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TMI Blog1990 (7) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... on papers was 3.00 p.m. on 3.6. 1988. According to the appellant s case, a decision was taken by the Chitradurga Zilla Parishad in its special meeting held on 28.5. 1988 to nominate two members from each Mandal Panchayat, that is, a total number of 242 members. Accordingly, steps were taken under the provisions of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as the Parishads Act) read with the rules framed thereunder, and 242 members were duly nominated in time to be included in the electoral roll. This has been denied by the election petitioner-respondent no. 1, as also some of the respondents who contested the election. According to their case, the inclusion of the names of the nominated members in the electoral roll took place after the period for nomination was over and they were, therefore, not included in the electoral roll in the eye of law. The main question in the case which thus arises is as to whether the names of the 242 nominated members were included in the electoral roll within the time permitted by the law. The Deputy Commissioner, who was impleaded in the election petition as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of term of Office (1) The term of office of the members elected at a general election or at a second election held under sub-section (7) of section 5, or nominated shall commence on the date immediately after the expiry of the term of office of the outgoing members of the Mandal Panchayat or the period of appointment of an Administrative Committee or Administrator under section 8, or on the date of publication of their names under sub-section (9) of section 5, whichever is later. The manner of publication of the names has been prescribed by r. 73 of the Parishads Rules in the following terms: 73. Publication of names of members elected or nominated to Mandal Panchayat.--The Deputy Commissioner shall, as soon as conveniently may be, publish the list containing the names of the members elected or deemed to have been elected or nominated to the Mandal Panchayat by causing such list to be affixed on the notice board of his office, office of the Tahsildar, concerned Mandal Panchayat and in the Chavadi. With a view to complete the nomination, the Deputy Commissioner sent out the names for affixing the same on the notice boards of the office of the concerned Tahsildar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Deputy Commissioner s office on 1.6.1988. However, that did not complete the process of nomination. The provisions of s. 40(1) of the Parishads Act make it abundantly clear that a nominated person would become a member of the Panchayat only after due publication of his name in accordance with r. 73. It was therefore necessary to have the names of the nominated persons affixed on the notice board of the office of the Tahsildars, the notice boards of the Mandal Panchayats and in the Chavadis. Mr. Bhandare is right that in view of the Explanation to s. 40(1) it was not necessary for the Deputy Commissioner to have waited for the information in this regard from all the places. On his satisfaction that the publication of 2/3rd of the total number of the names were complete, he was free to proceed further and to revise the electoral roll under the Representation of the People Act, 1950 by including all the nominated members. But the question is as to when the Deputy Commissioner did receive the information about the 2/3rd of the total number, and further whether he, as a matter of fact, revised the electoral roll before 3.00 p.m. on the 3rd of June, 1988. It is significant to note tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion from the Taluk Office of certain places were received on 4.6.1988. In his cross-examination the Deputy Commissioner stated that on the basis of his records he could say that he had received reports from 5 Taluk Offices only on 1.6.1988, and none from the Mandal Pancnayats; and on 2.6.1988 he had received reports about the publication in the Mandal Panchayats from 2 Taluks. As there were only 9 Taluks in his district, it can be presumed that information about the publication of 2/3rd number at Taluk offices had reached the Deputy Commissioner by the evening of the 2nd June, 1988. However, there does not appear to be any relevant evidence available on the records, and none has been shown to us by the learned counsel, with regard to the publication of the requisite number of names in the Mandal Panchayat offices and in the Chavadis. It has been contended on behalf of the appellant that since the burden is on the election petitioner to prove such facts which may vitiate the election, he must fail in the present state of evidence. Before adverting to this aspect we propose to consider the other evidence relating to the revision of the electoral roll. 7. The electoral roll was pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his reply. Being under that wrong impression he was not in a hurry to take the decision in regard to the revision of the electoral roll quickly. The election petitioner, P.W. 1, was himself not a candidate but was an active supporter of one of the candidates and was seriously involved in the question of the revision of the roll, and, as stated in his evidence, the publication of the names under r. 73 of the Parishads Rules was complete by 3.6.1988 only in some of the Mandal Panchayats. After the deadline at 3.00 p.m. on 3.6.1988 was crossed an application, which has been marked as Annexure R-III , signed by the Secretary, District Janata Party, was given to the Deputy Commissioner asserting that no further additions or deletions in the electoral roll were permissible and an endorsement to that effect should be made by the Returning Officer. The Deputy Commissioner did not immediately give his reply thereto. The parties were also insisting for the publication of the electoral roll in its final shape. According to the further evidence of P.W. 1, the Deputy Commissioner promised them that he would contact the Chief Electoral Officer at Bangalore by telephone and only thereafter he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eply: The Deputy Commissioner issued direction for the inclusion of the name of Respondents 3 to 246 on 3-6-1988 and the electoral roll for Local Authorities Constituency has been up-dated and a copy pasted in the office on 3-6-1988 at 8-55 P.M. A plain reading of the above statement suggests that both the updating of the electoral roll and pasting a copy thereof took place on 3.6. 1988 at 8.55 p.m. The statement cannot be interpreted to mean that the revision of the electoral roll had been done about 6 hours earlier. The circumstances that (i) the Deputy Commissioner was not able to assert in his evidence before the Court that the revision of the roll had taken place before 3.00 p.m.; (ii) he was under an impression that the revision was permissible till the midnight; and (iii) in spite of the available documents to him he was not in a position to assert that the report of publication of the names of 2/3rd or more of the nominated persons in the offices of the Mandal Panchayats had been received in his office before the deadline, strongly support the case of the election petitioner. 9. It has been contended on behalf of the appellant that the burden to prove that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and the appellant appealed before this Court by special leave. One of the questions considered by this Court was as to the effect of the order in writing by the Revenue Minister, Pepsu, recommending reversion of the appellant in place of his dismissal. For the reasons, mentioned below, the Court held that the order of the Revenue Minister was of no avail to the appellant. Thus it is of essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communi cation the order cannot be regarded as anything more than provisional in character. 11. As has been pointed out earlier, the evidence of the appellant that he had actually seen the final voters list in the office of the Deputy Commissioner must be rejected as unreliable. There is no acceptable evidence at all to show as to when the alleged corrections were made in the voters list. At 8.55 p.m. on 3.6.1988 the inclusion of the names was made public f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus: There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various process. Whether law is viewed from the standpoint of the conscientious good man seeking to abide by the law or from the standpoint of Justice Holmes s Unconscientious bad man seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known. It was further observed that unlike Parliamentary legislation which is publicly made, delegated or subordinate legis lation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary and it was, therefore, necessary that subordinate legislation in order to take effect must be published or promulgated in some suitable manner whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation- The decision instead of helping the appellant is clearly against him. 14. The vital difference between an Act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pected to be aware of the notification was rejected. While discussing the arguments addressed in the case, the Court appreciated the criticism of Prof. C.K. Allen against the judgment in Johnson v. Sargant, but there was no comment or suggestion against the correctness of the judgment in Harla v. The State of Rajasthan. On the other hand, the observations at page 163-G -H are on the same lines. It was stated that where there is no statutory requirement as to the mode or form of publication, we conceive the rule to be that it is necessary that it should be published in the usual form i.e., by publication within the country in such media as generally adopted to notify to all persons concerned the making of the rules. Having regard to the nature and purpose of the power for rectification of the electoral roll by the Electoral Registration Officer, the principle enunciated in the abovementioned cases must be held to be applicable. We accordingly hold that in the eye of law the electoral roll in question was not modified by the inclusion of the names of the nominated members before 8.55 p.m. on 3.6.1988. We, therefore, affirm the decision of the High Court and dismiss the appeal with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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