http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: ELECTION COMMISSION OF INDIA & ANR.

       Vs.

RESPONDENT: DR.  MANMOHAN SINGH & ORS.

DATE OF JUDGMENT:       01/12/1999

BENCH: S.P.Bharucha, R.C.Lahoti, N.Santosh Hegde,

JUDGMENT:

     BHARUCHA, J.

     This  appeal  is filed by the Election  Commission  of India, by special leave, against the judgment and order of a learned  Single  Judge of the Gauhati High Court on  a  writ petition filed by the first respondent.

     The  first respondent was registered as an elector  in the New Delhi Parliamentary Constituency when, on 21st June, 1991,  he became a Minister in the Union Cabinet.  By reason of  the provisions of Article 75 (5) of the Constitution, it was  requisite  that  he  be  elected  to  either  House  of Parliament within six months.

     On  27th August, 1991 the first respondent preferred a claim  in  Form  No.6  prescribed   under  Rule  26  of  the Registration  of  Electors Rules, 1960 for inclusion of  his name in the electoral roll of 52-Dispur Legislative Assembly Constituency in the State of Assam (the said constituency) stating that his place of residence was c/o Dr.  Hema Prabha Saikia,   Ward   No.34,  Sarumataria   Hill,   P.O.    Assam Sachivalaya,  Dispur.  He stated therein, My name may  have been  included in the electoral roll in U.T.  Delhi State in which  I  was  ordinarily resident earlier  at  the  address mentioned  below and, if so, I request that the same may  be excluded  from that electoral roll.  The third  respondent, the  concerned Electoral Registration Officer, directed that the  claim  be  posted on the notice board  of  his  office, inviting  objections within seven days.  On 11th  September, 1991  the first respondents name was registered in the said constituency.   On 26th September, 1991 the first respondent was  elected to the Rajya Sabha from the State of Assam.  On 29th  September,  1991 his name was deleted from  the  Delhi electoral roll.

     On 29th September, 1992 the appellant forwarded to the first  respondent  Form No.1, applicable to the holder of  a declared  office,  for his statement as to the place of  his ordinary  residence.  On 7th June, 1993 the first respondent filed that form stating that, but for his holding the office of  a Union Cabinet Minister, he would have been  ordinarily resident  at  the aforementioned address in the area of  the said  constituency.   On  3rd   September,  1993  the  first respondent was called upon to furnish evidence in support of the  said  statement about his ordinary residence.  On  18th

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

September,  1993  the  third respondent informed  the  first respondent  that it has been decided to include his name  on the rolls of the said constituency.

     On 22nd and 28th December, 1993 the appellant wrote to the  Chief  Electoral  Officers  of  all  States  and  Union Territories  about the malpractice of registering persons on the  electoral  rolls of States and Union Territories  where they were not ordinary resident, and instructed them to look into the matter.

     Pursuant  to  such instruction, the  third  respondent wrote to the first respondent on 2nd February, 1994, thus:

     Whereas  the  Election Commission has cast  doubt  on your  declaration  of  ordinary residence in /S  75,  of  52 Dispur  LAC.  I am to request you to kindly furnish evidence in  support of your claim of ordinary residence as stated in Form No.1 earlier submitted. (Emphasis supplied)

     This  was  followed by another communication  on  16th February,  1994.  On 18th and 22nd February, 1994 the  first respondents Private Secretary sought time to reply.

     On   1st   March,  1994   the  then   Chief   Election Commissioner  passed an order with specific reference to the first  respondent.   He  referred  to   the  facts  and   to investigations in his case in some detail.  He then stated:

     40.   From  the  facts set out  above  the  following inferences would seem to arise :-

     (a)  That when on 29.8.1991 Shri Manmohan Singh  filed his  claim  application for being included in the  electoral rolls  of  52-Dispur Assembly Constituency in the  State  of Assam  he knew that he was registered as an elector in Delhi being an ordinarily resident of Delhi and not of Assam.  The address  c/o  Dr.   Hem  Prabha Saikia, wife  of  the  Chief Minister  of Assam, was acquired only with a view to getting registered as an elector in Assam.

     (b)  That the declaration under Form 1 under rule 7 of the  Registration  of Electors Rule, 1960 read with  Section 20(4)  of the Representation of the People Act, 1950,  filed by  Dr.   Manmohan  Singh during the intensive  revision  of rolls in 1993 did not get established on cross checking.

     (c)  The very text of the order passed by the ERO  for including  his name in the electoral rolls during 1993 shows that  it was an order passed under duress from his  superior officers who had no jurisdiction in this statutory matter.

     (d)  That  the  Returning Officer  who  conducted  the election  of Shri Manmohan Singh to the Council of State  on 26.9.1991  was guided by entry of the name of Shri  Manmohan Singh  in  the electoral roll and therefore could  not  have entertained  any  challenge  against  the  validity  of  the election  on  the basis of illegality committed  during  the registration of Shri Manmohan Singh as an elector.

     (e)  That  while filing the claim petition in  Form  6 under  Rule  13(1)  and Rule 26(1) of  the  Registration  of electors Rules, 1960 on 29.8.1991 and Form 1 under Rule 7 of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

the  Registration of Electors Rules, 1960 read with  Section 20(4)  of  the Representation of the People Act, 1950,  Shri Manmohan  Singh and his supporter Shri Narain Chandra Kakoti both  committed  the office of wilfully  making  declaration which  they could not have believed to be true to their  own knowledge.   Such  declaration  would   attract  the   penal provisions of section 31 of the Representation of the People Act, 1950.

     (f) That District Election Officer of Guwahati and the Chief  Electoral Officer of the State of Assam have  clearly gone beyond their jurisdiction by directing the inclusion of the  name  of Shri Manmohan Singh in the electoral rolls  of 52-Dispur AC.

     41.   In  the above circumstances the  Commission,  in exercise  of  the  powers, inter  alia  of  superintendence, direction and control of the preparation of electoral rolls, vested  in it by virtue of Article 324 of the  Constitution, the  powers  to issue specific or general  directions  under section 22 of the Representation of the People Act, 1950 and all  other  powers  enabling it in this behalf,  directs  as follows:

     (a)  That  the  Electoral   Registration  Officer   of 52-Dispur  Assembly Constituency should expedite the enquiry initiated  by  him  with his  notice  No.DC(ELE)48/93/152(A) dated  the  2nd  February,  1994.  Such  enquiry  should  be completed  as  expeditiously  as possible and  every  effort should  be made by the ERO to conclude it by the 31st March, 1994.

     (b) While conducting the above enquiry and passing the final  order, the ERO should keep in view and pay due regard to the facts brought out in the foregoing paragraphs of this order.

     (c)  If the ERO ultimately comes to the decision  that Shri Manmohan Singh and/or Shri Narain Chandra Kakoti made a wilfully  false  declaration  for getting the  name  of  the former  registered  as  an elector in Assam in  1991  and/or 1993,  he should initiate necessary legal proceedings before the  competent court of law against the aforesaid  person(s) under  section  31 of the Representation of the People  Act, 1950 forthwith.

     42.   The  Commission is examining all the  facts  and intends to take further legal action.

     On  3rd  March,  1994 the first respondent  filed  his reply before the third respondent.  By an order of the third respondent  of  the same date, further evidence  was  called for.   On  16th March, 1994 the first respondent  questioned the  correctness  of the enquiry pertaining to his being  an ordinary  resident  in the area of the said constituency  by filing  the writ petition upon which the order under  appeal was passed.

     The  writ  petition  was allowed in part by  the  High Court, holding thus:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

     87.   Accordingly, this writ application is  disposed of holding as follows:

     i)  That the ordinary resident in a constituency  as mentioned  in  the  Representation of the People  Act,  1950 shall  mean a habitual resident of that place or a  resident as  a matter of fact in regular, normal or usual course.  It means  an  usual  and normal resident of  that  place.   The residence  must be permanent in character and not  temporary or  casual.  It must be as above for a considerable time, he must  have the intention to dwell permanently.  He must have a  settled abode at that place for a considerable length  of time  for  which  a reasonable man will accept  him  as  the resident of that state.

     ii)  A person holding a declared office as provided by the Act of 1950 can file a declaration in Form No.6 and such a  declaration shall have to be accepted as correct and  the burden  does not lie on such a person to produce evidence to the  contrary;   that  burden  lies  on  the  authority  who disputes it, regarding holding of declared office.

     iii)  Apart from enquiry regarding holding a  declared office,  such  a declaration made by the holder of  declared office  cannot be subjected to any enquiry as the statute by creating   a  deeming  provision/fiction   has  given   that privilege/right  to the holder of a declared office to  make declaration  regarding "ordinarily residence of a place and that must be deemed to be final.

     iv) The orders dated 1.3.94 (Annexure-J), notice dated 2.2.94  and  16.2.94 (Annexure-D and F) and the order  dated 3.3.94  (Annexure-I)  shall  stand   quashed  being  without authority   of   law   and   having  been   issued   without jurisdiction, and in violation of laws as indicated above.

     The  appellant accepts the correctness of the  finding of  the  High  Court in regard to the meaning of  the  words ordinary  resident.   It questions the correctness of  its finding  in  regard  to the effect of a declaration  of  the place  of  his  ordinary  residence by a  person  holding  a declared  office  and,  consequently, the  quashing  of  the orders dated 1st March and 3rd March, 1994 and notices dated 2nd February and 16th February, 1994.

     Section  20  of the Representation of the People  Act, 1950  defines ordinarily resident.  Sub-sections (4),  (5) and (7) thereof are relevant here;  they read thus :

     (4)  Any person holding any office in India  declared by   the  President  in   consultation  with  the   Election Commission  to be an office to which the provisions of  this sub-section apply, shall be deemed to be ordinarily resident on  any  date  in  the constituency in which,  but  for  the holding  of  any such office, he would have been  ordinarily resident on that date.

     (5)  The statement of any such person as is  referred to  in  sub-section  (3)  or sub-section  (4)  made  in  the prescribed  form and verified in the prescribed manner, that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

but  for his having the service qualification or but for his holding any such office as is referred to in sub-section (4) he  would have been ordinarily resident in a specified place on  any  date,  shall,  in the absence of  evidence  to  the contrary be accepted as correct.

     (7)  If  in any case a question arises as to where  a person  is  ordinarily  resident at any relevant  time,  the question shall be determined with reference to all the facts of  the case and to such rules as may be made in this behalf by  the Central Government in consultation with the Election Commission.

     That  the first respondent was at the relevant time  a person  holding  an office to which the provisions of  these sub-sections applied is not in dispute.

     Rule  7  of the Registration of Electors  Rules,  1960 states :

     7.   Statement under section 20 (1) Every person  who holds  a declared office or has a service qualification  and desires to be registered in the roll for the constituency in which,   but  for  holding  such   office  or  having   such qualification, he would have been ordinarily resident, shall submit  to  the registration officer of the constituency,  a statement  in such one of the Forms 1, 2, 2A and 3 as may be appropriate.

     (2)  Every  statement  submitted under sub-  rule  (1) shall be verified in the manner specified in the Form.

     (3)  Every such statement shall cease to be valid when the person making it ceases to hold a declared office or, as the case may be, have a service qualification.

     By   reason   of  sub-section   (4)  of   Section   20 aforequoted,  a person who holds a declared office is deemed by  law  to  be,  on any date, an  ordinary  resident  of  a constituency  in which he would ordinarily have resided  but for  the fact that he holds such declared office.  For  this purpose,  by  reason of sub-section (5) of Section  20,  the statement  of the holder of the declared office, made in the form  and verified as required, must be accepted as  correct in  the  absence of evidence to the contrary.   Where  the question  of such a persons ordinary residence does  arise, it  has, by reason of sub- section (7) of Section 20, to  be decided  by  reference  to the facts of  the  case.   (The sub-section  speaks  of rules in this behalf but  none  have been framed.)

     It  is,  therefore,  clear that the statement  of  the holder  of a declared office is not always to be accepted as correct.   It  can be questioned, but only if the  Electoral Registration Officer has evidence to the contrary.

     Therefore,   to  question  the   correctness  of   the statement as to his ordinary residence made by the holder of a  declared office, the Electoral Registration Officer  must

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

be  in  possession of evidence to the contrary.  That  is  a pre-  requisite  for the non-acceptance of the statement  of the  holder  of  a  declared   office.   If  the   Electoral Registration  Officer has such evidence, he must inform  the holder  of  a  declared office accordingly,  and  state  the substance  of  such  evidence  so that  the  holder  of  the declared office may rebut it in the course of the enquiry on facts  that must follow.  The enquiry has to be decided on the  facts  of  the case;  its quasi-judicial  character  is clear.

     The question, then, is whether the enquiry against the first  respondent  can be proceeded with.  It will  be  seen that  the  enquiry  was opened by the letter  of  the  third respondent dated 2nd June, 1994 whereby the first respondent was  asked  to furnish evidence in support of his claim  of ordinary  residence  as stated in Form No.1.  Form  No.   1 relates  to  the declaration of his ordinary residence by  a person  holding  a declared office.  The claim in Form  No.1 was  filed by the first respondent on 7th June, 1993 when he was  already  a  Cabinet Minister and thus the holder  of  a declared office.  His statement therein could, having regard to  the true interpretation of Section 20, sub-sections  (4) and  (5), have been questioned by the third respondent  only if  the  third respondent was possessed of evidence  to  the contrary and the third respondent had intimated to the first respondent  that  fact and the substance of  such  evidence. There  is nothing to indicate that the third respondent  had any  evidence  to the contrary, and he certainly did not  so state  in  his  letter dated 2nd June, 1994.   In  fact,  he called  upon  the first respondent to adduce  his  evidence. The  first  respondents statement in Form No.1  could  not, therefore,  have  been  questioned and the enquiry  in  this behalf  is  bad in law.  It was contended on behalf  of  the appellant  that the order of the Chief Election Commissioner dated  1st  March, 1994 and the notices  subsequent  thereto showed that the enquiry also related to the statement of the first  respondent about the place of his ordinary  residence in  Form No.  6, that is to say, when he was not the  holder of  a declared office, and therefore, the enquiry should  be allowed  to  proceed.   In  the  first  place,  the  enquiry commenced  with  the  third respondents  letter  dated  2nd February,  1994  whereby the first respondent was  asked  to furnish  evidence  in  support of your  claim  of  ordinary residence  as  stated  in Form No.  1, that is to  say,  in support of the statement made by the first respondent as the holder  of a ‘declared office.  In the second place, and  in any  event, the enquiry cannot be allowed to proceed  having regard  to the order of the then Chief Election Commissioner dated  1st March, 1994.  The order referred to the  findings of  investigations  that had been carried on, of  which  the first  respondent  had had no notice.  It drew  inferences therefrom  that  were very adverse to the first  respondent. It  then directed the third respondent to keep in view  and pay  due  regard to the facts brought out in  the  foregoing paragraphs  of this order while conducting the enquiry  and passing  the final order thereon.  Having regard to the fact that  the  third  respondent was a subordinate of  the  then Chief  Election  Commissioner and, given the nature  of  the inferences  drawn by the latter without giving to the  first respondent  the  opportunity of a defence, there can  be  no doubt  that  allowing  the  enquiry   to  proceed  would  be detrimental  to  fair  play and the interests of  the  first respondent.    The  enquiry  and   all  notices  and  orders pertaining thereto must stand quashed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

     It  shall  be  permissible for the  appellant,  if  so advised, to issue to the first respondent, now that he is no longer  the  holder  of  a declared  office,  a  notice  for correcting the electoral roll upon which the entry in regard to  the  first respondents ordinary residence in  the  said constituency  was  made.   It  shall be open  to  the  first respondent  to  raise  all available pleas  in  reply.   The decision  in  the  matter  of such enquiry  shall  be  taken without  reference  to  the observations of the  then  Chief Election  Commissioner  in the order dated 1st March,  1994. The  appeal fails and is dismissed.  There shall be no order as  to costs.  T.P.  (C) Nos.  79-81 of 1995 The matters  in regard  to  which the Transfer Petitions are filed need  not now  be transferred to this Court.  They shall be decided by the  concerned  High Courts in accordance with the law  laid down  in  the  above judgment.  The Transfer  Petitions  are disposed of accordingly.