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PETITIONER: BAIDYANATH PANJIAR

       Vs.

RESPONDENT: SITARAM MAHTO & ORS.

DATE OF JUDGMENT: 13/08/1969

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. RAY, A.N.

CITATION:  1970 AIR  314            1970 SCR  (1) 839  1969 SCC  (2) 447  CITATOR INFO :  RF         1971 SC2123  (9)  E          1973 SC2602  (18,19,20,21,27)  RF         1977 SC1992  (15)  RF         1977 SC2171  (18)

ACT:     Representation  of  the  People  Act,   1950  Elections- Section  22,  sub-s. (3), s. 27(2)--Inclusion  of  names  in electoral     roll    after    last    date    of     filing nomination--Validity   of  votes  cast--Section   22(3)   if mandatory.

HEADNOTE:     Sub-section (3) of s. 23 provides that no direction  for the   inclusion  of  name  in  the  electoral  roll   of   a constituency  shall be given after the last date for  making nomination  for an election in that constituency and  before the completion of that election. The  appellant’s election to the Bihar  Legislative  Council was challenged on the ground that some of the votes cast  in his  favour were not valid because the names of  the  voters were included in the electoral roll after the last date  for filing  nomination.  The High Court set aside the   election and  declared  the  second  respondent   elected  since   on counting    the  validly cast votes  the  second  respondent secured  more  votes  than  the appellant.     On the question whether it was within the competence  of the  electoral registration officer to amend  the  electoral rolls   after the last date  for making the  nomination  was over,           HELD:   The  legislative  mandate  like  the   one embodied in s. 23 sub-s. (3) must be considered as mandatory not  merely  because of the language employed in  that  sub- section  but  also  in  view  of  the  purpose  behind   the provision.   The sub-section does not deal with any mode  or procedure  in  the matter off registering  the  voters.   It interdicts  the concerned officers from interfering with 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. [842 D.F.]

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There  is  no conflict between  sub-s.. (2)  of  s.  23  and subs.  (2)  of s. 27 because a fair reading of  the  various clauses  in  s.  27(2) will make it clear  that  it  is  the electoral  roll  of a constituency as it stood on  the  last date  for  making the nominations for an  election  in  that constituency that is to be considered final for the  purpose of that election. [842 H]

JUDGMENT: 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.     Birendra Prasad Sinha, S.K. Bagga, Harder Singh  and  S. Bagga, for respondent No. 1. Harder Singh, for respondents Nos. 2 and 3. 840 The Judgment of the Court was delivered by     Hegde, J.  The principal question raised in this  appeal under s. 116A of the Representation of People Act, 1951  (to be hereinafter 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  Legislative  Council.   The  calendar  for   the election for that constituency was as follows:    1. Last 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  five 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  candidatures within the  period  prescribed leaving   in  the   field   Shri  Baidyanath  Panjiar,   the appellant herein, Shri Raj Kumar Mahaseth, respondent No.  2 and Shri Gangadhar, respondent No. 3. There were six polling stations in the constituency.  134 votes were polled out  of which 33 votes were polled at Dalsingsarai polling  station. Counting of the votes showed that the appellant had  secured 45,  the second respondent 49 and the third  respondent  40, first  preference  votes.   As  none  of  them  obtained  an absolute  majority of the votes cast, the  third  respondent was  eliminated and his second preference votes  were  taken into. consideration.  14 of his second preference votes went to the appellant and 5 to the second respondent.   Therefore 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 were 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

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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 841 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. Thereafter 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 electoral 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 preparation of the  electoral  rolls regarding   the  local  authorities  constituencies   of   a Legislative   Council.   Clause  (e)  of  that   sub-section stipulates  that  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 election  in               that  constituency  or  in  the  parliamentary               constituency within which that constituency is               comprised  and before  the completion of  that               election."     The  object behind sub-s. (3) of s. 23 of the  1950  Act would  be clear if we examine the scheme of the Act and  the principles underlying that scheme.  Part III of the 1950 Act provides  for  the preparation of the  electoral  rolls  for assembly constituencies. Section 15 provides that for  every constituency,  there shall be an electoral roll which  shall be  prepared in accordance with the provisions of  that  Act under  the  superintendence, direction and  control  of  the Election    Commission.    Section   16   enumerates    what disqualifications  will  disentitle  a  person  from   being enrolled  as  a voter.  Section 18 provides that  no  person shall be entitled to be registered in the electoral roll for any constituency more than once. 842 Section  18 enunciates the principle "one person-one  vote". Section  22  provides  for  correction  of  entries  in  the electoral   rolls.  Section 23 (1 ) permits a  person  whose name is omitted from the rolls to apply for inclusion.  Sub- s.  (2)  of  s. 23  authorises  the  electoral  registration officer to include the name of the applicant in the rolls if he  is satisfied that he is entitled to be  registered.  The ,object  of the aforementioned provision is to. see that  to

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the extent possible, all persons qualified to be  registered as  voters  in  any particular constituency should  be  duly registered  and to remove from the rolls all those  who  are not  qualified to be registered. Subs. (3 ) of s. 23  is  an important  exception to the rules noted earlier. It gives  a mandate  to  the electoral registration  officers   not   to amend,  transpose or delete any entry in the electoral  roll of a constituency after the last date for making nominations for election in that constituency and before the  completion of  that  election. If there was no  such  provision,  there would   have  been  room  for  considerable   manipulations, particularly  when  there   are   only  limited  number   of electors  in  a constituency.  But for  that  provision,  it would have been possible before the concerned authorities to so.  manipulate  the  electoral  rolls  as  to  advance  the prospects of a particular candidate.  This would be more  so if  either  all  or a section of the  electors  are  persons nominated to 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 the purpose behind the provision in question.  In our opinion, cl. 23(a) takes away the power of the electoral registration officer or the chief electoral officer to correct the entries in the electoral rolls or  to include  new names in the electoral rolls of a  constituency after the last date for making the nominations for  election in  that  constituency  and before the  completion  of  that election.   Section  23(3) does not deal with  any  mode  or procedure  in  the  matter of registering  the  voters.   It interdicts the concerned officers from interfering with  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 843 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 (1 ) 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,  every person who is,. for the time being entered 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 nominations for  an election or is it the electoral roll as it stood on the date

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of the polling ?  For answering that question 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  that  in including fresh electors in the electoral roll on April  27, 1968,  the  electoral registration  officer  contravened  s. 23(3) of the 1950 Act, the same cannot be made a ground  for invalidating  the election as the contravention in  question does  not come within the purview of subs. (1) ors.  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 concerns the returned candidate has  been  materially affected by  the  improper  reception, refusal  or  rejection of any vote or the 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. Therefore  votes.  of the  electors whose names were included in the roll on  that date  must  be  held  to be  void  votes.   That  conclusion satisfies 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 have been of the opinion that the result  of the  election  in  so  far  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 844 those  votes had been excluded, the valid votes received  by the contesting candidates in the first count would have been as follows:          Appellant                                 32          Respondent No. 2                          46          Respondent No. 3                          23. In  the  second  count after the elimination  of  the  third respondent   and  taking  into  consideration   the   second preferences  give  by  the electors, who  gave  their  first preference  to  him  the  following  would  have  been   the position:          Appellant                    43 votes and          Respondent No. 2             57 votes. No matter was placed before us to show that 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 final conclusion.     Before  leaving  this case, it is necessary  to  mention that at one stage of the arguments, the learned Counsel  for the  appellant contended that the decision of this Court  in B.M. Ramaswamy v. B.M. Krishnamurthy and Ors.(1) 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 corrections  in  the concerned electoral roll had been made before the last  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 as electors-   This

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Court overruled 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 he 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  fails  and the same is dismissed with costs. Y.P. Appeal dismissed. [1963] 3 S.C.R. 479 845