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PETITIONER: D.B. RAJU

       Vs.

RESPONDENT: H.J. KANTHARAJ AND OTHERS

DATE OF JUDGMENT13/07/1990

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) KASLIWAL, N.M. (J)

CITATION:  1990 SCR  (3) 336        1990 SCC  (4) 178  JT 1990 (3)   148        1990 SCALE  (2)1

ACT:     Representation  of  People Act,  1951:  Final  Electoral roll--To  be made available before expiry fixed  for  filing nomination papers.     Karnataka  Zilla  Parishads, Taluk  Panchayat  Samithis, Mandal  Panchayats and Nayaya Panchayats Act, 1983:  Section 5(9), 40(1)-Final electoral roll to be made available before expiry fixed for filing nomination papers.

HEADNOTE:     The  appellant contested the election to  the  Karnataka State Legislative Council from the Chitradurga Local Author- ities  Constituency, comprising 121 Mandal  Panchayats.  The last date and time fixed for receiving nomination papers was 3.00 p.m. on 3.6.1988. and revision, if any, of the elector- al  roll had to be completed before that time.  The  polling took place on 3.7.1988 and the appellant was declared as the successful candidate.     Earlier,  a decision had been taken by  the  Chitradurga Zilla  Parishad  on 28.5.1988 to nominate two  members  from each  Mandal Panchayat, that is, a total number of 242  mem- bers.  With  a view to complete the nomination,  the  Deputy Commissioner took the necessary steps in accordance with the Karnataka  Zila Parishads, Taluk Panchayat Samithis,  Mandal panchayats  and  Nyaya Panchayats Act, 1983, read  with  the rules framed thereunder, and sent out the names for affixing the same on the notice boards of the office of the concerned Tehsildar  and Mandal Panchayat and in the Chavadis. On  his satisfaction  that  the publication of 2/3rd  of  the  total number  of the names was complete, the  Deputy  Commissioner was free to proceed further and to revise the electoral roll under the Representation of the People Act, 1950 by  includ- ing all the nominated members. In this regard, in his  writ- ten statement before the High Court the Deputy  Commissioner stated that the electoral roll had been up-dated and a  copy pasted in the office on 3.6.1988 at 8.55 p.m.     Sub-section (1) of section 40 of the Parishads Act  made it  abundantly  clear  that a nominated  person  became  the member of a 337 Panchayat only on the publication of his name under  section 5(9) of the Parishads Act read with rule 73 of the Parishads

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Rules.     A  petition was filed in the High Court challenging  the appellant’s election on the ground that the inclusion of the 242 nominated members in the electoral roll took place after the period for nomination was over and they were, therefore, not included in the electoral roll in the eye of law.     After examining the evidence led by the parties the High Court held that the names were not included in the electoral roll  by 3.00 p.m. on 3.6.1988. Accordingly, the High  Court set aside the election of the appellant and directed recount of votes after excluding those of 242 members.     Before this Court in appeal it was inter alia  contended on  behalf  of the appellant that (i) the  evidence  on  the record  established that information of the  publication  of the names of more than 2/3rd of the total number of nominat- ed  persons had reached the Deputy Commissioner in time  for the amendment of the Council Constituency roll, and that the Deputy  Commissioner  had  actually made an  order  for  the inclusion of the names in the roll on 2.6.1988 (ii)  putting the  final voters list on the notice board was not a  neces- sary  requirement under the law; and (iii) since the  burden was on the election petitioner to prove such facts which may vitiate  the election, he must fail in the present state  of evidence.     On  behalf of the respondents it was contended that  the electoral roll must be held to have been modified in the eye of law only at 8.55 p.m. on 3.6.1988 when the alleged inclu- sion of the names was made public and not earlier. Dismissing the appeal, this Court,     HELD: (1) A plain reading of the evidence suggests  that both the up-dating of the electoral roll and pasting a  copy thereof took place on 3.8.1988 at 8.55 p.m. [346G]     (2)  The circumstances that (i) the Deputy  Commissioner was not able to assert in his evidence before the Court that the  revision of the roll had taken place before 3.00  p.m.; (ii)  he was under an impression that the revision was  per- missible till the midnight; and (iii) in spite of the  docu- ments  available to him he was not in a position  to  assert that the 338 report  of publication of the names of 2/3rd or more of  the nominated  persons in the offices of the  Mandal  Panchayats had been received in his office before the deadline, strong- ly support the case of the election petitioner. [346H; 347A]     (3)  Besides  fixing the identity of the persons  to  be allowed to vote at the election, the purpose of the prepara- tion  of the roll is to enable the persons included  therein to  decide  as  to whether they would like  to  contest  the election and to help such persons in assessing their chances of success. [348F]     (4) The intending contestants and their supporters  thus heavily  depend upon the final electoral roll  for  deciding their future conduct, and it is, therefore, extremely essen- tial that it is made available to them before the expiry  of the period fixed for filing the nomination papers. [348G]     (5) If the roll as it stood earlier, was  confidentially corrected  by the Electoral Registration  Officer  concerned sitting  in  his office which did not see the light  of  the day,  the  same cannot be considered to have  been  prepared accordingly to law. [348H]     Bachhittar Singh v. The State of Punjab, [1962] Supp.  3 SCR 713, referred to.     (6) It is correct that putting the final voters list  on the  notice board is not a necessary requirement  under  the law.  But that does not lead to the further conclusion  that

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the electoral roll can be prepared secretly and kept in  the drawers of the Officer without any information     knowledge  to persons who are interested in finding  out its final shape. [349B]     S.K.  Srinivasan  and others v. State of  Karnataka  and Others, [1987] 1 SCC 658, referred to.     (7)  The Acts of the legislature are passed by  the  ac- credited representatives of the people who in theory can  be trusted  to see that their constituents know what  has  been done,  and this is done only after debates take place  which are  open to the public. The matter thus receives wide  pub- licity through the media. But the case is different with the delegated legislation and, if one may add, also in the  case of orders passed by the authorities like that in the present appeal.  The mode of publication can vary but there must  be reasonable publication of some sort. [349H; 350A-B] 339     Harla v. State of Rajasthan, [1952] SCR 110; Fatma  Haji Ali Mohammad Haji v. State of Bombay, [1951] SCR 266;  State of  Maharashtra v. Mayer Hans George, [1965] 1 SCR  123  and Johnson v. Sargant & Sons, [1918] 1 K.B. 101, referred to.

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Civil  Appeal  No.  3634 (NEC) of 1989.     From  the  Judgment  and Order dated  11.8.1989  of  the Karnataka High Court in Election Petition No. 6 of 1988.     M.C. Bandare, Ranjit Thomas and Mrs. C.K. Sucharita  for the Appellant.     Shanti  Bhushan, B.R.L. Iyenger, R.B. Mehrotra and  E.C. Vidyasagar, for the Respondents. For the (State of Karnataka) M. Veerappa. The Judgment of the Court was delivered by     SHARMA, J- This appeal under s. 116A of the  Representa- tion of the People Act, 1951, is directed against the  deci- sion of the Karnataka High Court setting aside the  election of  the appellant D .B. Raju to the State Legislative  Coun- cil, and directing the recount of the votes after  excluding those  of  242 nominated members. The election was  held  by adopting the ’single transferable vote method’. The  polling took place on 3.7. 1988 and the counting was taken up on the next  date,  that  is, 4.7. 1988. After  several  rounds  of counting the appellant was declared as the successful candi- date.      2. The election in question relates to the  Chitradurga Local  Authorities Constituency, comprising 121 Mandal  Pan- chayats. The last date and time fixed for receiving  nomina- tion  papers  was 3.00 p.m. on 3.6. 1988. According  to  the appellant’s  case, a decision was taken by  the  Chitradurga Zilla Parishad in its special meeting held on 28.5. 1988  to nominate two members from each Mandal Panchayat, that is,  a total  number of 242 members. Accordingly, steps were  taken under the provisions of the Karnataka Zilla Parishads, Taluk Panchayat  Samithis, Mandal Panchayats and Nyaya  Panchayats Act,  1983  (hereinafter referred to as the  Parishads  Act) read with the rules framed thereunder, and 242 members  were duly nominated in time to be included in the electoral roll. This has been denied by the election 340 petitioner-respondent no. 1, as also some of the respondents who  contested  the election. According to their  case,  the inclusion  of  the  names of the nominated  members  in  the electoral  roll took place after the period  for  nomination

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was  over  and  they were, therefore, not  included  in  the electoral  roll in the eye of law. The main question in  the case which thus arises is as to whether the names of the 242 nominated members were included in the electoral roll within the time permitted by the law.     The Deputy Commissioner, who was impleaded in the  elec- tion petition as the 5th respondent (in this appeal also  he is respondent No. 5), had triple role to play in  connection with  the  disputed election. He was  authorised  under  the Parishads  Act  and  the Karnataka  Zilla  Parishads,  Taluk Panchayat  Samithis, Mandal Panchayats and Nyaya  Panchayats (Conduct  of Election) Rules, 1985 (hereinafter referred  to as  the  Parishads Rules) to take steps for  completing  the nomination  of the members; under s. 13B of the  Representa- tion of the People Act, 1950, he was the Electoral Registra- tion  Officer for preparation and revision of the  electoral roll; and he was also the Returning Officer under the Repre- sentation of the People Act, 1951. According to the case  of the appellant, a resolution was passed by the Zilla Parishad on 28.5. 1988 nominating the aforementioned 242 members, and the  Chief Secretary of the Zilla Parishad sent the list  of the  names  to the Deputy Commissioner on  30.5.  1988.  The Deputy Commissioner was, under s. 5(9) of the Parishads Act, required  to  publish the said names so as to  complete  the process of nomination. He was also vested with the jurisdic- tion  to include the names in the electoral roll  under  the provisions of the Representation of the People Act, 1950. It is  relevant  to  note at this stage that  the  question  of inclusion  of  the names in the electoral roll  could  arise only after the nomination was complete in the eye of law.  A nominated person was entitled to be included as a voter  for the  election to the Council Constituency after he became  a member of the Mandal Panchayat and not before. Having learnt about  the  nominations  on the eve of  the  election,  some persons  challenged the same and objected before the  Deputy Commissioner  to  the  proposed  publication.  However,  the Deputy  Commissioner on 1.6.1988 passed an  order  directing the necessary steps to be taken under the Parishads Act, and accordingly  a list of the nominated members was  pasted  on the  notice board of the office of the Deputy  Commissioner. Before the nominated persons could be treated to have become members  of  the Panchayats it was  necessary  that  certain other steps also were taken in accordance with the Parishads Act and the Parishads Rules. Subsection (1) of s. 40 of  the Parishads Act, which is mentioned below, 341 makes it clear that a nominated person becomes the member of a Mandal Panchayat only on the publication of his name under s. 5(9): "40. Commencement of term of Office (1)  The term of office of the members elected at a  general election or at a second election held under sub-section  (7) of section 5, or nominated shall commence on the date  imme- diately  after the expiry of the term of office of the  out- going  members  of  the Mandal Panchayat or  the  period  of appointment of an Administrative Committee or  Administrator under  section  8, or on the date of  publication  of  their names  under  sub-section  (9) of section  5,  whichever  is later." The  manner of publication of the names has been  prescribed by r. 73 of the Parishads Rules in the following terms:           "73.  Publication of names of members  elected  or nominated  to  Mandal  Panchayat.--The  Deputy  Commissioner shall,  as  soon as conveniently may be,  publish  the  list containing  the  names of the members elected or  deemed  to

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have  been elected or nominated to the Mandal  Panchayat  by causing  such list to be affixed on the notice board of  his office, office of the Tahsildar, concerned Mandal  Panchayat and in the Chavadi." With  a view to complete the nomination, the Deputy  Commis- sioner  sent  out  the names for affixing the  same  on  the notice boards of the office of the concerned Tahsildars  and Mandal  Panchayats and in the Chavadis. The  Deputy  Commis- sioner could have taken steps for inclusion of the names  in the  electoral roll of the State Council Constituency  after receipt  of the information of their due publication in  the offices  situated  at different places. There is  a  serious dispute  as to when the necessary information became  avail- able at Chitradurga and the formal steps of including  those names  in  the  electoral roll were  actually  taken.  After examining  the evidence led by the parties, the  High  Court has  held that the names were not included in the  electoral roll by 3.00 p.m. on 3.6.1988.     4.  Mr. M.C. Bhandare, the learned counsel appearing  in support  of  the appeal, has contended that the  High  Court fell  in grave error in deciding the disputed issue  against the appellant as it failed to 342 take  note of the provisions of the Explanation to s.  40(1) of the Parishads Act, which reads as follows:           "Explanation.--When  the names of members  elected at  a  general election or at a second election  held  under sub-section  (7) of section 5 or nominated are published  on more than one date, the date by which the names of not  less than 2/3rd of the total number of members has been published shall be deemed to be the date of publication for ’ purposes of this section." The  learned counsel argued that the evidence on the  record establishes that information of the publication of the names of more than 2/3rd of the total number of nominated  persons had  reached the Deputy Commissioner in time for the  amend- ment of the Council Constituency roll and the Deputy Commis- sioner  had actually made an order for the inclusion of  the names in the roll on 2.6.1988. Accordingly, the final  elec- toral roll including the nominated members was ready in  the office  of  the Returning Officer, and the appellant,  as  a matter  of fact, had inspected the same. Reliance  has  been placed  on  his  deposition as well as  on  the  documentary evidence in the case.     5.  The  most important evidence in the case  is  to  be found  in the statement of the Deputy Commissioner  examined as P.W. 4. Besides, the election petitioner examined several other witnesses. An examination of evidence on record  leads to  the  conclusion that the Chief Secretary  of  the  Zilla Parishad  had sent the list of the nominated members to  the Deputy  Commissioner  on 30.5. 1988 and a copy  thereof  was placed  on  the notice board of  the  Deputy  Commissioner’s office  on  1.6.1988.  However, that did  not  complete  the process  of  nomination. The provisions of s. 40(1)  of  the Parishads  Act  make it abundantly clear  that  a  nominated person would become a member of the Panchayat only after due publication  of  his name in accordance with r. 73.  It  was therefore  necessary  to  have the names  of  the  nominated persons  affixed  on the notice board of the office  of  the Tahsildars,  the notice boards of the Mandal Panchayats  and in  the Chavadis. Mr. Bhandare is right that in view of  the Explanation to s. 40(1) it was not necessary for the  Deputy Commissioner  to  have waited for the  information  in  this regard  from  all the places. On his satisfaction  that  the publication  of 2/3rd of the total number of the names  were

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complete,  he was free to proceed further and to revise  the electoral  roll under the Representation of the People  Act, 1950  by including all the nominated members. But the  ques- tion is as to when the Deputy Commissioner 343 did  receive  the information about the 2/3rd of  the  total number, and further whether he, as a matter of fact, revised the  electoral  roll before 3.00 p.m. on the  3rd  of  June, 1988. It is significant to note that the electoral roll  did not  get  automatically  amended on the  completion  of  the process of nomination of the additional members.  Ordinarily the  question  of inclusion of a new name in  the  electoral roll  arises  only when an application is  made  before  the Electoral Registration Officer in this regard, but the power can be exercised by the Officer even without such an  appli- cation.  In  the  present case it appears  that  a  tactical battle  was going on in the political arena between the  two rival  groups;  one  attempting to get  the  electoral  roll amended  by the inclusion of the nominated members  and  the other  trying to foil it. The Deputy Commissioner was  under pressure from both sides, and as the evidence discloses,  he had to consider the different stands taken before him, which slowed down the entire process. Let us examine the  evidence in this background.     6. The Deputy Commissioner has, in his evidence,  stated that  his office received the information about the  nomina- tion  from the Zilla Parishad on 30.5. 1988 when he  was  at Bangalore. He returned back to Chitradurga on 31.5. 1988 and examined  a copy of the resolution of the Parishad  as  also the  list of the nominated persons. Soon thereafter  he  was approached by the two groups, one supporting the  resolution and the other opposing it. Ultimately he decided to  publish the  list as required by s. 5(9) of the Parishads  Act  read with  r. 73 of the Parishads Rules. Accordingly, a  copy  of the  list was placed on the notice board of his  office  and lists  for the publication in the Taluk offices were  handed over  to the Tahsildars who were already present in  Chitra- durga-  The lists for the publication in the offices of  the Mandal  Panchayats  and Chavadis, which  were  scattered  at considerable distances, were sent to the Chief Secretary  of the  Zilla Parishad. The Deputy Commissioner  postponed  the further step for modification of the electoral roll awaiting the  report on publication from the different offices.  Some reports  from  the Taluk offices were received  on  1.6.1988 itself, but the Deputy Commissioner in his evidence was  not in a position to give the details. His  examination-in-chief was,  therefore, discontinued and he was asked to bring  the documents on the next date with reference to which he  could answer the further questions. Accordingly, he later appeared with  the papers and stated that the last reports  regarding the publication from the Taluk Office of certain places were received  on 4.6.1988. In his cross-examination  the  Deputy Commissioner  stated  that on the basis of  his  records  he could say that he had received reports from 5 Taluk  Offices only on 1.6.1988, and 344 none  from  the Mandal Pancnayats; and on  2.6.1988  he  had received  reports about the publication in the  Mandal  Pan- chayats  from 2 Taluks. As there were only 9 Taluks  in  his district,  it  can be presumed that  information  about  the publication of 2/3rd number at Taluk offices had reached the Deputy  Commissioner by the evening of the 2nd  June,  1988. However,  there does not appear to be any relevant  evidence available  on the records, and none has been shown to us  by the  learned counsel, with regard to the publication of  the

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requisite  number of names in the Mandal  Panchayat  offices and in the Chavadis. It has been contended on behalf of  the appellant that since the burden is on the election petition- er  to prove such facts which may vitiate the  election,  he must fail in the present state of evidence. Before adverting to  this  aspect we propose to consider the  other  evidence relating to the revision of the electoral roll.     7. The electoral roll was produced before the High Court and was marked as Ext. P-6. Although it ought to have  borne the  dates  of its preparation and revision, none is  to  be found  there.  The inclusion of the names of  the  nominated members  was, according to the evidence, done  by  attaching slips  to  Ext. P-6. The Deputy Commissioner was  unable  to state  as  to the date on which Ext. P-6  was  prepared  and typed.  So far the "updated Voters’ List" was concerned,  it was  placed on the notice board of the office of the  Deputy Commissioner  at  8.55.  p.m. on 3.8.1988, after  a  lot  of wrangling between the rival groups. In answer to a  question in cross-examination the Deputy Commissioner stated, "I  cannot say if the preparation of this list was  complete by 3.00 p.m. on 3.6.1988 as it is a ministerial part of it." As has been mentioned earlier, the dispute about the validi- ty of the belated nominations had been raised on 31.5.  1988 before  the Deputy Commissioner when he returned to  Chitra- durga  from Bangalore and he took a decision on 1.6.1988  to proceed  with the publication so as to complete the  process of  nomination.  According to his statement, which  he  made after  verifying from the documents, the necessary  informa- tion from the Mandal Panchayats and Chavadis started  reach- ing  him on 2.6.1988. But they were inadequate as they  were only from two Taluks. At the earliest the information  about the  publication  of the necessary number of  names  reached Chitradurga  on  3.6.1988 when the two groups  were  arrayed against each other in his office, one urging the revision of the  electoral roll and the other opposing it. The  deadline was 3.00 p.m. on 3.6.1988 which was approaching fast. But it 345 is  important to note that the Deputy Commissioner  was  not aware  that  the period available for the  revision  of  the electoral roll was expiring in the afternoon. He was under a wrong  impression that the entire calender date of  3.6.1988 was available for the purpose. Towards the end of  paragraph 3 in his written statement the Deputy Commissioner categori- cally stated that he "was under a bona fide impression  that direction  for  the inclusion of the name in  the  electoral roll of the constituency shall be given under Section 23  at any  time on the last date for making nominations".  In  the earlier  writ  petition between the parties  (in  which  the issue raised was not decided) the respondent no. 5 had  made a similar statement in paragraph 2 of his reply. Being under that  wrong  impression he was not in a hurry  to  take  the decision  in  regard to the revision of the  electoral  roll quickly. The election petitioner, P.W. 1, was himself not  a candidate  but was an active supporter of one of the  candi- dates  and  was seriously involved in the  question  of  the revision  of the roll, and, as stated in his  evidence,  the publication of the names under r. 73 of the Parishads  Rules was complete by 3.6.1988 only in some of the Mandal Panchay- ats. After the deadline at 3.00 p.m. on 3.6.1988 was crossed an  application, which has been marked as ’Annexure  R-III’, signed by the Secretary, District Janata Party, was given to the Deputy Commissioner asserting that no further  additions or  deletions in the electoral roll were permissible and  an endorsement  to that effect should be made by the  Returning Officer.  The Deputy Commissioner did not  immediately  give

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his  reply thereto. The parties were also insisting for  the publication  of the electoral roll in its final  shape.  Ac- cording  to the further evidence of P.W. 1, the Deputy  Com- missioner  promised  them that he would  contact  the  Chief Electoral Officer at Bangalore by telephone and only  there- after  he  would  decide on his further  action.  The  party workers  including the witness awaited the further  develop- ment and at 8.55 p.m. the Deputy Commissioner declared  that the  names of the newly nominated members were  included  in the  voters  list. Soon thereafter he also  replied  to  the letter  of the Janata Party Secretary by a letter headed  as "ENDORSEMENT", stating,            "With  reference  to the above,  you  are  hereby informed that action has been taken to include the nominated members by the Zilla Parishad to the Mandal Panchayat in the District and as per Section 27(c) read with Section 23(3) of the  R.P. Act, 1950, the Electoral Roll for Local  Authority Constituency  has  been up-dated and a copy  pasted  in  the office on 3rd June 1988 at 8.55 P.M." 346 Two other Janata Party members have been examined as P.Ws, 2 and 3 in the case supporting the above version.     8. Mr. Bhandare has relied upon the oral evidence of the appellant  wherein he claimed to have gone to the office  of the Deputy Commissioner on 2.6. 1988 to secure a  prescribed form  for filing his nomination as a candidate in the  elec- tion and was allowed to examine the electoral roll which was kept on a table in the office. He asserts that after verify- ing  his  name and serial number in the list  he  discovered that  the  names  of nominated members  were  also  included therein. He stuck to this story in the cross-examination and insisted  that  it was at 11.00 in the morning  on  2.6.1988 that he had seen the revised roll. It is difficult to accept his  case on this evidence. According to the Deputy  Commis- sioner  himself  the  report about the  publication  in  the office  of the Mandal Panchayats from only two  Taluks  were received  by the evening of 2.6. 1988 and it is,  therefore, not believable that the Deputy Commissioner had amended  the roll  before  3.6.1988.  The  Deputy  Commissioner  has  not claimed  to have revised the roll on 2.6.1988. On the  other hand,  he made a very significant assertion in  his  written statement  in the present election petition which is  quoted below: "The Deputy Commissioner issued direction for the  inclusion of the names of nominated members on 3.6.1988 and the  elec- toral  roll for local Authorities Constituency has been  up- dated  and a copy pasted in the office on 3.6.1988  at  8.55 P.M." In  the  earlier writ petition also he had  made  a  similar statement, as mentioned below, towards the end of  paragraph 2 of his reply: "The Deputy Commissioner issued direction for the  inclusion of  the  name of Respondents 3 to 246 on  3-6-1988  and  the electoral  roll for Local Authorities Constituency has  been up-dated and a copy pasted in the office on 3-6-1988 at 8-55 P.M." A  plain reading of the above statement suggests  that  both the updating of the electoral roll and pasting a copy there- of took place on 3.6. 1988 at 8.55 p.m. The statement cannot be  interpreted to mean that the revision of  the  electoral roll had been done about 6 hours earlier. The  circumstances that  (i) the Deputy Commissioner was not able to assert  in his evidence before the Court that the revision of the  roll had  taken  place  before 3.00 p.m.; (ii) he  was  under  an impression

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347 that  the  revision was permissible till the  midnight;  and (iii) in spite of the available documents to him he was  not in  a position to assert that the report of  publication  of the  names of 2/3rd or more of the nominated persons in  the offices  of the Mandal Panchayats had been received  in  his office before the deadline, strongly support the case of the election petitioner.     9. It has been contended on behalf of the appellant that the burden to prove that the names of the nominated  members were  not included in the electoral roll in time is  on  the election petitioner and unless he is able to lead acceptable evidence  to  discharge the same, the election  petition  is bound to fail. The argument is that the oral evidence led by the  petitioner cannot be accepted for recording  a  finding that the controversial names had not actually been  included in  the  electoral roll before 3.00 p.m. which  was  in  the custody of the Deputy Commissioner. The fact that  political opponents  of the appellant who were opposing the  inclusion of the names were repeatedly asking the Deputy  Commissioner orally  as  well as in writing to inform  them  whether  the names  were actually included in the electoral roll  or  not itself  shows  that  they could not be sure  of  the  actual position till 8.55 p.m. The bald assertion of the  witnesses for  the  petitioner  in this regard cannot  be  given  much weight. Thus the position, according to the learned counsel, available  from the records of the case is that there is  no reliable  evidence on the crucial issue and, therefore,  the election petition must be dismissed.     10.  Apart from supporting the finding of fact  recorded by the High Court in favour of the election petitioner,  Mr. Shanti Bhushan, learned counsel for the respondents,  argued that  the electoral roll must be held to have been  modified in the eye of law only at 8.55 p.m. when the alleged  inclu- sion  of the names was made public and not earlier. He  rea- lied  upon  the  decision in Bachhittar Singh  v.  State  of Punjab,  [1962] Supp. 3 SCR 713. The appellant in that  case was  appointed as a Kanungo and later promoted as  Assistant Consolidation  Officer in the former State of Pepsu.  A  de- partmental inquiry was held against him as a result of which he  was dismissed by the Revenue Secretary. He preferred  an appeal  to  the State Government. The Revenue  Minister  ex- pressed his opinion in writing that instead of his dismissal he  should be reverted to his original post of Kanungo.  The said  remarks were, however, not communicated to the  appel- lant  officially and the State of Pepsu was merged with  the State  of Punjab. The matter was thereafter re-examined  and the Chief Minister passed an order confirming the  dismissal of the appellant. This order was com- 348 municated  to the appellant which led to the filing  of  the writ  petition in the High Court. The High  Court  dismissed the writ application and the appellant appealed before  this Court  by special leave. One of the questions considered  by this  Court was as to the effect of the order in writing  by the  Revenue Minister, Pepsu, recommending reversion of  the appellant  in place of his dismissal. For the reasons,  men- tioned  below, the Court held that the order of the  Revenue Minister was of no avail to the appellant. "Thus it is of essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For  until the  order is communicated to the person affected by it,  it would  be open to the Council of Ministers to  consider  the matter over and over again and, therefore, till its communi-

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cation  the order cannot be regarded as anything  more  than provisional in character."     11. As has been pointed out earlier, the evidence of the appellant that he had actually seen the final voters list in the  office of the Deputy Commissioner must be  rejected  as unreliable.  There is no acceptable evidence at all to  show as  to when the alleged corrections were made in the  voters list.  At 8.55 p.m. on 3.6.1988 the inclusion of  the  names was  made public for the first time. The question is  as  to whether  the  electoral  roll will be deemed  to  have  been modified  when  it was made public at 8.55 p.m.  or  earlier when  the  actual  correction in the list was  made  in  the Deputy  Commissioner’s office which fact was kept  confiden- tial in spite of repeated demands for information.     12.  Besides  fixing the identity of the persons  to  be allowed to vote at the election, the purpose of the prepara- tion  of the roll is to enable the persons included  therein to  decide  as  to whether they would like  to  contest  the election.  It is also helpful to such persons  in  assessing their chances of success by reference to the voters  finally included  in the roll. For the purpose of  canvassing  also, the  intending contestant requires a copy of the final  vot- ers’  list. The intending contestants and  their  supporters thus heavily depend upon the final electoral roll for decid- ing  their future conduct, and it is,  therefore,  extremely essential  that  it  is made available to  them  before  the expiry of the period fixed for filing the nomination papers. It the roll as it stood earlier, was confidentially correct- ed  by the Electoral Registration Officer concerned  sitting in  his office which did not see the light of the  day,  the same cannot be considered to have been prepared according to law. 349 The  observations in Bachhittar Singh’s case will  be  fully applicable in as much as the Officer here also could  recon- sider the list again.     13.  Mr. Bhandare in reply relied upon the  judgment  in B.K. Srinivasan and Others v. State of Karnataka and Others, [1987] 1 SCC 658, and argued that unlike the Karnataka  Town and  Country  Planning Act, 1961 and the  Rules  which  were under consideration in the said case, the Representation  of the  People Act does not require a display of the  electoral roll.  The  learned counsel is correct and he  rightly  said that  putting the final voters list on the notice  board  is not a necessary requirement under the law. But that does not lead  to the further conclusion that the electoral roll  can be prepared secretly and kept in the drawers of the  Officer without  any  information or knowledge to  persons  who  are interested in finding out its final shape. The reported case was  dealing with the principle of  subordinate  legislation and in paragraph 15 of the judgment made important  observa- tions  which support the respondents’ point of view. It  was stated thus:           "There can be no doubt about the proposition  that where  a law, whether Parliamentary or subordinate,  demands compliance, those that are governed must be notified direct- ly  and  reliably of the law and all changes  and  additions made  to it by various process. Whether law is  viewed  from the  standpoint of the ’conscientious good man’  seeking  to abide by the law or from the standpoint of Justice  Holmes’s ’Unconscientious bad man’ seeking to avoid the law, law must be known, that is to say, it must be so made that it can  be known." It  was further observed that unlike Parliamentary  legisla- tion which is publicly made, delegated or subordinate legis-

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lation  is  often made unobtrusively in the  chambers  of  a Minister,  a Secretary to the Government or  other  official dignitary and it was, therefore, necessary that  subordinate legislation  in  order to take effect must be  published  or promulgated in some suitable manner whether such publication or promulgation is prescribed by the parent statute or  not. It  will then take effect from the date of such  publication or promulgation- The decision instead of helping the  appel- lant is clearly against him.      14.  The vital difference between an Act of a  legisla- ture  and  a subordinate legislation was  earlier  noted  in Harla v. State of Rajasthan, [1952] SCR 110. The Acts of the legislature are passed by the accredited representatives  of the people who in theory can be trusted to 350 see  that  their constituents know what has been  done,  and this is done only after debates take place which are open to the  public. The matter receives wide publicity through  the media. But the case is different with the delegated legisla- tion  and, if we may add, also in the case of orders  passed by  the authorities like that in the present  appeal  before us.  The  mode  of publication can vary but  there  must  be reasonable publication of some sort. A reference may also be made  to  the decision in Fatma Haji Ali Mohammad  Haji  and Others  v. The State of Bombay,, [1951] SCR 266,  where  the question  as to whether certain powers given to the  Govern- ment for issuing a direction to the Collector not to act  in accordance  with  the  prescribed rules  had  been  actually exercised or not was under consideration. It was stated that the power had to be exercised in clear and unambiguous terms and, "the  decision that the power has been exercised  should  be notified  in  the usual manner in which such  decisions  are made known to the public." Before  closing this discussion we should refer to the  case of  State of Maharashtra v. Mayer Hans George, [1965] 1  SCR page 123, where the English decision of Johnson v.  Saragant &  Sons,  [1918] 1 K.B. 101, relied upon by  this  Court  in Harla’s  case  came to be considered. The  respondent  Mayer Hans George was a German Smuggler who was carrying gold from Switzerland  to  Manila  by an aeroplane  which  stopped  at Bombay  for sometime. The respondent did not get  down  from the plane but he was searched by the Indian Officers and was found  to  be carrying gold illegally. He was  charged  with criminal  activity on the basis of a notification  requiring him  to declare the gold as transhipment cargo in the  mani- fest of the aircraft, which he had failed to do. His defence was that he had no knowledge of this notification. After his conviction  by  the trial court, the High  Court  on  appeal acquitted  him.  The Supreme Court by  a  majority  judgment reversed  the  decision and found him guilty on  the  ground that  the  notification had been published in  the  official gazette  of  India.  The defence plea that since  he  was  a foreigner  and was, therefore, not expected to be  aware  of the  notification was rejected. While discussing  the  argu- ments  addressed  in  the case, the  Court  appreciated  the criticism of Prof. C.K. Allen against the judgment in  John- son  v.  Sargant,  but there was no  comment  or  suggestion against  the  correctness of the judgment in  Harla  v.  The State  of Rajasthan. On the other hand, the observations  at page  163-G  -H are on the same lines. It  was  stated  that where  there is no statutory requirement as to the  mode  or form of publication, "we conceive the rule to be that it  is necessary that it should be published in the usual 351

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form  i.e., by publication within the country in such  media as generally adopted to notify to all persons concerned  the making  of the rules." Having regard to the nature and  pur- pose of the power for rectification of the electoral roll by the Electoral Registration Officer, the principle enunciated in  the abovementioned cases must be held to be  applicable. We  accordingly  hold that in the eye of law  the  electoral roll  in question was not modified by the inclusion  of  the names of the nominated members before 8.55 p.m. on 3.6.1988. We,  therefore,  affirm the decision of the High  Court  and dismiss the appeal with costs. R.S.S.                                 Appeal dismissed. 352