Baidyanath Panjiar v. Sitaram Mahto & Ors.

Hegde, J. The principal question raised in this appeal under s. I I 6A of the Representation of People Act, 1 951 (to be herein-after referred to as the Act) is as to the scope of s. 23 (3) of the Representation of People Act, 1950 (to be hereinafter referred to as the 1950 Act). A few subsidiary contentions have also been canvassed. They will be considered at the appropriate stage.

The election petition from which this appeal arises relates to the Darbhanga Local Authorities Constituency of the Bihar Legis-lative Council. The calendar for the election for that constituency was as follows :

I. La~t date for filing nomination papers 2-4-1968. 2. Date of scrutiny of nomination papers 4-4-1968. 3. Last date for withdrawal of candidatures 6-4-1968. 4. Date of Poll 28-4-1968. 5. Date of declaration of result 29-4-1968. Originally live candidates submitted their nomination for the election in question. On scrutiny all of them were held to have been validly nominated. Two of them later withdrew their candi-datures within the period prescribed leaving in the field Shri Baidyanath Panjiar, the appellant herein, Shri Raj Kumar Maha-seth, respondent No. 2 and Shri Gangadhar, respondent No. 3. There were six polling stations in :he comtituency. 134 vo:~s were polled out of which 33 votes were poll::d at Dalsingsarai oolling station. Counting of the votes showed that the appe;iant had secured 45, the second respondent 49 and the third respondent 40, · first preference vote~. As none of them obtained an absolute majority of the votes cast. the third respcndent was eliminated and his secc.nd preference votes were :aken into consideration. 14 of his sec.Jnd pref~1ence votes went IC' th~ appellant ~ncl 5 to the second respondent. l11erefore the appellant was declared elected. His election was later challenged by the 1st respondent herein. The High Court has set aside the election and declared the 2nd respondent elected on the ground that on counting the validly cast votes, the second respondent has secured more votes than the appellant. It held that some of the votes cast wer~ not valid votes.

The controversy relating to the validity of some of the votes polled arose under the following circumstances. In the electoral roll as it' stood on the last date of filing nomination papers, the registered voters were only 123; 16 of the registered voters were of the members of Dalsingsarai Notified Area Committee. On April 13, 1968, as per a notification under s. 389(c) of the Bihar and Orissa Municipal Act, 1922, 40 members were nominated as members to the said Notified Area Committee in place of the old members. Most of them were newly appointed members. To be exact 35 of the· 40 members nominated were new members. There-after the electoral roll was amended on the 27th April, 1968, just a day prior. to the polling. As per the amended electoral roll, there were 39 electors in the Dalsingsarai polling station. Only four of them stood registered in the electoral roll as it stood on April 2, 1968. 12 of those who were electors under the original roll were removed from the roll. 33 out of the 39 electors included in the electoral roll relating to Dalsingsarai polling station exercised their franchise during the poll on April 28, 1968.

The question for consideration is whether it was within the competence of the electoral registration officer to amend the elec-toral rolls after the last date for making the nomination was over.

Provisions relating to the preparation of electoral rolls for the Legislative Councils' Constituencies are found in Part IV of the 1950 Act. Section 27 (2) of the Act prescribes the mode of pre-paration of the electoral rolls regarding the local authorities con-stituencies of a Legislative Council. Clause ( e) of that sub-section stipulates tha~ provisions of ss. 15, 16, 18, 22 and 23 shall apply in relation to local authorities' constituencies as they apply in relation to assembly constituencies. Section 22 deals with correction of entries in the electoral rolls. Section 23 deals with the inclusion of names in the electoral rolls. Sub-s. (3) of that section provides that :

"No amendment, transposition or deletion of any entry shall be made under section 22 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this section, after the last date for making nomination for an electio!l in that constituency or in the parliamentary constituency '"ithin which that cogstituencv is comprised and before the completion of that election."

The object behind sub-s. (3) of s. 23 of the 1950 Act would be clea~ if we examine the scheme of the Act and the principles underlying t~at scheme. Part III of the 1950 Act provides for the preparal!on of the electoral rolls for assembly constituencies. Section 15 provides that for every constituency, there shall be an e~e~toral roll which shall be prepared in accordance with the pro-v1s10ns of that Act under the superintendence, direction and con-trol of the Election Commission. Section 16 enumerates what disqualificat!ons will dis.entitle a person from being enrolled as a vot~r. Section l S provides that no person shall be entitled to be registered m the electoral roll for any constituency more than or.ce .. Section 18 enunciales the principle •·one pcrson--0ne vote". Sec-tion 22 provides for correc1ion of cmries in the electoral rolls. Section 23 (I) permits a person whose name is omi1tcd from the rolls to apply for inclusion. Sub-s. (2) of s. 23 authorises the electoral registralion officer to include the name of the applicant in the rolls if he is satisfied that he is enlilled to be registered. The object of the aforementioned provision is to see tha1 to the extcnl possible, all 1i.:rsons qualiJicd to be regislered as voters in any particular constituency should be duly regist~red and to remove from the rolls all those who are no1 qualified to be regislered. Sub-s. (3) of s. 23 is an important exc~ption to the rules noted earlier. It gives a mandate to the electoral rcgislration officers not to amend, transpose or delete any eniry in the electoral roll of a constituency afler the last date for making nominations for election in that constituency and before the complcli•Jn of that eleclion. If there was no such provision, there would have been room for considerable manipulations, particularly when there are only limited number of elec1ors in a constituency. But for tha1 pro\'i-sion, ii would have bcxn possible for 1hc concerned authorities to so manipulale the electoral rolls as 10 advance the prospects of :i particular candidate. This would be mere so if eilhcr all or a sec1ion of lhe electors are persons nominated 10 local authorities. The legislative mandate like the one embodied in s. 23 ( 3) must be considered as mandatory not merely because of the language employed in that sub-section but also in view of !he purpose behind the provision in question. Jn our npinion, cl. 23 (a) takes away the power of the electoral registralion oflicer o;· the chief electoral officer to correct the entries in the electoral rolls or to include new names in the electoral rolls of a conslitucncy after the last date for making the nominations for election in that constituency and before the complelion of that election. Section 23 (3) does not deal with any mode or procedure in the matter of registering the l voters. It interdicts the concerned officers from interfering witlt the electoral rolls under the prescribed circumstances. It puts a stop to the power conferred on them. Therefore it is not a question of irregular exercise of power but a lack of power.

It was next urged by Mr. Goburdhan, learned Counsel for the appellant that s. 23(3) of the 1950 Act is subject to s. 27(2) of the same Act and therefore in view of the direction issued bY the electoral registration officer to include the names of the electors in question, it was not open to the election petitioner to take any objection to the same. We see no substance in this contention. There is no conflict between sub-s. (2) of s. 23 and sub-s. (2) of s. 27. In fact, as noticed earlier, the provisions of s. 23 have .been incorporated into s. 27 (2) in view of s. 27 (2) ( e). A fair reading of the various clauses in s. 27(2) will make it clear that the entries in an electoral roll of a constituency, as they stood on the last date for making the nominations for an election in that constituency should be considered as final for the purpose of that election.

It was next urged that in view of s. 62 (l) of the Act no valid objection can be taken to the franchise exercised by the electors whose names were included in the electoral roll on April 27, 1968. Section 62 ( 1) says that "no person who is not, except as expressly provided by this Act, ever)" person ~ho is •. for the time ~eing enter-ed in the electoral roll of any constituency shall be entitled to vote in that constituency." That provision no doubt stipulates that every person who is for the time being registered in the electoral roll of any constituency except as expressly provided by the Act shall be entitled· to vote in that constituency. The question is which is the electoral roll referred to in that section ? Is it the electoral roll that was in force on the last date for making nbmina-tions for an election or is it the electoral roll as it stood on the date of the polling? For ·answering that quesiion we have to go back to s. 23(3) of the 1950 Act. In view of that provision the electoral roll referred to in s. 62 ( 1) of the Act must be understood to be the electoral roll that was in force on the last day for making the nominations for the .election.

It was next urged that even if we hold lhat in including fresh electors in the electoral roll on April 27, 1968, the electoral regis-tration officer contravened s. 23 (3) of the 1950 Act, the same IP cannot be made a ground for invalidating the election as the con-

travention in question does not come within the purview of sub-s. ( 1) of s. 100 of the Act. This contention again does not appear to be sound. Clause (d) (iii) of sub-s. (1) of s. 100 of the· Act provides that if the High Court is of the opinion that the result of the election in so far as it c6ncerns the returned candidate has been materially affected by the improper reception, refusal or rejection of any vote or (he reception of any vote which is void, it shall declare the election void. We have earlier come to the conclusion that the electoral registration officer had no power to include new names in the electoral roll on April 27, 1968. There-G fore votes of the electors·. whose names were included in the roll

on that date must be held; to be void votes. That conclusi<in satis-fies one of the conditions prescribed in s. 100(1) (d). We have now to see whether the other conditions prescribed in that clause namely whether the High Court on the material before it could !Jave been of the opinion that the result of the election in so far H as it concerned the returned candidate has been materially affected

because of the reception of the votes which are void. The High Court elaborately considered that question. It has examined each one of the disputed votes and has come to the conclusion that if

those votes had been excluded, the valid votes received by the contesting candidates in the first count would have been as fol-lows:

Appellant 32 Respondent No. '.?. 46 Respondent No. 3 23. In the second count after the elimination of the third respondent and taking into consideration the second p~efercnccs giv_en by the electors, who gave their first preference to hun the foJlowmg would have been the position :

Appellant 43 votes and Respondent No. 2 57 votes.

No material was placed before us to show t!1at this conclusion was wrong. There was some controversy about two votes but we do not think it necessary to go into the same as any decision as regards their validity will not affect the 'inal conclusion.

Before leaving this case, it is necessary to mention that at one stage of the arguments, the learned Counsel for the appellant con-tended that tlie decision of this Court in B. M. Ramaswamy v. B. M. Krishnamurthy and Ors.(') governs the facts of this case. But after some discussion he gave up that contention. The ratio of that decision has no relevance for our present purpose. In that case, the High Court came to the conclusion that the correc-tions in the concerned electoral roll had been made beforo the la~t date prescribed for filing nominations to the election but it came to the conclusion that the electors newly added ·to the list were not qualified to be registered asclectors. This Court over-ruled that finding holding that every person whose name finds place in the electoral roll must be held to be qualified to be a candidate whether be was qualified to be registered as an elector or not. In other words it upheld the finality of the electoral roll as it stood on the last date for filing nominations for the election.

For the reasons mentioned above this appeal iails and the same is dismissed with costs.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 25 of 1969.

Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated December 11, 1968 of the Patna High Court in Election Petition No. 4 of 1968.

D. Goburdhun, for the appellant.

:fl Birendra Prasad Sinha, S. K. Bagga, Hardev Singh and S.

Bagga, for respondent No. 1.

Hardev Singh, for respond-mts Nos. 2 and 3.

The Judgment ci the Court was delivered by