause why their names should not be excluded from the Electoral roll of the Chingleput Local Authorities. Constituency on the ground that they were not members of a Local Authority. After considering the explanation submitted by the Petitioner on April 1, 1964, and also after giving him an oral hearing, the first Respondent made the impugned order.

Mr. V.P. Raman for the Petitioner argued on the first point, that the first Respondent has no power to make the deletion of the Petitioner''s name. In support, learned Counsel refers to Sections 22 and 27(2) of the Representation of the People Act, 1950, and argues that the special provision u/s 27(2)(d) excludes the application of Section 22, so that the first Respondent; could not delete the name of the Petitioner without a report from the Chief Executive Officer of the Local Authority. Section 22 relates to correction of entries in Electoral Bolls and entrusts the power to the Electoral Registration Officer for a constituency. He can exercise the power to, correct on application or suo motu. The grounds on which he can exercise his power are also specified in Section 22 which are where any entry in the Electoral roll is erroneous or defective in any particular or where it should be deleted on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll. The section also contemplates that the Electoral Registration Officer shall exercise the power subject to such general or special directions as may be given by the Election Commission in that behalf. The proviso to this section provides for the procedure to be followed by the Electoral Registration Officer while acting u/s 22. Section 22 by itself is related to the roll of the Assembly constituencies. So far as Electoral rolls for Council constituencies are concerned, Section 27 provides for their preparation. Sub-section (2) of Section 27states, so far as is relevant for present purposes: For the purpose of elections to the Legislative Council of a State in any local authorities constituency:

(d) in order to enable the electoral registration officer to maintain the electoral roll corrected up-to-date, the chief executive officer of every local authority (by whatever designation such officer may be known) shall immediately inform the Electoral Registration Officer about every change in the membership of that local authority; and the Electoral Registration Officer shall, on receipt of the information, strike off from the electoral roll the names of persons who have ceased to be, and include therein the names of persons who have become members of that local authority;....

With reference to this provision, the argument for the Petitioner is that, since Sub-section (2)(i) of Section 27 makes a special provision as to striking off of the name of a person from the electoral roll relating to the Council constituencies, this power excludes the general power u/s 22 which is attracted even in respect of Council constituencies by Sub-clause (e) of Sub-section (2) of Section 27. It seems to me that the argument proceeds, on an incorrect appreciation of the relevant provisions in the two sections. Clause (d) of Sub-section (2) of Section 27 applies to a particular contingency namely, when the Chief Executive Officer of a local authority finds any change in the membership of the local authority, he makes a report, on the basis of which the electoral roll is corrected and made up-to-date by the Electoral Registration Officer. This provision does not cover the entire field of grounds which call for alteration of the electoral rolls relating to the Council constituencies by deletion of names. That in itself will be sufficient to answer the point that a special power is provided for u/s 27(2)(d) which, therefore, excludes the general power u/s 22. But the point for the Petitioner loses all its force when reference is made to Section 27(2)(e). That provision expressly attracts the whole of Section 22 and make that section applicable to the preparation and alteration of rolls for Council constituencies.

Another argument, based on section 22 read with Section 27(2)(e) is, that the Petitioner''s case is not one which falls under anyone of those grounds specified in that section. I am unable to appreciate this ground. The first ground mentioned by Section 22 is that the entry in the electoral roll is erroneous or defective in any particular. If a person''s name is found in the electoral roll for Council constituencies and he is not a member of any local authority, it is obvious that the entry is erroneous. It may even be described as defective in that sense. This ground will, therefore be available to the Electoral Registration Officer to delete the person''s name from the roll. I am also of the opinion that ground (c) in Section 22 can also be invoked by him where the person concerned, whose name appears in the roll, is not a member of a local authority. This clause appears to be a residuary one as appears from the concluding words, namely, is otherwise not entitled to be registered in that roll. It is argued that these words should be read ejusdem generis with the words preceding. I do not think that this construction is sound. The intention of the Legislature in providing Clause (c) in those words appears to be that the ground should cover defects or errors not covered by Clauses (a) or (b) or the first part of Clause (c). I consider, therefore, that there is no substance in the first ground of the Petitioner.

As to the second ground, I have already mentioned of the principle laid down by this Court in the Writ Petition as well as the Writ Appeal arising there out. It is true, as I already mentioned that that principle was laid down with reference to the Pallipet Panchayat Union. But the three areas involved in this petition are in no way different from the area covered by the Pallipet Panchayat Union. Merely because those three areas were not parties to the Writ Petition or the Writ Appeal, it does not follow that the law applicable is in any way different in respect of the status of the Panchayats there constituted under the Madras Village Panchayats Act as in force in the Andhra. Applying the principle of that judgment, it should undoubtedly be held that, like the Pallipet Panchayat Union, the Panchayat Unions in the three areas here in question did not survive and have no legal existence after April 1, 1960. The factual existence, as it is said on behalf of the Petitioner, can make no difference to the legal position that in the eye of law they have no existence If the Panchayats did not exist, a fortiori it follows that the members of the Panchayats, like their Presidents and Vice-Presidents, has also ceased to exist, so far as their offices went. It is however, argued for the Petitioner on the basis of Section 4(2)(d) of Madras Act XXXVIII of 1961, that this statutory provision clearly contemplated that the Panchayats in the areas in question continued to exist even after April 1, 1960. It is true that in Writ Petition No. 1167 of 1961, observations occur which may tend to show that at least the assumption under this statutory provision was that the members of the Panchayat continued to function after April 1, 1960. But it should not be overlooked that what this Court in the petition pointed out was that even on the assumption that the members at the Panchayat should be deemed to continue to hold office up to the specified date, there was no provision particularly made for the continuance of the Presidents of Panchayats in office up to that date. Sub-section (2) of Section 4 commences with the words.

notwithstanding anything contained in the Panchayats Act, on and from the appointed day,

and provides, by Clause (d)

The members of a panchayat holding office on the appointed day shall be deemed to be elected members of the panchayat under the Panchayats Act, as extended by this Act, and such members shall continue to hold office up to the 2nd day of October 1963 or up to sack date at the Government may, by notification, fix in this behalf.

It is plain that this provision to continue the members of a Panchayat holding office on the appointed day in office up to the specified day proceeds on the assumption that Panchayats which were constituted under the law in force in Andhra continued to exist by virtue of the transitional provision in Madras Act XXXV of 1958 even after April 1, 1960, in the transferred territory. This Court, in the Writ Petition and Writ Appeal, has held that that assumption is erroneous. If that be so, as is the case, the provision for continuance of the members of a Panchayat in office without the Panchayats themselves in existence in the eye of law becomes entirely purposeless. As I already mentioned, in the Writ Appeal, the Division Bench even went further and pointed out that even if because of the deeming provision in Section 4(2)(d) the members have to be taken to continue in office after that date, they cannot be regarded as members of a Panchayat, but only as a collection of individuals since the corporate character of the Panchayat has not been kept alive by appropriate Legislative provisions after April 1, 1960. The second ground too fails.

The third ground is rested upon the fact that physically the Panchayats in the three areas in question had been functioning even after April 1, 1960. The argument is that the fact of their existence cannot be overlooked and so long as the Panchayats factually function, it must be taken that its members also continue to function and that unless the Government, in exercise of their Legislative powers, u/s 155 of Madras Act XXXV of 1958 supersede the Panchayats, it would not be said that the Petitioner was not a Panchayat member. I am unable to accept this contention. The Panchayats were allowed to continue in point of fact apparently because of the pendency of the Writ Petition as well as the appeal arising therefrom. Even otherwise, merely because the Panchayats were in point of fact functioning it does not follow that for that reason they have also a legal basis. The question is whether the Panchayats had a right under the law o exist and function. If, as declared by this Court, the law did not continue the Panchayats constituted under the Andhra law, it follows that it could make no difference to the position because the Panchayat have actually functioned. If in the eye of law, the Petitioner is not a member of a local authority, it follows that in law he is not also entitled to have his name as such a member on the rolls of electors relating to the Legislative Council Local Authority Constituency. The first Respondent was entitled to act upon the judgment of this Court in the Writ Appeal and consider that the Petitioner was no longer a member of a local authority after April 1, 1960, and, therefore, his name should be deleted from the rolls, irrespective of the fact whether the Government took any action or not in respect of the factual functioning of the Panchayat Unions in the territory in question. I reject the third, ground as well.

The fourth ground is that it was too late for the first Respondent to have deleted the Petitioner''s name on April 2, 1964. This argument is addressed apparently with reference to the fact that the deletion was made on the eve of the election. It is true the judgment should have been taken note of earlier and the proceedings to delete the Petitioner''s name taken in time. But on that account it cannot be said that the first Respondent was not in order in initiating the proceeding and removing the Petitioner''s name from the roll as on April 2, 1964. The fact in all probability appears to be that it was only on the eve of the election the electoral roll was taken up for revision and on a scrutiny it was found that the Petitioner and certain others had no right to have their names in those rolls as members of a local constituency. I do not think there is any force in the fourth ground.

The result is, the petition fails and is dismissed with costs.

On behalf of the Respondents, I am asked to clarify that the stay granted: by this Court no longer exists in view of the dismissal of the Writ Petition. It is hardly necessary to point out that that certainly is the effect of the dismissal of the Writ Petition.