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TMI Blog1954 (10) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... I should state only my grounds of disagreement on such of his conclusions with which I do not agree. 2. It is now well settled that the right to a franchise is not an absolute one. It has got to be taken in accordance with the statute creating that right. If a right to a franchise has been conferred by statute it must be taken with all the limitations imposed by the statute on the exercise of that franchise. The right to be a voter and to be elected to a Janapada Sabha has been created by the C. P. and Berar Local Government Act (38 of 1948). It came into force on 11-6-1948. Though S. 6 contemplated a Janapada Sabha to consist of elected councillors, sub-s. (5) of that section authorized the Provincial Government how the State Government) to appoint councilors to constitute the first Sabhas. Such councillors were appointed by the Government in July 1943 except in certain cases. Section 12 of the Act contemplates that the normal life of a Sabha shall be five years from the date of its first meeting and that the term of every councilor constituting the Sabha shall be co-terminus with it, But the proviso to that section before its amendment by Act 8 of 1953 contemplated that su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have been with reference to the date 31-3-1954. In view of the fact that by virtue of the very substantial amendments made in the Act by the Amending Act of 1953 (8 of 1953), as a result of which every Sabha has been divided into a rural circle an urban circle the constituency of the urban circle has been materially changed it became necessary to prepare the electoral rolls with reference to the new electoral divisions brought into existence by the Amending Act. 3. So far, there is no difficulty. But I do not agree with my learned brother in his conclusion that the effect of rules made under S. 7(1) is to provide that for every general election a fresh electoral roll has to be prepared that a revision of the rolls was meant only for the purpose of a by-election to a Sabha. It has not been argued before us that the rules framed under S. 7(1) of the Act as to the time and manner of the preparation of the electoral roll are ultra vires of the rule-making power. We have therefore to proceed on the basis that the rules so framed have been validly made. The only question therefore is what is the true construction of those rules. 4. For the first general elections to the Sab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g such enquiry as he thinks fit proper that the application was well founded he shall cause his name to be included in the roll. This provision has been made for a qualified voter to be included in the electoral roll if there has been any mistake by omission of his name from that roll. An electoral roll thus finally published an after the necessary correction:; have been made in accordance with role 6-A shall come into force from the date of republication and shall continue in force for a period of five years 'after which period the roll shall be revised', subject to the proviso 'that the Provincial Government may, by order direct the revision of the roll, in whole or in part, at any time before the expiration of the said period'. Sub-rule (2) of R. 7 further provides that the procedure prescribed for the 'preparation' of the roll shall also apply to each subsequent 'revision' of the roll. 5. The rules thus make a distinction between the preparation of an electoral roll and the subsequent revision of the same, the former applying to the process meant for the first general elect, j.i and the second to all subsequent general ejections, because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to constitute a Sabha by virtue of the provisions of S. 105 of the Act. Upon such a notification the Administrator has to take all necessary action for election and selection of councilors. The councilors thus elected and selected constitute the new 'Sabha'. Taking a hypothetical case, if a 'Sabha' is superseded only after it has functioned for a year and remains under supersession for another year and in the third year the State Government issues a notification under S. 105 for reconstituting the 'Sabha', will it be necessary to prepare a fresh electoral roll because a general election has to be held? In my opinion, the answer is in the negative. The electoral roll already prepared is still in force under R. 7; nor will it be necessary to 'revise' the roll unless the State Government directs such a 'revision' in whole or in part. 7. It would thus appear that the expressions preparation of an electoral roll' and 'revision of an electoral roll' have no particular reference to a general election or to a by-election. Both these processes come under S- 7(1) of the Act, and the Rules framed under the Act make a distinction bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing or revising an electoral roll, has laid it down that such a roll shall be prepared once every five years. That being so, persons attaining the age of 21 years after the 1st of January of the year in which an electoral roll has been prepared have ordinarily to wait for about five years in order to be enrolled as voters. But that does not mean that they have been disfranchised; that only means that they had not qualified for enrolment as voters with reference to a particular date. The rules framed by the Government under its rule-making power thus contemplate preparation or revision of an electoral roll only periodically, that is to say, once in five years, overlooking special cases when such a revision may be ordered even earlier. Hence, it cannot be said' that if a person has to wait for about five years after attaining the age of 21 he has been denied the franchise under S. 7(2) of the Act. 9. I should also say something about the order of this Court in Miscs. Petn. No. 382 of 1953, D/- 8-1-1954 (A), to which I was a party. I entirely agree with my learned Brother that the order of this Court in that case was never meant to be a precedent. The application in that cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... desh, excepting places where they were stayed by the order of this Court. It is further necessary to refer to the course of events which occurred after the passing of the aforesaid Act. 14. The Local Government Act received the assent of the Governor of the C. P. and Berar on 30-5-1948. It came into force on 11-6-1948. On 1-7-1948, the first Janapadas came into being. They were constituted under S. 6(5), of the Act which runs as follows: Notwithstanding anything to the contrary contained in sub-sections (1), (2) and (3) the councilors of a Sabha constituted for the first time shall be appointed by the Provincial Government from amongst persons residing in the Janapada area and not disqualified for being a councillor under section 10. In the proviso to S. 12 (1), of the Act, as it was originally passed, the term of Janapada Sabha constituted under sub-sec. 5, of S. 6, was to be for such period as the Provincial Government may by notification appoint. Under this provision the term of the first Janapada Sabha constituted was to be for a period of one year only, but the term was extended by the Government from time to time in exercise of their powers under the aforesaid provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereof and be qualified to be a voter for the purpose of electing councilors from that circle. The duty to prepare electoral rolls was not expressly cast on the Chief Executive Officer by the section as it stood before its amendment but only by R. 1 (1), of the Rules framed under S. 182 (2), (IV). By virtue of amendment of S. 7, the duty is cast on the Chief Executive Officer by the Act itself to prepare the electoral rolls in accordance with the rules made by the State Government under S. 182. 16. By sub-rule (1) of R. 1, of the aforesaid Rules the Chief Executive Officer of the Sabha is required to start the preparation of an electoral roll for each electoral division in the rural circle six months before the date on which the term of the Sabha is due to expire. The first rolls for the electoral divisions were prepared in June 1951. They were with reference to 1-1-1951, as the qualifying date. Eventually they were corrected with reference to 1-1-1952 as the qualifying date and published in the manner laid down in the Rules. 17. Subsequent to the publication of the rolls, several provisions of the Local Government Act were substantially amended. Section 3 (1) of the Act pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts intention: (a) to alter the limits of a Janapada by including within it any local area in the vicinity of the same or by excluding from a Janapada any local area comprised therein; or (b) to amalgamate two or more Janapadas and constitute one Janapada in their place; or (c) split up a Janapada and to constitute two or more Janapadas in its place. (2) Every such notification shall define the limits of the local area which is intended to be included in or excluded from a Janapada, or of the area of the Janapada intended to be amalgamated into one, or of the area of each of the Janapada intended to be constituted after splitting up an existing Janapada, as the case may be. 3B(1). Any inhabitant of the Janapada or the Janapadas concerned may, if he objects to anything therein contained, submit his objection in writing to the State Government within sixty days from the date of the publication of the notification, and the State Government shall take his objection into consideration. (2) When sixty days from the date of the publication of the notification have expired and the State Government has considered and passed orders on such objections as may have been submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding Durg, Hoshangabad and Bilaspur, were altered. By notifications published in the official Gazette the State Government have in the case of most of the Janapadas to which the present petitions relate taken away some villages from their limits and transferred them to other Janapadas. Similarly, they have incorporated into them villages from other Janapadas. Further, the number of electoral divisions in some Janapada areas has altered as also the composition of several electoral divisions. The result of these alterations is, according to the petitioners, that the rolls originally prepared have become obsolete and therefore no elections could be properly held on their basis. It is pointed out that by holding elections on the basis of those electoral rolls a large number of voters have been deprived of the right to vote at the elections as their names could not find place in the electoral rolls either because the villages in which they resided were not within the limits of a particular Janapada when the rolls were prepared or because they had not attained the age of 21 on 1-1-1952 though they had attained that age on 1-1-1953. For these reasons the petitioners contend that the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere are substantial grounds for interference. In the first place, the point which has been raised is of a fundamental character and affects a large number of election disputes. In such a case it would avoid conflict of decisions and consequent uncertainty of law or the legal position if an authoritative decision is given by the highest tribunal in this State. Secondly, these very questions were argued before this Court at least on two previous occasions on which two different views were taken and it is necessary for this Court to express itself again and say finally which of the two views is correct. Finally, I may point out that though the respondents had raised a preliminary objection as to the tenability of the petitions we heard counsel on the merits of the petitions for several days. The time spent on this case will have been wholly wasted if we were to say now, in all solemnity, that another remedy being open to the petitioners we would not interfere though we are in fact satisfied that their grievance is correct. 24. Before leaving this point it is necessary to refer to certain paints urged by Shri Hazarnavis. He said that the right given to the voters is only to claim da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tually been prepared. After the amendment, two electoral rolls had to be prepared for each Janapada area, one for the rural circle and another for the urban circle. Such rolls could only be prepared after following the procedure laid down in the rules made by the State Government under S- 182(2) (iv) of the Local Government Act. Despite the amendment no such rolls have yet been prepared. 29. The first rule reads thus: 1(1) The Chief Executive Officer of a Sabha shall 'unless otherwise directed by the Provincial Government,' start the preparation of an electoral roll for each electoral division in the rural circle six months before the date on which the term of the Sabha is due to expire, (underlining (here in'') is mine). (2) Every such roll shall contain the names of all persons who appear to be entitled to vote in the electoral division for which the roll is under preparation. Reliance is however placed on behalf of the respondents on the words unless otherwise directed by the Provincial Government occurring in sub-rule (1) of R. 1. It is said that there was a specific direction by the State Government not to prepare a fresh roll and that the omissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver said that R. 7(1) clearly shows that after a roll is prepared under R. 1 and finally published under R. 6 it can only be revised and that too after five years. No doubt, sub-rule (1) of R. 7 says that an electoral roll republished under R. 6 will continue in force for a period of five years from the date of its republication. This provision however must be read subject to the provisions of R. 1(1), otherwise those provisions would be defeated. It can not be assumed that the State Government in framing R. 7(1) intended to defeat not only the rule made by it but also the provision of the statute. Thus interpreted, the electoral roll republished under E. 6 will continue in force for five years unless in the meantime the term of the Sabha- is due to expire in which case a fresh electoral roll should be prepared within six months of the date' on which the term of the Sabha is due to expire. 33. It is no doubt true that sub-rule (1) of R. 7 provides that after the expiry of five years the rolls shall be revised. It is argued on the basis of this that that is the only thing which can be done on the expiry of rive years and that no fresh rolls need be prepared even after the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te on which the term of the Sabha was due to expire. The provision does not seem to give any discretion to the Chief Executive Officer and consequently I cannot accept the argument that the provision is not a rigid one. 37. The other arguments advanced before us were similar to those advanced in AIR 1955 NUC 148 Nag (B), and since I was a party to the judgment I take the liberty of quoting freely from what was said in that case: We would also like to point out that the words-'unless otherwise directed by the Provincial Govt. (State Govt.)' occurring in sub-r. (1) of R. 1 qualify the words 'start the preparation of an electoral roll for each electoral division in the Janapada area six months before the date on which the term of the Sabha is due to expire.' That is to say, the State Government can direct the Chief Executive Officer to prepare electoral rolls at any time before the date on which the term of a Sabha is due to expire but they cannot direct him 'not' to prepare a roll at all. As we read sub-rule (1) of R. 1, there is no power in the State Government to dispense with the preparation of a fresh electoral roll for holding a general election for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res this to be done. It must however be inferred from these provisions that such a revision is essential. Again, S. 7(2) in express terms confers a right on every person residing in a rural circle who has attained the age of 21 years on the 1st of January in the year in which the electoral roll for the circle is prepared to have himself enrolled in that roll. True, under R. 7 a roll once prepared is good for five years but that provision only relates to by-elections and does not exempt the Chief Executive Officer from complying with the provisions of R. 1 which requires him to prepare fresh rolls six months prior to the date on which the term of a Janapada is due to expire. The right conferred by R. 7 (2) cannot be defeated or taken away by any action or inaction on the part of the Chief Executive Officer, the State Government or any other authority. The Government have undoubtedly been given a power to alter the limits of the Janapada area and electoral divisions but no power has been conferred upon them to take away the franchise of the persons who are entitled to vote during the elections. The condition precedent to the exercise of the franchise by a person is the inclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to reason that where the composition of a constituency undergoes a modification the preparation of a fresh electoral roll becomes essential even though under R. 7(1) a roll once prepared is to hold good for five years. That rule, where it applies, must relate to the roll in respect of the constituency as it existed on the date of the publication under R. 3. If the roll prepared was with respect to a constituency having a particular composition, it cannot be regarded as the electoral roll for a constituency bearing the same name but having a different composition. It was then urged on behalf of the respondents that after the alteration of the limits of a Jainabad area or an electoral division, the names of the voters were transferred from one area to another and that every person whose name was already on an electoral roll could exercise his franchise even though not necessarily in the same electoral division, or in the same Janapada area, and could elect a councillor. The learned counsel for the respondents was however' unable to point out any provision in the Act or rules under which the Chief Executive Officer could transfer voters from one roll to another. Indeed, such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will, hold good for the new Janapada. He said that this inference is clear, in particular from the provisions of S. 3C. I have reproduced S. 3C earlier and now I would proceed to examine this provision in detail. 39. Section 3C (I) (a) provides that the Sabha existing on the date of the alteration of the limits shall be deemed to be the Sabha constituted under the Act for the altered area. Further according to this provision, the councilors holding office on the date of the alteration shall be deemed to be the councilors of the new Sabha subject to the provisions of Cls. (b) and (c) of sub-sec. (1). Clause (b) says that where on the alteration of the limits of a Janapada certain area is excluded there from and included in another Janapada, the State Government shall determine to which Sabha' the councillors representing such area shall belong. In determining this, the State Government is required to determine two principles. The first is that where the area concerned forms one or more whole electoral divisions, the councillor representing every such division shall be assigned to the Sabha in which that area is included. The other principle, is that where the area concerned f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Janapada to another and a councillor from one Janapada to another it can also transfer the names from one electoral roll to another. There is no doubt that the Government has been given power to transfer areas from one Janapada to another and one of the consequences of such transfer is that the councilor would under certain circumstances be transferred from one Janapada to mother There is, however, as I have already pointed out, no provision for the transfer of the names of the voters from one electoral roll to another. I am afraid such a consequence cannot be inferred as suggested by the learned Additional Government Advocate. 43. Another argument advanced by him was that all things done before the alteration of the limits were preserved by S. 3A to 31, and therefore the old rolls must also be deemed to be preserved. For one thing, everything that was done before the alteration of the limits of a Janapada is not preserved. In fact, Ss. 3C. 3D, 3E and 3F clearly indicate the contrary. There is thus no room for the presumption that the old rolls were intended to be preserved even where the limits of a Janapada area were altered and in consequence the limits of the constituency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlier were not the foundation of their decision, they must be regarded as 'obiter dicta'. Such 'dicta' cannot be regarded as a precedent binding in subsequent cases. This Court was thus justified in not following them while deciding AIR 1955 NUC 148 (Nag) (B). 46. The rule for determining the 'ratio decided' of a case is stated thus by Professor John Chapman Gray at page 261 in the Nature and Sources of the Law (2nd Edn. 1921) and quoted at page 193 of Jurisprudence in Action: It must be observed that at the Common Law not every opinion expressed by a Judge forms a Judicial Precedent. In order that an opinion may have the weight of a precedent, two things must concur: it must be, in the first place, an opinion given by a judge, and, in the second place, it must be an opinion the formation of which is necessary for the decision of a particular case; in other words, it must not be 'obiter dictum',. Allen in his Law in the Making has set out at page 227 certain well-recognized principles of interpretation which have been accepted by the Courts in England. of the five principles set out by him, the second is as follows: Any judgment of any C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stinguish for himself between what was and what was not essential to the prior decision. In Misc. Petn. No. 382 of 1953, (Nag) (A) the learned Judges clearly came to the conclusion that the petition had to be dismissed on preliminary grounds. The question relating to the failure of the Chief Executive Officer to prepare fresh electoral rolls was argued before them and they therefore expressed their opinion on that question also. While the opinion which they expressed on that question is certainly entitled to respect, it cannot, clearly be treated as a binding precedent because it was not made the foundation of their decision. Reading the order of the learned Judges it would appear that the view taken by them on the question of the omission to prepare fresh electoral rolls was not expressed by them as an additional ground for dismissing the petition. Indeed, it would appear that the petition was dismissed by them on the preliminary grounds set cut by them in paragraph 10 of their order and not on merits. 47. It is also pertinent to mention that Misc. Petn. No. 382 of 1953 (Nag) (A), was dismissed summarily. No doubt, the petitioner's counsel did address an argument before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der S. 7 (1) of the Act read with the Rules framed thereunder to prepare fresh electoral rolls and publish them after the Durg Janapada Sabha was reconstituted, he failed to prepare such rolls and consequently the election held for the Godhi constituency was void. In my opinion, the petitioners should be allowed to urge this ground because it is of a fundamental character. 51. Upon the view I have taken on the point, the petition must be allowed with costs, the election of the respondent No. 2 set aside and a fresh election ordered to be held after due preparation and publication of the electoral rolls for the Godhi constituency. Miscellaneous Petition No. 116 of 1954: 52. The petitioner is a voter in the electoral division Kotmi of Sakti Janapada Sabha and also a candidate for the Janapada election from Dhurkot electoral division. According to the petitioner, the Janapada area of this Sabha was formed after the amendment of the Local Government Act by amalgamation of some villages of the former Sakti State with some villages from Janjgir tahsil of the Bilaspur district and some villages from Kharsia tahsil of the Raigarh district. The Janapada Sabha, Sakti. was divided in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the Chief Executive Officer. Here, as in the other case, the persons elected have not been joined as parties and therefore no order adverse to them can be passed behind their backs. In my opinion, therefore, this petition must be dismissed with costs. Miscellaneous Petition No. 20 of 1954. 57. The petitioner Premshankar was a voter in the Gondalwada Constituency and is challenging the election thereto of the respondent No. 3. Being a voter he has sufficient interest to maintain the petition. The only point which is common to this petition and the other petitions is that though the term of the Hoshangabad Janapada Sabha was due to expire on 31-3-1954, the preparation of the electoral roll was not undertaken within six months of this date. On this point my view is, as already stated above, that sub-rule (1) of R. 1 of the Rules framed under S. 182 (2) (iv) of the Act casts a duty on the Chief Executive Officer to start the preparation of an electoral roll for each electoral division in the rural circle six months before the date on which the term of the Sabha is due to expire. In his return the Chief Executive Officer has stated that though the preparation of rolls was com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad, sent a letter to the Chief Executive Officer, Janapada Sabha, pointing out that certain forest villages were not included in the electoral divisions and asked him to include those villages in the appropriate divisions and publish the voters' list of those villages only. The Chief Executive Officer, however, is said to have published the entire electoral roll of the Seoni-Malwa Janapada on 31-8-1952 and to have invited objections thereto. According to the petitioner, Many persons lodged objections that they were improperly left out from the roll. These objections were decided by the Chief Executive Officer and by the Deputy Chief Executive Officer respectively. About 300-400 persons were included in the list of voters.... The roll was therefore re-published on 16-10-1952. This roll will hereafter be referred to as the third electoral roll. According to the Janapada Sabha, if the elections were held on the basis of the third electoral roll, they will be vitiated because the preparation of that roll was affected by various illegalities. The Janapada Sabha therefore made a reference to the Chief Executive Officer but he refused to take any action. They then made a petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all that I have stated earlier that it was after the final publication of the second electoral roll that the Deputy Commissioner required the Chief Executive Officer to publish a fresh voters' list of certain forest villages which were not included in the electoral divisions, the rolls of which had already been published. Upon receiving the Deputy Commissioner's memorandum, the Chief Executive Officer published the entire roll on 31-8-1952 inviting objections thereto and after deciding them, republished the mil on 16-10-1952. As a matter of fact, the rolls of only four constituencies already mentioned were affected. I must therefore confine my attention to those constituencies. It is admitted on behalf of the State that some voters' names were added to the roll of each constituency on the incorporation of the forest villages in them. When names are added or taken away from a roll, that roll must be deemed to have been in fact revised. Such revision could take place only after complying with the proviso to sub-rule (1) of R. 7. Here, as already pointed out, action was taken on the direction of the Deputy Commissioner alone. The revision of the roll was thus unauthorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be held thereafter. A reference is made to the electoral rolls in S. 3C and other provisions only for a limited purpose and that is for determining the Janapada to which the existing councillor is to belong. There is no connection between this and the elections to be held in future for filling a particular constituency. 68. A further argument advanced by the learned Additional Government Advocate was that even where a new electoral division is added to a Janapada area there is no need to prepare an electoral roll for it. This is indeed an extreme argument and the short answer to it is that reading S. 7(1) along with R. 1(1) framed under S. 182(2)(iv) of the Act it is manifest that a duty is cast on the Chief Executive Officer of every Sabha to prepare a separate electoral roll for each electoral division. Thus, where an electoral division has been newly added to a Jana-pada area, occasion may arise immediately thereafter for the preparation of an electoral roll in respect of it and that obligation has to be discharged by the Chief Executive Officer of the Janapada Sabha to which that division has been added. 69. On this point Sari Hazarnavis after referring to S. 3C(1)(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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