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PETITIONER: B.   M. RAMASWAMY

       Vs.

RESPONDENT: B.   M. KRISHNAMURTHY AND OTHERS

DATE OF JUDGMENT: 30/07/1962

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER WANCHOO, K.N. SHAH, J.C. AYYANGAR, N. RAJAGOPALA

CITATION:  1963 AIR  458            1963 SCR  (3) 479  CITATOR INFO :  RF         1970 SC 314  (11)  R          1970 SC 340  (9)  F          1971 SC2123  (6)  RF         1973 SC 717  (9)  F          1973 SC2362  (6,7)  R          1973 SC2602  (17)  RF         1977 SC1992  (22)

ACT: Election   Dispute--Validity   of   election    challenged-- Authenticated  lists  of  voters--Authority  of  courts   to interfere--Mysore  Village Panchayats and Local Boards  Act, 1959 (Mys.10 of 1959), ss. 9, 10, 13--Mysore Panchayats  and Taluk  Boards election Rules, 1959, r. 3--Representation  of the   people   Act,   1950  (43   of   195O),ss.   23,   24, 30--Representation of the People Rules, 1956, Rule 26.

HEADNOTE: Elections  were held to a Panchayat in the State of  Mysore. The appellant and five others filed their nomination  papers within the prescribed date.  The appellant and respondent  2 were duly declared elected.  Respondent 1 filed an  election petition  under s. 13 of the Mysore Village  Panchayats  and Local Boards Act, 1959, for a declaration that the appellant was  not duly elected and he himself was duly elected.   The Munsif held that on the date fixed for filing of  nomination papers,   the  name  of  the  appellant  was  not   in   the authenticated  list  of voters an(!, therefore, he  was  not entitled to file his nomination papers.  The election of the appellant  was  set  aside.   The  High  Court  upheld   the conclusion  of  the  Munsif  or the  basis  of  a  different reasoning.   It held that though the name of  the  appellant was  included before the prescribed date. in  the  electoral roll  of  the legislative constituency under s.  23  of  the Representation  of the People Act, 1950, it was so  included in  direct violation of r. 26 of the Representation  of  the People  Rules, 1956, and, therefore, the said inclusion  was void.  The appellant came to this Court by special leave.

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Held, that in view of s. IO of the Act, it could not be said that  there  was any improper acceptance of  the  nomination papers  of  the appellant.  As his name was in the  list  of voters,  he was qualified to be elected as a member  of  the Panchayat.  There was no provision it, the Act which  autho- rised the High Court to set aside the election on the ground that though the name of a candidate was in the list, it  had been   included  therein  illegally.   The  action  of   the Electoral Registration Officer in including the name of  the appellant 480 in  the Electoral Roll might be illegal, but the same  could not  be questioned in a civil court.  The mistake  could  be rectified only in the manner prescribed by law by preferring an  appeal under r. 24 of the Rules or by resorting  to  any other  appropriate  remedy.   The action  of  the  Electoral Registration  Officer was not a nullity.  He had  admittedly jurisdiction  to entertain the application for inclusion  of the  name  of the appellant in the Electoral Roll  and  take such  action as he deemed fit.  The non-compliance with  the procedure  prescribed  did  not  affect  his   jurisdiction, although that might render his action illegal.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 233 of 1962. Appeal  by special leave from the judgment and  order  dated August  2, 1961, of the Mysore High Court in  Writ  Petition No. 814 of 1961. B.   Vendantiengar and S. N. Andley, for the appellant. The respondents did not appear. 1962.  July 30.  The Judgment of the Court was delivered by SUBBA  RAO, J.-This appeal by special leave arises out of  a dispute  in  respect  of the election to  the  Panchayat  of Byappanahalli, from its first constituency, in the State  of Mysore.      The calendar of events for the saidelection      was as follows:  Notification of election.6-2-1960  Date by which candidates  had to file nomination papers.16-3-1960  Date of the scrutiny of nomina-  tion papers....18-3-1960  Poll......13.4-1960  Peolaration of result....14.4-1960 481 The appellant and five others filed their nomination  papers within  the prescribed date.  The polling took place on  the scheduled  date,  namely  April 13,  1960.   The  candidates secured votes as mentioned under:                 Appellant...........   169 votes  Respondent 2...      158 votes  Respondent 1...       128 votes               Respondent 3....115 votes  Respondent 4...38 votes  Respondent 5...46 votes The appellant and respondent 2 were duly declared elected to the Panchayat. Respondent  1 filed an election petition under s.13  of  the Mysore Village Panchayats and Local Boards Act, 1959 (Mysore Act  No.  10  of 1959) hereinafter called the  Act,  in  the Court, of the Second Munsiff, Bangalore, for a  declaration, that  the appellant was not duly elected and for  a  further declaration that the first respondent was duly elected.  The

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case of the first respondent, as disclosed in his  petition, was,  that on the date, fixed for filing of nominations  the appellant’s  name  was’  not in the  authenticated  list  of voters  published  under  r.  3,  cl.  (5)  of  the   Mysore Panchayats   and   Tuluk  Boards   Election   Rules,   1959, hereinafter  called  the Rules, and, therefore, he  was  not entitled  to file his nomination.  It was his  further  case that  the  appellant  was  not  ordinarily  a  resident   of Byappanahalli  and,  therefore,  he  was  disqualified  from standing for the election from that constituency. The   learned  Munsiff  held on the second  point  that  the appellant was ordinarily a resident of the said village  and was,  therefore, qualified to be included in  the  electoral roll of the Panchayat, 482 but he came to the conclusion that his name was not included in  the authenticated list of voters of the said  Panchayat. On that finding, he set aside the election of the  appellant and  declared  the first respondent, who  secured  the  next highest  number of votes, to have been duly elected  in  his place. On  appeal,  the  learned Judges of the  High  Court,  after noticing  the finding of the Munsiff to the effect that  the appellants  name was not included in the authenticated  list of  voters  for the Panchayat, observed that  they  did  not agree  with the reasoning given by the learned Munsiff,  but they agreed with his conclusion on the basis of a  different reasoning.  They held that though the name of the  appellant was  included before- the prescribed date in  the  electoral roll  of  the legislative constituency under s.  23  of  the Representation  of the People Act, 1950, it was so  included in  direct violation of r. 26 of the Representation  of  the People Rules, 1956, arid that, therefore, the said inclusion was  void.   Having so held, they agreed  with  the  learned Munsiff  that the appellant’s election was liable to be  set aside.   Hence the appeal.  It may be mentioned  that  there was no appearance on the side of the respondents, Before  considering the point raised, it will be  convenient to clear the around.  Section 9 of the Act reads:               "The electoral roll of the Mysore  legislative               Assembly for the time being in force for  such               part of the constituency of the Assembly as is               included in any Panchayat constituency  shall,               for  the purpose of this Act, be deemed to  be               the list of voters for such Panchayat constit-               uency.   The Secretary of the Panchayat  shall               maintain  in the prescribed manner a  list  of               voters for each Panchayat constituency.               483               Explanation.-For the purpose of this  section,               electoral  roll shall mean an  electoral  roll               prepared under the provisions of the  Represe-               ntation of the People Act, 950 (Central Act  B               XLIII of 1950) for the time being in force."               Section 10 says:               "Every  person  whose name is in the  list  of               voters  of any Panchayat  constituency  shall,               unless  disqualified under this Act  or  under               any other law for the time being in force,  be               qualified  to  be elected as a member  of  the               Panchayat:........................ ". Rule  3 of the Rules prescribed the mode of maintenance  and custody  of  list of voters.  It says, among  other  things, that the Secretary of the Panchayat shall maintain a list of voters  for  each  panchayat  constituency,  that  he  shall

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authenticate  such  list by affixing on it the seal  of  the Panchayat,  and that he shall, from time to time, carry  out in the authenticated copy of each such list, any corrections that  may  be  made  in the Electoral  Roll  of  the  Mysore Legislative  Assembly and initial below each  correction  so made.   It will be clear from the said provisions  that  the relevant   part  of  the  electoral  roll  of   the   Mysore Legislative Assembly is deemed to be the list of voters  for the  panchayat constituency, and that the Secretary  of  the panchayat has to maintain a duly authenticated separate list of  voters  of the said constituency.  The  learned  Munsiff held  that,  as  the said authenticated  list  of  panchayat voters  was not produced before him, it was not  established that  the name of the appellant was included therein on  the date  of nomination.  The learned Judges of the  High  Court did not accept the said finding on the ground that they  did not  agree with the reasoning given by the learned  Munsiff, but  unfortunately  they have not given  their  reasons  for differing from him. 484 But a persual of the election petition shows that the  first respondent  accepted  in his petition that the name  of  the appellant was included in the said authenticated list on the date when be filed his nomination paper.  Presumably because of  that fact the learned Judges of the High Court  did  not think  fit to sustain the finding of the  learned   Munsiff. ID, View of the said admission in the petition, it cannot be expected  of the appellant to summon the authenticated  list to prove what has already been admitted. This  leads us to the consideration of the only  substantial question that arises in the appeal.  Learned counsel for the appellant  Contends  that  the  High  Court  went  wrong  in considering the question of the legality of the inclusion of the  appellant’s  name in the electoral roll of  the  Mysore Legislative Assembly, as, under s. 30 of the Representations of  the  People  Act, the jurisdiction of  civil  courts  to question  the legality of an action taken by, or  under  the authority of, the Electoral Registration Officer was barred. It is common case that the name of appellant was included in the electoral roll of the Mysore legislative Assembly before the date prescribed for filing of nomination papers.  But it is  said  that the Electoral Registration  Officer  did  not follow  the  procedure  prescribed  in  that  behalf.    The provisions  relevant  to  the question raised  may  be  read conveniently  at this stage.  Section 23 of the  Representa- tion of the People Act, 1950, reads:               (1)   Any parson whose name is not included in               the electoral roll of a constituency may apply               in  the  manner hereinafter provided  for  the               inclusion of his name in that roll.               485               Rule  26 of the Representation of  the  People               (preparation of Electoral Rolls) Rules,  1956,               says:               (i)   Every application under sub-section  (i)               of  section 23 shall be made in  duplicate  in               Form 4 (Part 1) and shall be accompanied-               (a)   where  it  is  to  the  chief  electoral               officer, by a fee of ten rupees, and               (b)   where    it   is   to   the    electoral               registration officer, by a fee of one rupee.               (2)   The  fee  specified  in  subsection  (i)               shall be paid by means of non-judicial stamps.               (3)   The  chief electoral officer or, as  the               case   may  be,  the  electoral   registration

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             officer shall immediately on receipt of’  such               application,  direct that one copy thereof  be               posted in some conspicuous place in his office               together with a notice inviting objections  to               such application within a period of seven days               from the date of such posting.               (4)   The  chief electoral officer or, as  the               case   may  be,  the  electoral   registration               officer  shall,  as soon as may be  after  the               expiry  of  the period specified  in  sub-rule               (3), consider the objections, if any, received               by  him  and  shall,  if  satisfied  that  the               appellant is entitled to be registered in  the               electoral roll, direct his name to be included               therein.               Section 24 of the Representation of the People               Act, 1950, provides:               An  appeal shall lie within such time  and  in               such manner as may be prescribed-               (a)   to the chief electoral officer, from any               order  of the electoral  registration  officer               under section 22 or section 23, and               486                (b)  to  the Election  Commission,  from  any               order  of  the chief electoral  officer  under               section 23. Rule 27 of the Representation of the People (preparation  of Electoral  Rolls )Rules,1956, prescribes the  procedure  for preferring appeals. It is not disputed that an application was filed before  the registration  officer for the inclusion of  the  appellant’s name in the electoral roll; it is also common case that  the electoral registration officer did not follow the  procedure prescribed   in  r.26  relating  to  the  posting   of   the application  in a conspicuous place and inviting  objections to  such application.  It cannot, therefore, be denied  that the inclusion of the name of the appellant in the  electoral was  clearly illegal.  Under s. 30 of the Representation  of the People Act,1950, no civil court shall have  jurisdiction to  question the legality of any action taken by,  or  under the  authority of, the electoral registration officer.   The terms  of  the  section are clear and  the,  action  of  the electoral registration officer in including the name of  the appellant  in the electoral roll, though illegal, cannot  be questioned in a civil, court: but it could be rectified only in  the  manner prescribed by law, i. e., by  preferring  an appeal  under  r. 24 of the Rules, or by  resetting  to  any other  appropriate remedy.  But it was contended before  the High  Court  that the action of the  electoral  registration officer was a nullity inasmuch as he made the order  without giving  notice  as  required  by  the  Rules.   We  find  it difficult   to  say  that  the  action  of   the   electoral registration  officer  is  a  nullity.   He  has  admittedly jurisdiction  to entertain the application for inclusion  of the  appellant’s  name in the electoral roll and  take  such action  as  he  deems  fit.   The  non-compliance  with  the procedure  prescribed  does  not  affect  his  jurisdiction, though it may render his action illegal. 487 Such non-compliance cannot make the Officer’s act non  est, though his order may be liable to be set aside in appeal  or by resorting to any other appropriate remedy. The Act proceeds on the basis that the voters’ list is final for the purpose of election.  Under s. 10 of the Act, "every person whose name is in the list of voters of any  Panchayat

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constituency  shall, unless disqualified under this  Act  or under  any other any other law for the time being in  force, be  qualified to be elected as a member of  the  Panchayat". The  disqualifications are enumerated in s. 11.  If  he  was not  disqualified-in the present case, the finding  is  that there   was  no  such  disqualification-the  appellant   was certainly  qualified  to  be  elected as  a  member  of  the Panchayat.   The Act confers a special jurisdiction  on  the Munsif  to set aside an election, and he can do so only  for the reasons mentioned in s. 13 (3) of the Act.  The relevant provision  is in s. 13-(3) (A) (d) (i) which relates to  the improper acceptance of any nomination.  In view of a. 10  of the  Act,  it  cannot be said that  there  is  any  improper acceptance of the nomination of the appellant, for, his name being  in the list of voters, be is qualified to be  elected as  a  member  of the Panchayat.  There  is,  therefore,  no provision  in  the Act which enables the High Court  to  set aside the election on the ground that though 488 the name of a candidate is in the list, it had been included therein illegally. In this view we do not propose to express our opinion on the question whether, if the election of the appellant was void, the  Munsiff  could have declared. the first  respondent  to have been duly elected in his place. For  the  aforesaid  reassons,  we  cannot  agree  with  the conclusion  arrived at either by the learned Muasiff  or  by the  learned Judges of the High Court.  In the  result,  the appeal  is  allowed and the election petition  is  dismissed with costs throughout.                                   Appeal allowed.                         -------- 489