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Attorney(S)
  • P.B. Burman
  • Ranjit Kumar Ghose
  • Manan Kumar Ghose
  • Mrinal Kanti Ghose Chowdhury
Judges
  • R.S Bachawat
  • R.N Dutt, JJ.
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Attorney(S)
  • P.B. Burman
  • Ranjit Kumar Ghose
  • Manan Kumar Ghose
  • Mrinal Kanti Ghose Chowdhury
Judges
  • R.S Bachawat
  • R.N Dutt, JJ.
Acts
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Smart Summary

Structured Summary of the Opinion delivered by Bachawat, J. (with concurrence by R.N. Dutt, J.)

Factual and Procedural Background

This revision concerns challenges to the elections of the petitioner as (a) a member of the Sarvamangala (Sarbamangala) Gram Panchayat and (b) a member of the Basaria (Basuria) Anchal Panchayat under the West Bengal Panchayat Act, 1956. The election tribunal set aside both elections on the ground that the petitioner was not a citizen of India (order dated 15th March, 1961, as reported in the opinion).

The opinion reports that the election took place on December 10 and 11 (the opinion contains references both to December 1961 and, in the later concurring memorandum, to December 1960). The petitioner's name had been entered in the finally published electoral roll of the West Bengal Legislative Assembly for the area of the Gram Sabha without objection at the time of publication.

Relevant personal facts stated in the opinion: the petitioner was born in territory of India; in 1948 he migrated to the territory now included in Pakistan, married and settled there for more than ten years; in 1958 he returned to India as a Pakistan national on a Pakistani passport for temporary stay under a 'C' visa and has been living in India since then. The tribunal found (and the court accepts) that because the petitioner migrated after 1 March 1947 and before the Constitution came into force, Article 7 of the Constitution applies and he must be deemed not to be a citizen of India under the Constitution.

Procedurally, after the elections the opposite party applied under Section 117 of the Panchayat Act read with Rule 30 of the Rules framed under the Act to set aside the petitioner's election; the Sub-Divisional Magistrate acting as Election Tribunal set aside the petitioner's elections on the citizenship ground; the present rule challenges that tribunal order.

Legal Issues Presented

  1. Whether an election as member of a Gram Panchayat or Anchal Panchayat can be set aside by an election tribunal on the ground that the candidate is not a citizen of India.
  2. Whether Section 9(2) of the Citizenship Act, 1955 (describing the authority with exclusive jurisdiction to determine whether a citizen of India has acquired citizenship of another country) bars the election tribunal from determining the petitioner's citizenship status.
  3. Whether the inclusion of the petitioner's name in the electoral roll of the State Legislative Assembly (and the statutory provision that Gram Sabha consists of those whose names are in that roll) meant that the petitioner was automatically a member of the Gram Sabha and therefore eligible for election irrespective of his citizenship.
  4. Whether an electoral roll prepared under the Representation of the People Act, 1950 is conclusive for purposes of constitution of the Gram Sabha when the alleged defect concerns a disqualification under Section 16(1)(a) (not being a citizen of India).

Arguments of the Parties

Petitioner's Arguments

  • The petitioner relied on Section 9(2) of the Citizenship Act, 1955 to contend that the election tribunal lacked jurisdiction to determine whether he had acquired the citizenship of Pakistan and therefore could not decide the citizenship question which would disqualify him.
  • The petitioner argued that because his name was entered in the finally published electoral roll of the West Bengal Legislative Assembly pertaining to the area of the Gram Sabha, he automatically became a member of the Gram Sabha under Section 7 of the West Bengal Panchayat Act, 1956, and was therefore eligible for election to the Gram Panchayat and Anchal Panchayat under Sections 11 and 26; the absence of any express mention of non-citizenship in Section 15 meant that not being a citizen was not a disqualification for those offices.
  • The petitioner relied on the decision of Sinha J. in Ajit Kumar Chatterjee v. Electoral Roll Registration Officer (64 Cal WN 205) where the electoral roll prepared under the Representation of the People Act was held to be conclusive for such purposes (the petitioner urged that principle here to prevent the tribunal from going behind the roll).

Opposite Party / Election Tribunal Position (as reported)

  • The opposite party challenged the petitioner's election on the ground that he was not a citizen of India; the Election Tribunal found the petitioner not to be a citizen (applying Article 7 of the Constitution) and set aside the elections under Section 117 read with Rule 30.
  • The Election Tribunal proceeded on the basis that a person who was not a citizen of India was disqualified from being included in the electoral roll under Section 16(1)(a) of the Representation of the People Act, 1950; that the electoral roll was not conclusive in the case of a person prohibited from voting; and therefore the tribunal could go behind the electoral roll to determine that the petitioner's name had been wrongfully included.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Akbar Khan Alam Khan v. Union of India, (1961) 2 SC 649 : AIR 1962 SC 70 That Section 9(2) of the Citizenship Act, 1955 does not bar the jurisdiction of a civil court to determine citizenship issues. The Court relied on this decision to reject the petitioner's contention that Section 9(2) ousted the election tribunal's power to determine whether the petitioner had been a citizen of India.
State of Andhra Pradesh v. Abdul Khader, (reported reference in opinion) Referenced in support of the conclusion that Section 9 of the Citizenship Act does not prevent determination of certain citizenship questions by fora other than the exclusive authority described in Section 9(2). Used (in the concurring judgment) to support the view that the Election Tribunal could decide whether the petitioner had at any time been a citizen of India.
Durga Shankar Mehta v. Raghuram Singh, AIR 1954 S.C. 520 Observation that the electoral roll is proof of a person's title to vote but is not conclusive where a person is prohibited from voting by the Constitution or any statute or common law. The Court invoked this passage to show that an electoral roll entry is not conclusive against a claim that a person was disqualified from voting (for example, for not being a citizen).
Ghulam Mohiuddin v. Election Tribunal, AIR 1959 All 357 Supports the proposition that an election tribunal can inquire whether a person listed on the electoral roll is prohibited from voting. Referred to as an authority that an electoral roll is not necessarily conclusive and that the tribunal may consider disqualifications affecting a voter's right.
Petersfield Case, Stowe v. Jolliffes, (1874) LR 9 CP 734 Statement about the English law (post-Ballot Act, 1872) that electoral law principles allow inquiry into qualification despite roll entries. Used illustratively to show that the English position after the Ballot Act aligns with the principle that an electoral roll is not conclusive where disqualification exists.
Re Stepney Election Petition, Isaacson v. Durant, (1836) 17 QBD 54 Authority for the proposition that an alien is subject to incapacity to vote and that such votes are liable to be struck off on scrutiny. Cited to support the general principle that a non-citizen's inclusion or vote may be invalidated on scrutiny.
Ajit Kumar Chatterjee v. Electoral Roll Registration Officer, Bhatar, 64 Cal WN 205 Held that where electoral roll defects related to conditions of registration (age, residence, duplication), the electoral roll prepared under the Representation of the People Act should be regarded as conclusive for constituting the Gram Sabha. The Court distinguished this decision: it involved objections under Sections 17, 19 and 20 (conditions of registration), not a disqualification under Section 16(1)(a) (non-citizenship). Thus Ajit Kumar Chatterjee was not treated as controlling on the citizenship point.
Ataur Rahaman Sardar v. Depu Secretary, Home Department (66 Cal WN 108) (referenced) Referenced as a local decision following the Supreme Court authorities about Section 9 of the Citizenship Act. Cited in the concurring judgment as part of the line of authority supporting that Section 9 does not bar the tribunal from deciding whether the petitioner had ever been a citizen of India.
Allahabad High Court decision (AIR 1959 All 357) (FB) (referenced) Held that the electoral roll should be taken as conclusive when objection is about conditions of registration under Section 19, but distinguished where objection raises Section 16 disqualifications. Used to support the court's distinction between challenges based on Sections 17/19/20 (where roll may be conclusive) and challenges based on Section 16 disqualifications (where roll is not final).

Court's Reasoning and Analysis

The court's analysis proceeded in a sequence of legal points grounded in constitutional and statutory provisions cited in the opinion:

  1. Citizenship and the Tribunal's Finding: The tribunal found that the petitioner migrated to Pakistan after 1 March 1947 and before the commencement of the Constitution; therefore Article 7 of the Constitution applies and the petitioner must be deemed not to be a citizen of India. The court accepted that the tribunal correctly held that the petitioner never acquired citizenship of India under the Constitution and never became a citizen.
  2. Section 9(2) of the Citizenship Act Argument: The petitioner argued that Section 9(2) took away the tribunal's jurisdiction to decide citizenship. The court rejected that contention relying on precedent (Akbar Khan Alam Khan and related decisions) which held that Section 9(2) does not bar civil fora (and by analogy the election tribunal) from determining the issue whether a person was a citizen of India at a particular time.
  3. Whether inclusion in the electoral roll produced automatic Gram Sabha membership and barred inquiry: The petitioner argued that inclusion in the electoral roll made him a member of the Gram Sabha under Section 7 of the Panchayat Act and therefore eligible for election, and he relied on authority (Ajit Kumar Chatterjee) which treated the electoral roll as conclusive in certain contexts. The court treated this contention as turning on whether the petitioner was "included in the electoral roll" within the meaning of Section 7.
  4. Statutory provision on qualification to be registered: The court examined Article 324 (placing electoral roll superintendence with the Election Commission) and Article 326 (eligibility to be registered as a voter requires Indian citizenship), and the detailed provisions of Part III of the Representation of the People Act, 1950 (particularly Section 16 which disqualifies non-citizens from registration and Section 16(2) which requires striking off names of persons who become disqualified).
  5. Electoral roll: proof but not conclusive where disqualification exists: The court relied on precedent (Durga Shankar Mehta and Ghulam Mohiuddin) for the proposition that while the entry in the electoral roll is proof of title to vote, the roll is not conclusive in cases where the person is prohibited from voting by the Constitution or statute. The court emphasized that Section 16(1)(a) disqualifies non-citizens and Section 16(2) mandates striking off the name of a person who becomes disqualified; the court treated the act of striking off as a ministerial act which the court will treat as having been done where it ought to have been done.
  6. Legal effect for Section 7 of the Panchayat Act: Given that a non-citizen is not entitled to be registered in the electoral roll under Section 16(1)(a), the court concluded it is implicit that a person who was not a citizen at the time of registration is to be considered as not included in the electoral roll in law (because the name must be regarded as struck off). Therefore the petitioner was not "included in the electoral roll ... for the time being in force" for the area of the Gram Sabha within the meaning of Section 7 of the Panchayat Act.
  7. Consequence for eligibility and tribunal competence: Because the petitioner was not in law a member of the Gram Sabha, he was not eligible to be elected as a member of the Gram Panchayat or Anchal Panchayat under Sections 11 and 26. The court held that disqualification arising from non-citizenship is a valid ground for setting aside the election and that the election tribunal, acting under Section 117 read with Rule 30, was competent to set aside the elections on that ground.
  8. Distinguishing Ajit Kumar Chatterjee: The court carefully distinguished the Sinha J. decision in Ajit Kumar Chatterjee (64 Cal WN 205) on the basis that that case concerned defects in the roll related to age, residence, or duplication — conditions of registration under Sections 17, 19 and 20 — whereas the present case raised the fundamental disqualification in Section 16(1)(a) (non-citizenship). Because Ajit Kumar Chatterjee did not deal with Section 16(1)(a), it was not controlling on the present citizenship issue.
  9. Concurring memorandum (R.N. Dutt, J.): The concurring judge reiterated that Section 9(2) of the Citizenship Act was not a bar to the tribunal deciding whether the petitioner had ever been a citizen of India, and reiterated that when the objection raises a Section 16 disqualification, the electoral roll is not final and the tribunal may go behind it to determine that a name ought not to have been included.

Holding and Implications

Holding: The court dismissed the rule and held that the election tribunal rightly set aside the petitioner's elections on the ground that the petitioner was not a citizen of India and therefore was not lawfully included in the electoral roll or eligible for election.

Implications (direct effect on the parties):

  • The direct effect is that the election tribunal's order setting aside the petitioner's election to the Sarvamangala (Sarbamangala) Gram Panchayat and the Basaria (Basuria) Anchal Panchayat is upheld.
  • The petitioner is considered not to have been lawfully included in the electoral roll for the purposes of constituting the Gram Sabha and therefore was not eligible for election under the relevant provisions (Sections 11 and 26) of the West Bengal Panchayat Act, 1956.
  • The court ordered that the rule be discharged and that there be no order as to costs.

Broader precedent: The opinion explains and applies existing constitutional and statutory principles (Article 7, Article 326, Section 16 of the Representation of the People Act) and relies on earlier authorities to determine that electoral roll entries are not conclusive where a statutory disqualification (non-citizenship) exists. The court distinguished local authority decisions that treated the roll as conclusive when objections related only to registration conditions (Sections 17/19/20). The opinion does not assert that it is laying down a novel rule beyond applying these authorities to the facts at hand.

Show full summary ...

    Sultan Khan v. Sailesh Chandra Nundy Opposite Party.

    The Judgment of the Court was delivered by

    Bachawat, J.:— This revision case raises the question whether an election as a member of the Gram Panchayat or an election as a member of the Anchal Panchayat constituted under the West Bengal Panchayat Act, 1956 can be set aside by the election tribunal on the ground that the candidate is not a citizen of India. The election of the petitioner as a member of the Sarvamangala Gram Panchayat as also his election as a member of the Basaria Anchal Panchayat have been set aside by the election tribunal on this ground by its order dated the 15th March, 1961. The election took place on December 10 and 11, 1961. The name of the petitioner had then been entered without any objection from anybody in the finally published electoral roll or the West Bengal Legislative Assembly relating to the area of the Sarbamangala Gram Sabha. The petitioner was born in the territory of India; but in 1948 he migrated from the territory of India to the territory now included in Pakistan. He married and settled in Pakistan and lived there for more than ten years. In 1958 he came to India has a Pakistan national with a Pak-passport for temporary stay under a ‘C’ visa and since then he is living in India. As the petitioner migrated from India to Pakistan after the first day of March, 1947 and before the Constitution of India came into force, he must be deemed not to be a citizen of India having regard to Article 7 of the Constitution. The election tribunal rightly held that the petitioner never acquired the citizenship of India under the Constitution an that he never became a citizen of India.

    2. The contention of the petitioner that the jurisdiction of the election tribunal is taken away by Section 9(2) the Citizenship Act, 1955 is unsound and must be rejected In Akbar Khan Alam Khan v. Union of India, (1961) 2 SC 649 : (AIR 1962 SC 70) the Supreme Court held that S. (2) of the Citizenship Act, 1955 does not bar the jurisdiction of a civil court to determine this issue. Likewise the power of the election tribunal to decide the issue is do taken away by the section. On behalf of the petitioner it is next contended that he is not disqualified from being elected as a member of the Gram Panchayat and of the Anchal Panchayat by reason of the fact that his election cannot be set aside by the election tribunal on that ground. This argument requires serious consideration. The purpose of the West Bengal Panchayat Act, 1956 is to organize and establish panchayats in rural areas of West Bengal. The Act has been passed in conformity with the directive principle of State policy contained in Article 40 of the Constitution which enjoins that the State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. The Gram Sabha is the primary unit of self government under the Act. Chapter II of the Act deals with Gram Sabha. S. 3 empowers the State Government to constitute Gram Sabha for any area. S. 7 provides for its membership and reads thus:

    “(1) Every Gram Sabha shall consist of all persons whose names are included in the electoral roll of the West Bengal Legislative Assembly for we time being in force pertaining to the area for which the Gram Sabha has been constituted.

    (2) The prescribed authority shall from time to time maintain a list of the names of the persons referred to in sub-sec. (1) and such list shall be the list of members of the Gram Sabha”.

    3. It will be seen that the Gram Sabha is not an elected body. All persons whose names are included in the electoral roll of the West Bengal Legislative Assembly for the time being in force pertaining to the area of the Gram Sabha automatically became members of the Sabha. Chapter III of the Act establishes a Gram Panchayat for every Gram Sabha. The members of the Gram Panchayat are by S. 11(2) elected by the members of a Gram Sabha from amongst themselves. Section 15 sets out the grounds of disqualification of a person for election as a member of the Gram Panchayat. Chapter IV deals with Anchal Panchayats. By S. 25 the State Government is required to establish Anchal Panchayats comprising contiguou's Gram Sabha. Section 26(1) provides that every Anchal Panchayat shall consist of the members elected from among the members of every Gram Sabha within its jurisdiction by the Gram Panchayat concerned, but no member of a Gram Sabha shall be elected to be a member of the Anchal Panchayat if he has any of the disqualifications mentioned in S. 15. It is to be observed that a member of the Gram Sabha is eligible for election as a member of the Gram Panchayat or of the Anchal Panchayat and the fact that the candidate is not a citizen of India is not expressly mentioned in S. 15 to be a disqualification for such election. Large powers of local Self Government and administration are conferred upon the Gram Panchayat and the Anchal Panchayat by Chapters V and VI of the Act. Chapter VIII constitutes Anchal Panchayat and Gram Panchayat funds and confers powers of taxation on the Anchal Panchayat. Chapter IX vests certain public properties in ??? Gram Panchayat. Chapter XI provides for Nyaya Panchayats having judicial powers consisting of Vicharaks ??? by the Anohal Panchayat from among the members ??? the Gram Sabhas and approved by the prescribed authority. Section 117 of the Act read with Rule 30 of the Vest Bengal Panchayat Rules, 1958 provides for determination of disputes as to election as a member of the Gram Panchayat or of the Anchal Panchayat, but the Act and the Rules do not specify the grounds upon which the elections may be set aside.

    4. The contention of the petitioner is that as his name was entered in the electoral roll of the State Assembly pertaining to the area of the Sarbamangala Gram Sabha he became a member of the Gram Sabha automatically by virtue of Section 7 of the West Bengal Panchayat Act, 1958 and as he was a member of the Gram Sabha he was eligible for election as a member of the Gram Panchayat and of the Anchal Panchayat by virtue of Sections 11 and 26 of the Act and the fact that he is not a citizen of India is not a disqualification for such election under Section 15 of the Act or otherwise.

    5. The point in issue is whether the name of the petitioner was “included in the electoral roll of the West Bengal Legislative Assembly for the time being in fores pertaining to the area for which the Gram Sabha has Been constituted” within the meaning of Section 7 of the West Bengal Panchayat Act, 1956. If the answer be in the affirmative, the petitioner would be a member of the Gram Sabha and would be eligible for election as a member of the Gram Panchayat and of the Anchal Panchayat. On the other hand if the answer be in the negative, the petitioner would not be a member of the Gram Sabha and would not be eligible for election as a member of the Gram Panchayat or of the Anchal Panchayat and his election would be liable to be set aside. Now by Article 324 of the Constitution the superintendence, direction and control of the preparation of the electoral rolls for election to the State Legislature Assembly is vested in the Election Commission. Article 326 of the Constitution declares that the election to the State Legislative Assembly shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than twenty one years of age and is not otherwise disqualified under the Constitution or any law on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice shall be entitled to be registered as a voter at any such election. Part 111 of the Representation of the People Act, 1950 provides for the preparation and revision of the electoral rolls of the State Legislative Assembly and for correction of entries and inclusion of names in those rolls. Section 16 of that Act which enumerates the disqualification for registration in an electoral roll is as follows:

    (16)(1) — “A person shall be disqualified for registration in an 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 for the time being disqualified from voting under the provisions of any, law relating to corrupt * * * practice and other offences in connection with elections.”

    16(2) — “The name of ??? 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 of a constituency by reason of a disqualification under clause (c) of sub-sec. (1) shall forthwith be re-instated in that roll if such disqualification is, during the period such roll is in fores, removed under any law authorizing such removal”.

    6. Sections 17 and 18 of that Act provide that no person shall be entitled to be registered in the electoral roll for more than one constituency or in the electoral roll for any constituency more than once. Section 19 provides for the conditions of registration and enacts that every person who (a) is not less than twenty one years of age on the qualifying date and (b) is ordinarily resident in a constituency shall be entitled to be registered in the electoral roll for that constituency. Section 20 gives the meaning of “ordinarily resident”. The electoral role must be prepared in accordance with the provisions of Ss. 16 to 20 and no person can be registered as a voter in the electoral roll in contravention of those sections.

    7. The entry of the name of any person as a voter in the electoral roll so prepared and maintained is proof of the title of the person to vote at the election nevertheless the electoral roll is not regarded as conclusive in cases of any person who is prohibited from voting by the Constitution or any statute or common law. See in this connection the observation of B.K Mukherjea J. in Durga Shankar Mehta v. Raghuram Singh, AIR 1954 S.C 520 at p. 524 and see also Ghulam Mohiuddin v. Election Tribunal, AIR 1959 All 357. The vote cast by such a person is not lawful and is liable to be disallowed on a scrutiny. The election tribunal can enquire into and consider the question whether a person is prohibited from voting, notwithstanding the fact the name of such a person is entered in the electoral roll. The English law after the passing of the Ballot Act, 1872 is substantially the same, see Petersfield Case, Stowe v. Jolliffes, (1874) LR 9 CP 734, Halsbury, 3rd Edition, Article 544. An alien is subject to a legal incapacity to vote and the vote of an alien is liable to be struck off on scrutiny, see Re Stepney Election Petition, Isaacson v. Durant, (1836) 17 QBD 54, Halsbury 3rd) Edition Article 545. A non-citizen suffers from a fundamental disability as to voting and is disqualified for registration as a voter under Section 16(1)(a) of the Representation of the People Act, 1950. The non-citizen cannot be an elector under the law of the land and the inclusion of his name in the electoral roll as also any vote cast by him are illegal and liable to be struck off. By the express words of S. 16(2) the name of a person who becomes disqualified for registration is forthwith liable to be struck off the electoral roll. I think it is implicit in sub-secs. (1) and (2) of S. 16 that the name of any person who is disqualified for registration under S. 16 on the date of the registration is also liable to be struck off from the electoral roll. The striking off of the name of the disqualified elector from the electoral roll under S. 16 is a ministerial act and the Court will treat that as done which ought to be done. In the eye of law the name of the non-citizen will be considered to have been struck off and not included in the electoral roll. The petitioner is therefore not “included in the Electoral Roll of the West Bengal Legislative Assembly for the time being in force pertaining to the area for which the Gram Sabha is constituted” within the meaning of Section 7 of the West Bengal Panchayat Act, 1956. He was consequently not a member of the Gram Sabha and was not eligible for election as member of the Gram Panchayat and of Anchal Panchayat under Sections 11 and 26 of the Act. His disqualification is a good ground for setting aside the election and the election tribunal acting under S. 117 read with R. 30 was competent to set aside the elections on that ground.

    8. The learned Advocate on behalf of the petitioner relied on the decision of Sinha J. in Ajit Kumar Chatterjee v. Electoral Roll Registration Officer, Bhatar, 64 Cal WN 205. In that case an election as a member of the Gram Panchayat under the West Bengal Panchayat Act 1956 was challenged on the ground that the names of about 197 persons were wrongly included as voters in the electoral roll of the State Legislative Assembly. It was said that some of them were less than twenty years of age, others were not residents within the jurisdiction and there were others who had their names already included in the register of another constituency. In short the objection was that the electoral roll of the West Bengal Legislative Assembly prepared under the Representation of the People Act, 1950 had been wrongly prepared in contravention of the provisions of Sections 17, 19 and 20 of the Representation of the People Act, 1950. In those circumstances Sinha J. held that with regard to the matters complained of, the electoral roll of the State Legislative Assembly prepared under the Representation of the People Act, 1950 must be regarded as conclusive for the purpose of constitution of the Gram Sabha under the Panchayat Act and that the election as a member of the Gram Panchayat could not be challenged on the ground that the names of those 197 persons had been wrongly included in the electoral roll. It is to be observed that in that case it was not a ground of challenge that any of the voters suffered from the disqualifications mentioned in Section 16(1)(a) of the Representation of the People Act, 1950. The question whether the electoral roll of the State Legislative Assembly must also be regarded as conclusive with regard to the disqualification mentioned in Section 16(1)(a) of the Representation of the People Act, 1950 was not in issue in that case. That case is, therefore, distinguishable.

    9. I have, therefore, come to the conclusion that the election tribunal rightly set aside the elections.

    10. The rule is discharged. There will be no order as to costs.

    R.N Dutt, J.:— I agree with my Lord that the Rule should be discharged. But I shall add a few words.

    11. The petitioner's name was included in the electoral roll of the West Bengal Legislative Assembly in force in 1960. Elections under the West Bengal Panchayat Act, 1956 were held in December, 1960 in the district of the West Dinajpur. On the 10th December, 1960, the petitioner was elected a member of the Sarbamangala Gram Panchayat. On the 11th December, 1960, he was elected a member of the Basuria Anchal Panchayat. On the 24th December, 1960, the opposite party filed an application under Section 117 of the Panchayat Act, 1956, read with R. 30 of the Rules framed under the Act for setting aside the election of the petitioner as a member of the said Gram Panchayat and Anchal Panchayat. The Sub divisional Magistrate, Sadar West Dinajpur, acting as the Election Tribunal under the said Act set aside the election of the petitioner holding that the petitioner was not a citizen of India. The present Rule is against this order of the Election Tribunal.

    12. Two points have been canvassed before us. Mr. Burman on behalf of the petitioner argues that Section 9(2) of the Citizenship Act, 1955, bars the Election Tribunal from deciding that the petitioner was not a citizen of India. Section 9(1) of the Citizenship Act, 1955, states that a person who was a citizen of India at the commencement of the Constitution may subsequently acquire the citizenship of some other country. Section 9(2) of the said Act describes the authority having exclusive jurisdiction to determine it a citizen of India has acquired the citizenship of some other country. If the petitioner was ever a citizen of India the Election Tribunal was not competent to determine. If had subsequently acquired Pakistani citizenship. But ??? Election Tribunal is competent to decide if the petitioner was ever a citizen of India. This conclusion follows ??? the language of Section 9 of the Citizenship Act, 1955. ??? may in this connection be made to the Supreme Court decisions in 1961-2 SCA 649 : (AIR 1962 SC 70) and ??? State of Andhra Pradesh v. Abdul Khader, 1961-2 SCA 64 : (AIR 1961 SC 1467). These two decisions have been ??? lowed in our Court in Ataur Rahaman Sardar v. Depu Secretary, Home Department 66 Cal WN 108. Section 9 ??? of the Citizenship Act, 1955, is therefore no bar to ??? Election Tribunal deciding if the petitioner was ever citizen of India. The Tribunal has found that the petitioner was born in India but he migrated from India ??? the territory of Pakistan after 1st of March, 1947 an before the commencement of the Constitution. The petitioner claims to be a citizen of India under Article 5 of the Constitution having been born in India. But Article 5 ??? subject to Article 7 of the Constitution which states that person even though born in India who had migrated from India to Pakistan after the 1st of March, 1947 and before the commencement of the Constitution, is not a citizen ??? India. The petitioner was not, therefore, a citizen of India.

    13. Mr. Burman then argues that the Election Tribunal was not competent to go behind the electoral roll ??? under the Representation of the People Act, 1950. Section 7 of the Panchayat Act, 1955 states that every Gram Sabha shall consist of all persons whose names are Included in the electoral roll of the West Bengal Legislative Assembly for the time being in force. The name of the petitioner was Included in the electoral roll in force in 1960. On the basis of this electoral roll the petitioner was deemed to be a member of the Sarbamangla Gram Sabha. The argument proceeds that the electoral roll is conclusive and the Tribunal cannot go behind it to determine if the entry was rightly made. Mr. Burman relies on the decision of this Court in 64 Cal WN 205. Sinha J. held in that case that the electoral roll which has been prepared under the Representation of the People Act, 1950 must be taken as conclusive. There in that case it was argued that the electoral roll was not rightly made as some persons were included in the roll though their names should not have been included on grounds of age or residence. It was held that no such objection could be raised and the electoral roll should be taken to be conclusive. The objection raised in that case related to the conditions of registration enumerated in Section 19 of the Representation of the People Act, 1950. But in this case the objection relates to a fundamental question, namely, that the petitioner was not a citizen of India at the time the electoral roll was prepared. Under Article 326 of the Constitution only a person who is a citizen of India can be included in the electoral roll. Section 16 of the Representation of the People Act deals with such cases and it has been provided that a person who is not a citizen of India shall be disqualified for registration in the electoral roll. It was not necessary for Sinha J. to decide the question. If the electoral roll was final when an objection is raised that a person's name should not have been Included in the roll as he was not a citizen of India. The Allahabad High Court in AIR 1959 All 357 (FB) held that the electoral roll should be taken as conclusive when an objection. Is raised about the conditions of registration enumerated in Section 19 of the Representation of the People Act. But when the objection raises a question of disqualification as enumerated in Section 16 of the Representation of the People Act, the electoral roll. Is not final and the Election Tribunal is competent to go behind the electoral roll. This appears to me to be the correct position in law and there are good grounds for it. The basis for a person's inclusion in the electoral roll is that he is a citizen of India. If at the relevant time he was not a citizen of India, then he had no legal right to be included in the electoral roll. When a person is incapable of being included in the electoral roll under the provisions of the Constitution itself, the Election Tribunal is competent to set aside the election on the ground that there was no legal basis for the inclusion of his name in the electoral roll. The conclusion finds support in the Supreme Court decision in AIR 1954 SC 520. The Election Tribunal in the present case was, therefore, within its competence to decide that the petitioner's name was not rightly included in the electoral roll and to set aside his election as a member of the Gram Panchayat and Anchal Panchayat.

    CG/R.G.D

    14. Rule discharged.

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    Sultan Khan v. Sailesh Chandra Nundy Opposite Party.
    (Nov 27, 1962)