D.A.Desai:-

(1) * * * *

(2) Before i proceed to examine the grounds on which the validity of the election of the members to various panchayats is called in question i will first dispose of a preliminary objection raised by the respondents against the maintainability of these petitions. Mr. C: -. T. Daru learned advocate who appeared for some of the respondents in special civil applications nos. 492 506 and 507 of 1970 and mr. B. J. Shelat learned assistant government pleader who appeared for the mamlatdar and taluka development officer who are respondents in each of these petitions urged that sec. 24 of the act provides efficacious alternative remedy and therefore the high court should not entertain a petition for issuance of a writ of quo warranto. Mr. Daru made it specifically clear that it was not his submission that a writ petition challenging the validity of an election would not lie; but the submission was that when the statute the high court ordinarily does not entertain a petition for a writ of quo warranto provides for an alternative efficacious remedy. It was urged that the ground on which the validity of election is called in question by the petitioners in each of these petitions can as well furnish a ground on which election petition may be made to the civil judge (junior division) who has been constituted a tribunal to determine the validity of election which may be held under the provisions of the gujarat panchayats act. It was therefore urged that if a special tribunal has been set up under the gujarat panchayats act and if the tribunal is competent to decide the question of validity of election of the members to the gram panchayat and is authorised to declare some other person elected to the panchayat; and is also authorised to set aside the election then unless some convincing reasons are assigned for by - passing the tribunal the high court ordinarily would not entertain a petition for issuance of a writ of quo warranto. Mr. Daru frankly conceded that if there was any doubt about the jurisdiction of the he section tribunal set up under rec. 24 to entertain election petition of the nature filed in this court this court may entertain petition under art. 226 of the constitution challenging the validity of the election. But it was very vehemently urged that if there is no doubt about the jurisdiction of the election tribunal let up under sec. 24 to entertain the petition and to decide the validity of the electron and if the tribunal has power either to confirm or amend the declared result or set aside the election then in the absence of very cogent and convincing reasons this court should not in exercise of extra - ordinary jurisdiction entertain a petition under art. 226 for the issuance of a writ of quo warranto. If the election tribunal set up under sec. 24 of the act would have jurisdiction to entertain a petition of the present petitioner in each of these petitions challenging the validity of election of all the members to the panchayat obviously this court would not entertain a petition invoking extra - ordinary jurisdiction for issuance of a writ of quo warranto unless very cogent and convincing reasons are assigned for by - passing the tribunal if the election is to be held under the provisions of a particular statute and the statute itself sets up an election tribunal with authority to decide the validity of the election with power to confirm or amend the declared result of the election or with power to set aside the election ordinarily any person calling in question validity of the election must approach that tribunal. For good and convincing reasons the high court may entertain a petition for issuance of a writ of quo warranto. If no reasons are forthcoming the high court would decline to exercise its extra - ordinary jurisdiction vide kanchanbha; maneklal vi g. L. R. 200 however. In the same case bhagwati j. (as he then was) speaking for the division bench has observed that there is no hard and fast rule that where there is an alternative remedy the court should not entertain a petition under art. 226 or refuse to grant relief to the petitioner. There is always a discretion vested in the court to entertain the petition and grant relief to the petitioner nor with standing the existence of the alternative remedy. Whether in a given case the court would exercise its discretion one way or the ether would depend upon the facts and circumstances of that particular case. Reference was also made to a recent decision of j. B. Mehta j. In special civil application no. 594 of 1965 decided on 17 june 1970 in which the petition filed by a person whose nomination paper was rejected was dismissed on the short ground that the petitioner should have availed of the remedy before the statutory authority constituted under the act. It would appear that where there is an alternative efficacious remedy the court in the absence of cogent and convincing reasons would be slow to exercise its extra - ordinary jurisdiction under article 226 of the constitution at the instance of the person who has by - passed the tribunal constituted under the act.

(3) The important question however is: - whether sec. 24 provides an alterative efficacious remedy to the petitioner challenging election of all the elected members of the respective afore - mentioned gram panchayats. Secs. 24 (1) and 24 (1a) which are relevant for the purpose read as under : -

24 (1) if the validity of any election of a member of a panchayat is brought in question by any person contesting the election or by any person qualified to vote at the election to which such question refers such person may at any time within fifteen days after the date of the declaration of the results of the election apply to the civil judge (junior division) and if there be no civil judge (junior division) then to the civil judge (senior division) (hereinafter referred to as the judge) having ordinary jurisdiction in the area within which the election has been or should have been held for the determination of such question.

(1) an applicant shall not join as respondents to his application persons except those mentioned in the following clauses namely: -

(a) where the applicant in addition to challenging the validity of the election of all or any of the returned candidates claims a further relief that he himself or any of her candidate has been duly effected all the contesting candidates other than the applicant and where no such further relief is claimed all the returned candidates; and (b) any other candidate against whom allegations of any corrupt practice are made in the application.

The person who can approach the civil judge who is constituted an election tribunal under sec. 24 questioning the validity of election of a member to a panchayat must be the person qualified to vote at the election to which such question relates. By a recent amendment the legislature has added words by any person contesting the election in sec. 24 (1) none of the petitioners contested the election and therefore the effect of this addition in sec. 24 (1) would not make any difference in deciding the point herein raised. This would necessitate finding out who would be the person qualified to vote at the election. Sec. 22 (1) is relevant for the purpose which reads as under: -

22 (1) every person whose name is in the list of voters shall unless disqualified under this act or any other law for the time being in force be qualified to vote at he election of a member for the electoral division to which such list pertains

Under sec. 24 (1) any person qualified to vote at the election is entitled to raise a question as to the validity of the election before the tribunal. Therefore before any one can invoke the jurisdiction of the election tribunal set up under sec. 24 he must be a person qualified to vote at the election. The person who would be qualified to vote at the election would be the person whose name is in the list of voters for the electoral division to which such list pertains. Only that person shall be qualified to vote at the election of a member for the electoral division whose name is in the list of voters in the said electoral division. The combined effect of sec. 22 (1) and sec. 24 (1) would be that under sec. 24 only a person qualified to vote at the election can raise the question about the validity of election of a member of the panchayat. The person qualified to vote at the election would be the person whose name is in the list of voters of the electoral division from which member or members of the panchayat are elected. Therefore under sec. 24 only the person whose name is in the list of voters of a particular electoral division is entitled to raise a question about the validity of election of a member or members from that division only. No one else is qualified to question the validity of election of a member or members of the panchayat by election petition. At any rate a person whose name is not to be found in the list of voters of a particular electoral division would not be entitled to raise a question about the validity of election of member or members to the panchayat from that electoral division by way of election petition under sec. 24. The scope of election petition under sec. 24 is thus clear and well - defined. It is crystal clear that under sec. 24 only the person who is qualified to vote at the election of the member from an electoral division because of the inclusion of his name in the list of voters pertaining to that electoral division can make an application. The person approaching the election tribunal set up under sec. 24 challenging the validity of election must show that he is a person who is qualified to vote at the election because of the inclusion of his name in the list of voters pertaining to the electoral division and accordingly he can challenge the election of only those members who are elected from the electoral division in which the petitioner who filed election petition has a right to vote because of the inclusion of his name in the list of voters pertaining to that electoral division. If such is the combined effect of sec. 24 (1) read with sec. 22 (1) it would immediately appear that the petitioner in each of these petitions who is challenging the validity of election of all members of the respective gram panchayats elected from different electoral divisions of each gram panchayat could not have filed election petition under sec. 24 of the act on the grounds on which he has challenged the election of all the members of respective panchayats in these petitions. The name of the petitioner would be in the list of voters pertaining to any one particular electoral division and by way of election petition at best he can challenge the election of members elected from that particular electoral division only. But by election petition under sec. 24 he would not be able to challenge election of all the members elected to the gram panchayat from different electoral divisions. If therefore election petition is filed under sec. 24 by one person whose name is in the list of voters of one electoral division of a panchayat questioning validity of election of all elected members from all electoral divisions of the said panchayat it was bound to fail as being incompetent in respect of the election of members from those electoral divisions wherein name of the petitioner was not to be found in the list of voters pertaining to those electoral divisions. The view that i am taking finds support from a decision of the division bench of the maharashtra high court in the case of satyanarayan shri vallabh ladha v. Bhagwant rao narpatirao ingole 65 bom. L. R. 266. In that case sec. 27 of the maharashtra zilla parishads and panchayat samities act 1961 came up for interpretation before the court. The contention raised was that the election petition filed by a person who was not qualified to vote at he election challenging validity of the election of a member from certain constituency was not maintainable. Sub - sec. (1) of sec. 27 of the aforesaid act is in pari materia with sub - sec. (1) of sec. 24 of the gujarat panchayats act. Considering the language of sub - sec. (1) of sec. 27 the division bench observed that under sub - sec. (1) it is only the person qualified to vote at the election who can apply to the district judge. It was further observed that voter in the constituency in which election is held and no other person can file an election petition under sec. 27. That would be the position looking to the language of sub - sec. (1) of sec. 24.

(4) Mr. Daru however urged that the words many person qualified to vote at the election in sec. 24 (1) would mean qualified to vote at the time of general election of the panchayat. In other words it was urged that if a person is qualified to vote in any of the electoral divisions of the panchayat he can challenge by election petition under sec. 24 the validity of election of all the members of the panchayat including the members elected from other electoral divisions where the person concerned was not qualified to vote. Mr. Daru urged that the words qualified to vote at the election mean qualified to vote at the time of the election from any electoral division. The legislature itself has indicated what meaning it intended to give to the expression qualified to vote at the election. The provision contained in sec. 22 (1) in most unambiguous terms indicates the meaning which the legislature intended to give to the expression person qualified to vote at the election. The language of sec. 22 (1) leaves no room for doubt that is person qualified to vote at the election is a person whose name is in the list of voters pertaining to a particular electoral division. A person whose name is in the list of voters pertaining to particular electoral division will be qualified to vote at the election in that electoral division alone and no where else. Such a person may contest from any other electoral division of the same panchayat in view of the provision contained in sub - sec. (2) of sec. 22. But the right to vote and right to get elected are not put on the same footing. The right to vote can only be exercised by a person whose name is in the list of voters pertaining to the particular electoral division at the election of members from that electoral division alone. Right to be elected is conferred upon every one whose name is included in the list of voters and he can offer himself as a candidate from any electoral division. If the construction canvassed for by mr. Daru were to be accepted it would lead to a startling result. Suppose election is held for electing members from one electoral division of a panchayat on account of a casual vacancy and after the election is held if the construction canvassed for by mr. Daru were to be accepted any one who was not qualified to vote at the time of the election from that electoral division would still be entitled to question the validity of that election by election petition under sec. 24. Ordinarily those who are affected by election would be entitled to question the validity of the election. In such a case it is difficult to conceive that any person who had a right to vote in other electoral division can question the validity of the election of members from the electoral division where he was not qualified to vote. The legislature does not appear to have made such a provision. Therefore person qualified to vote at the election who can move a petition under sec. 24 must be the person who was qualified to vote at the election of members from that particular electoral division in which his name is included in the list of voters and he can question the validity of election of members elected from that electoral division only. That in my opinion appears to be the scope of jurisdiction of the election tribunal set up under sec. 24.

(5) At this stage one submission of mr. K. G. Vakharia may be noticed. Mr. Vakharia urged that by way of a petition under sec. 24 the petitioner can challenge the validity of election of one member only. It was urged that where the petitioner desires to challenge the validity of election of more than one member either he would have to file separate petition or he cannot challenge the election of more than one member by a single petition. There is no substance in this contention. The use of the singular in sec. 24 does not rule out that where there is multi - member constituency that is where more than one member are to be elected from one electoral division of panchayat a person qualified to vote at the election in that electoral division would not be entitled to question the validity of all the members elected from that electoral division. Where in a statute a singular is used it includes plural unless by context plural is excluded. Therefore the use of the word a member though the word is singular it does not rule out in a given case possibility of election of more than one member from same electoral division being challenged by the person qualified to vote in that election even by a single petition. But urged mr. Vakharia that if the election is called in question on the ground of corrupt practice the allegation of corrupt practice may be different in respect of different successful candidates and therefore also by one petition only election of one successful candidate can be questioned and in respect of each successful candidate separate petitions will have to be filed under sec. 24. There is no warrant for such a construction looking to the language of sec. 24. If a given electoral division of a panchayat is a multi - member constituency and if the election of the members from such a multi - member constituency is called in question even on account of corrupt practice in my opinion a single petition would certainly lie or if the grounds of corrupt practice are so different that they cannot be tried at one trial separate petitions may have to be filed. But from this one cannot come to the conclusion that whether election of more than one member is called in question petition under sec. 24 is incompetent.

(6) Having considered all the aspects of the matter it appears to me crystal clear that where election of all the members from all electoral divisions of a gram panchayat is challenged on the ground inter alia that the election is not conducted in the prescribed manner in my opinion the section tribunal constituted under sec. 24 will have no jurisdiction to entertain such a petition. If the election tribunal under see. 24 will have no jurisdiction to entertain such a petition it cannot be said that in view of the alternative efficacious remedy this court should not entertain a petition in exercise of its extra - ordinary jurisdiction.) rule discharged.