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PETITIONER: HARIPRASAD MULSHANKER TRIVEDI

       Vs.

RESPONDENT: V.   B. RAJU AND OTHERS

DATE OF JUDGMENT28/08/1973

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN SIKRI, S.M. (CJ) BEG, M. HAMEEDULLAH DWIVEDI, S.N. CHANDRACHUD, Y.V.

CITATION:  1973 AIR 2602            1974 SCR  (1) 548  1974 SCC  (3) 415  CITATOR INFO :  RF         1977 SC1992  (18)

ACT: Representation of the People Act, 1950, Sections 16, 19,  21 to  24, 30 Representation of the People Act,  1951,  Section 2(1)(e), 3, 100(1) (a), 100(1) (d)(i), (iii),  (iv)-Question whether  returned candidate was ordinarily resident  in  the constituency  on whose electoral rolls he was borne not  one of   jurisdictional  fact-Scheme  of  1950  and  1951   Acts manifests  intention  of  Parliament  to  exclude   judicial review-Jurisdictional  question  one  of  public  policy  as reflected is the statute.

HEADNOTE: The  respondent  No.  1, Raju, filed  an  election  petition against  the appellant and respondent No. 5 challenging  the election  to  the  Council of States from  Gujarat,  on  the ground  that  their  names were  illegally  entered  in  the electoral  rolls.,  us  they were not  electors  within  the meaning of Sec. 2(1)(e) of the Representation of People Act, 1951.   It  was  contended that  they  were  not  ordinarily resident  in  any  of the  parliamentary  constituencies  in Gujarat  State as required by Sec, 19 of the 1950 Act.   The question  was  treated  as a  preliminary  question  by  the Gujarat  High  Court.   The  High  Court,  relying  on  some decisions of the Supreme Court, held that ordinary residence in  a  constituency  was  a  jurisdictional  fact  and   the Registration  Officer  cannot,  by  an  erroneous  decision, determine  the jurisdictional fact and clothe  himself  with jurisdiction and enter the names of the said respondents  in the electoral rolls.  The preliminary question was  answered by the High Court in favour of respondent No. 1, Raju.   The appellant  before  the Supreme.  Court challenged  the  High Court’s  order on the ground that it was not  competent  for the High Court to go behind the decision of the Registration Office  and  decide  whether  his  decision  declaring   the respondents   as  ordinarily  resident  in  the   respective parliamentary constituencies, was correct or not. Contesting  the appellant’s claim, respondent No.  1,  inter

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alia  contended  that if the decision  of  the  Registration Officer  regarding  ordinary residence to be  final  on  the question  of the entitlement of a citizen to be  entered  in the  electoral rolls, there is no recourse to a Civil  Court u/s  30 of the Act.  Courts cannot imply the ouster  of  the jurisdiction  of Courts trying an election petition  because if tile officer decides the question wrongly, a citizen will have no remedy to protect his statutory right to be a  voter and   to  contest  elections.   Respondent  No.  1   further contended that a wrong decision by the officer would raise a question  of  jurisdictional  fact and the  High  Court  has jurisdiction to decide such a question. Rejecting the contentions. HELD  :  (1)  The  intention  of  Parliament  to  oust   the jurisdiction of the Court trying an election petition to’ go into the question whether a person is ordinarily resident in the constituency in the electoral roll of which his name  is entered  is  manifest from the scheme of  Representation  of People’s  Act, 1950 and 1951.  Art. 327 of the  Constitution gives full power to Parliament, subject to the provisions of the  Constitution, to make laws with respect to all  matters relating  to or in connection with the  elections  including the preparation of electoral rolls.  It was, therefore, open to  Parliament to prescribe the mode of the  preparation  of the  electoral  roll  and say that it is not  liable  to  be challenged  except in the manner provided.   The  Parliament was, therefore, competent, subject to, the provisions of the Constitution, to exclude the jurisdiction of the Civil Court or  the Tribunal trying an election petition to go into  the question  whether  the name of any person has  been  entered therein  illegally.   The right to stand for election  is  a statutory right and the statute can, therefore, regulate the manner  in which the right has to be enforced or the  remedy for enforcing it.  The 1950 Act provides a complete code  so far  as the preparation and maintenance of  electoral  rolls are  concerned.   The  Act enacts a  complete  machinery  to enquire   into  that  claims  and  objections   as   regards registration as voters and for appeals from the 549 decision  of  the Registering Officer.  Sec. 30 of  the  Act makes  it  clear that Civil Courts have no  jurisdiction  to adjudicate the question.  In these circumstances, we do  not think that it would be incongruous to infer and imply ouster of  the  jurisdiction  of  the  Court  trying  an   election petition.   That inference is strengthened by the fact  that u/s  100(1)(d)  (iv)  of  the 1951 Act  the  result  of  the election   must  have  been  materially  affected  by   non- compliance  with  the provisions of the Constitution  or  of that Act or of Rules and orders made under that Act in order that  High Court may declare an election to be  void.   Non- compliance  with the provisions of s. 19 of the  Act  cannot furnish  a ground for declaring an election void under  that clause.   The  matter is concluded by the decision  of  this Court  in  P. R. Belagali v. B. D. Jatti (A.I.R.  1971  S.C. 1348) [555C, 557F, B] B.   V.  Ramaswamy v. B. M. Krishnamuthy A.I,.R.  1963  S.C. 458 referred to. Vaidyanath  Ramjar v. Sita Ram Mahtu, A.I.R. 1970 S.C.  314, Kabul  Singh  v.  Kundan  Singh A.I.R.  1970  S.C.  340  and Wopansao v. L. Odyuo A.I.R 1971 S.C. 212,3, held applicable. (2)  Neither  the  decision  of  this  Court  in  Vaidyanath Panjiar  which. took the view that violation of s. 23(3)  of the 1950 Act in entering or deleting the names of persons in the   electoral  rolls  after  the  last  date  for   making nomination  relates  to lack of power, nor the  decision  in

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Wopansao which also suggests that where there was a lack  of power, the question can be gone into by the court trying  an election  petition, can by analogy, be extended to an  entry in the electoral roll on the basis of wrong adjudication  of the   question  of  ordinary  residence.   The  concept   of jurisdiction  for the purpose of judicial review is  one  of public  policy  rather than one of logic.  Viewed  from  the aspect  of public policy as reflected in the  provisions  of the  1950 and 1951 Acts, a wrong decision on a  question  of ordinary  residence  for the purpose of entering  a  person, name  in  the  electoral roll should not  be  treated  as  a jurisdictional error which can be reviewed either in a Civil Court or before an election tribunal. [556G] Anisminic  v. Foreign Compensation Tribunal, (1967) 3 W.  R. L. 382: william Murray Estep v. U.S.A. [1945] 324, U.S.  114 at  page 142.  Dissenting judgment of  Brandies J. in  Letus N.  Crowell v. Charles Benson [1931] 285, U.S.  22  referred to. (3)  The question whether a person whose name is entered  in the  roll  qualified under the Constitution and  whether  he suffers from any of the disqualifications specified in  Sec. 16 can always be one into by the Court an election petition. The electoral roll is never conclusive or final in of  these matters. [555H] A.I.R. 1971 S. C. page 1348 followed. (4)Respondent   No.  1  had  challenged  the   election   of respondents  Nos  4 and 5 on the ground that they  were  not qualified  or disqualified to be chosen to lilt the seat  as required  by sec. 100(1) (a) of the 1951 Act.  There was  no allegation  that they were disqualified u/s 16 of  the  1951 Act.   As the names of respondents 4 and 5 were  entered  in the  electoral  roll  and  they  did  not  suffer  an   dis- qualifications, they were electors within the definition  of s. 2(1)(a) of the 1951 Act.  They were, therefore, qualified to be chosen as candidates u/s 3 of the 1951 [Act. 1-550E] Appeal partly allowed.

JUDGMENT: CIVIL APPELLATE JURISDICTION Civil Appeal No. 2650, (NCE) of 1972. Appeal  by special leave from the judgment and  order  dated the  12th/13th  October, 1972 of the Gujarat High  Court  in Election petition No. 9 of 1972. B.   Sen and I. N. Shroff for the appellant. S.   K. Bisaria, for respondent No. 1. The Judgment of the Court was delivered by MATHEW,  J.-In this appeal, by special leave,  the  question for consideration is whether the findings arrived at by  the High Court 550 of Gujarat in Election Petition No. 9 of 1972 on issues  No. 1  and  5,  which  were tried  as  preliminary  issues,  are correct.  An election to elect four members of the Council of  States from the State of Gujarat was to be; held on April 8, 1972. The appellant and respondents No. 1 to 5 filed  nominations. On  Scrutiny, the returning officer held them to  be  valid. On April 8, 1972, the election was held at Gandhi Nagar  and the  appellant  and  respondents 2, 3 and  5  were  declared elected. On May 1, 1972, respondent no. 1 filed the election petition to declare the elections of the appellant and respondents 2. 3 and 5 void.

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The main ground urged in the election petition for declaring the  election  of  respondents  4  and  5  in  the  election petition’ (respondent 5 and the appellant respectively here) void-with  which alone we are concerned in  this  appeal-was that  they were not ordinarily resident in the area  covered by  any parliamentary constituency in the State  of  Gujarat and  that  their  names had been illegally  entered  in  the electrol roll of the respective constituency in Gujarat  and as they were not ’electors’ within the meaning of s. 2(1)(e) of  the  Representation of People Act, 1951, they  were  not eligible  to become candidates in the election.   Respondent No.  1 also raised several other contentions in  support  of the declaration prayed for. The  court  framed  issues  No.  1  to  5  and  tried   them preliminarily  and  entered findings thereon  in  favour  of respondent no.  1 Mr. Raju. In this appeal, the appellant challenges the correctness  of the findings on issues no.  1 and 5. These issues are :               "1. Whether there is misjoinder of parties and               causes of action?               5.    Whether  this Court has jurisdiction  to               decide  whether the entries in  the  electoral               roll   regarding  respondent  No.   4   and/or               respondent No. 5 are valid or not ?" Mr. B. Sen, Counsel for the appellant, did not  address  any argument as regards the correctness of the finding on  issue No. 1. We are therefore only concerned with the correctness of  the finding on issue No. 5. As already stated, the contention on the   basis  of  which  this  issue  was  raised  was   that respondents  No. 4 and 5 in the election petition were  ’not ordinarily   resident   in   any   of   the    parliamentary constitutencies in the State of Gujarat and, as they had not fulfilled  the condition for being entered in the  electoral roll of any parliamentary constituency in Gujarat, they were not  electors  within  the  meaning of  S.  2(1)(e)  of  the Representation of the People Act, 1951, and were  ineligible to stand as candidates in the election. The  High Court on a review of the decisions of  this  Court found  that  the  Court  has jurisdiction  to  go  into  the question  whether  respondents No. 4 and 5 in  the  election petition   were   ordinarily   resident  in   any   of   the parliamentary constituencies in the State of Gujarat as that was a condition precedent to the registering officer getting jurisdiction  to  enter their names in the  electoral  roll. The reasoning of the Court Wig that ordinary residence in  a constituency was a jurisdictional fact 551 and   the  registering  officer  cannot,  by  an   erroneous decision,  determine  the jurisdictional fact  wrongly_  and clothe  himself  with jurisdiction and enter  the  names  of respondents  4  and  5  in  the  election  petition  in  the electoral  roll in. violation of the provisions of s. 19  of the  Representation  of  the  People  Act,  1950.   It   is, therefore, necessary to examine the decisions of this  Court to see whether the finding of the High Court is justified by those decisions. Before  doing  so,  we  think it  proper  to  refer  to  the provisions of the Constitution and the Representation of the People Act, 1950 and 1951 (hereinafter called the ’1950  Act and  ’1951  Act’ respectively) which have a bearing  on  the subject. Article 326 of the Constitution provides that the  elections to  the House of the People and to the Legislative  Assembly of every State shall be on the basis of adult suffrage; that

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is  to say, every person. who is a citizen of India and  who is  not less than twenty-one years. of age on- such date  as may be fixed in that behalf by or under any law made by  the appropriate  legislature and is not  otherwise  disqualified under  the Constitution or any law made by  the  appropriate legislature  on the ground of non-residence, unsoundness  of mind,  crime  or  corrupt  or  illegal  practice,  shall  be entitled  to be registered as a voter at any such  election. Article  327  states that subject to the provisions  of  the Constitution,  Parliament  may by law  make  provision  with respect  to all matters relating to, or in connection  with, elections  to either House of Parliament or to the House  or either  House  of the Legislature of a State  including  the preparation   of  electoral  rolls,  the   delimitation   of constituencies and all other matters necessary for  securing the due constitution of such House or Houses. Section  3  of the 1951 Act provides for  qualification  for membership of the Council of States : "A person shall not be qualified  to be chosen as a representative of any State  or Union  Territory  in the Council of States unless he  is  an elector  for a Parliamentary constituency in that  State  or territory".  Section 2(1) (e) of that Act define,,; an               "2(1)   (e)-’elector’   in   relation   to   a               constituency  means  a person  whose  name  is               entered   in  the  electoral  roll   of   that               constituency  for the time being in force  and               who   is   not   subject   to   any   of   the               disqualifications  mentioned  in s.16  of  the               Representation of the People Act, 1950’. Section  16 of the 1950 Act lays down the  disqualifications for registration in an electoral roll and it provides that a person   shall  be  disqualified  for  registration  in   an electoral  roll  if he is not a citizen of India  or  is  of unsound mind and stands so declared by a competent court  or is  for the time being disqualified from voting  under  the, provisions  of  any law relating to  corrupt  practices  and other  offences in connection with  elections.’  Sub-section (2) of s.16 provides that the name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included, Section  19  of  the 1950 Act lays down  the  conditions  of registration. It provides               "Subject  to the foregoing provisions of  this               Part, every               person who               552               (a)   is not less than twenty-one years of age               on the qualifying date, and               (b)   is    ordinarily    resident    in     a               constituency,   shall   be  entitled   to   be               registered  in  the electoral  roll  for  that               constituency". Section  30  of the 1950 Act bars the  jurisdiction  of  the Civil  Court  to entertain or adjudicate upon  any  question whether any person is or is not entitled to be registered in an  electoral  roll for a constituency; or to  question  the legality  of any action taken by or under the authority   of an electoral registration officer, or of any decision  given by authority appointed under the Act for the revision of any such roll. Section 100(1)(a) of the 1951 Act provides that the election of  a  returned candidate can be declared void by  the  High Court  on the ,ground that on the date of his election,  the returned  candidate was not qualified to be chosen  to  fill

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the  seat in question either in the light of the  provisions of the Constitution or in the light of the provisions of the Act. Under s.100(1)(d)(i) and (iv) of the 1951 Act, the  election of  a returned candidate can be declared to be void  by  the High Court on the ground that the result of the election, in so  far  as  it concerns the  returned  candidate  has  been materially  affected (i) by the improper Acceptance  of  any nomination or (ii) by any noncompliance with the  provisions of  the  Constitution or of the Act or any rules  or  orders made under the 1951 Act. In B. M. Ramaswamy v. B. M. Krishnamurthy (1) this Court was as  concerned  with  the provisions of  the  Mysore  Village Panchayat  and Local Boards Act, Act 10 of 1959.  Under  the provisions  of that Act, the relevant part of the  electoral roll of the Mysore Legislative Assembly was deemed to be the list  of  voters  for the  panchayat  constituency  and  the secretary   of  the  panchayat  bad  to  maintain’  a   duty authenticated   separate,  list  of  voters  of   the   said constituency.   It was because of this that this  Court  was required  in  that  case to consider  the  question  of  the applicability  of  the provisions of the 1950 Act.   Sub  ba Rao, J. in delivering the judgment of the Court said that no civil court has jurisdiction to question the legality of any decision  taken by or under the authority of  the  electoral registration  officer as the terms of S. 30 of the 1950  Act were  clear that the action of the registration  officer  in including  the name of the appellant there in the  electoral roll, though illegal, cannot be questioned in a civil  court and that it could be rectified only in the manner prescribed by  law  or by resorting to any other proper  remedy.   This Court  in  effect  held that the Court  trying  an  election petition has no jurisdiction to go behind the electoral roll and find out whether the name of any person entered  therein was illegally entered. In Baidyanath Panjiar v.Sita Ram Mahto,(2) the question  was whether  in  view of the provisions of s.23(3) of  the  1950 Act, tile name of any person can be entered in the electoral roll subsequent to the last date for making nominations  and whether  that  question can be gone into by the  court  when trying an election petition.  Section 23(3) of, the 1950 Act provides that no amendment, transposition ar deletion of any entry  shall be made under s.22 and that no  direction  ’for the  inclusion  of  a  name  in  the  electoral  roll  of  a constituency shall (1) A.I.R 1963.  S. C. 458. (2) A. T. R. 1970 S. C. 314. 553 be  given after the last date for making nominations 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  submission before  this  Court  was  that  35  names  were  entered  in violation of the provisions of s.23(3) and that was  without power  and, therefore, the votes cast by these persons  were invalid.. Hegde, J. in delivering the judgment of the  Court said  that there was no power in the registering officer  to include any name or delete any name in violation of s.23(3), as  the  sub-section  gives  a  mandate  to  the   electoral registration  officer  not to amend, transpose,  delete  any entry  in the electoral roll of the constituency  after  the last  date  for  making nomination.  for  election  in  that constituency and before the completion of that election.  He held  that if any name is entered or deleted it was  a  case where there was a lack of power and not a case where.  there

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was  an irregular exercise of it and, therefore,  the  court trying  the  election petition could go  into  the  question whether there was violation of s.23(3) or not. In Kabul Singh v. Kundan Singh,(1) the question before  this Court  was  whether  the vote of a  person  whose  name  was entered in the electoral roll of the constituency after  the last  date for making the nomination was valid.  In view  of the  earlier  decision in Baidyanath v.  Sita  Ram(2)  this, Court  held  that the registering officer has  no  power  to enter  his  name in the electoral roll in violation  of  the mandatory provision of s. 23(3) and as it was a case of lack of  power,  the  court  trying  the  election  petition  had jurisdiction to go into the question.  The learned Judge, in the  course  of the judgment, was careful to  add  that  the right  to vote being purely a statutory right, the  validity of  any  Vote  IIas  to be examined  on  the  basis  of  the provisions of the relevant Acts and that in view of s.30  of the  1950  Act,  Civil  Court,-,  have  no  jurisdiction  to entertain or adjudicate upon any question whether any person is  or is not entitled to register himself in the  electoral roll in a constituency or to question the illegality of  the action  taken  by or under the authority  of  the  electoral registration officer or any decision given by any  authority appointed under that Act for the revision of any such  roll. He  also  said that sections 14 to 24 of the  1950  Act  are integrated   provisions  which  form  a  complete  Code   by themselves  in the matter of preparation and maintenance  of electoral  rolls  and that entries found in  the  rolls  are final and that they are not open to challenge either "before a  Civil  Court  or before a tribunal  which  considers  the validity of any election". In P. R. Belagali v. B. D. Jatti(3), the question. was about the  validity  of  the  election  of  B.  D.  Jatti  to  the legislature   of  the  State  in  question  from   Jamkhandi constituency  and one of the contentions was that as he  was not  an ordinary resident in Jamkhandi constituency, he  was not  an  elector in that constituency  and,  therefore,  the election  was void.  Grover, J. delivering the  judgment  of this  Court observed that in order to stand for election  to the  legislative  assembly of a State, a person must  be  an elector  in any assembly constituency in that State, and  he must  not  be subject to any of the  disqualifications  men- tioned  in  s. 16 of the 1950 Act or  the  disqualifications given in Chapter III of the Act.  He also observed that  the condition of being ordinarily (1)  A.I.R.  1970 S.C. 340. (3) A.I.R. 1971 S.C.  1348.  (2) A.I.R. 1970 S.C. 314. 554 resident  in a constituency for the purpose of  registration has   nothing   to  do  with   the   disqualifications   for registration which are prescribed s. 16 of the 1950 Act  and which  alone  are  relevant  to  the  definition  the   word ’elector’ occurring in s. 2 (1) (e) of the Act.  He  further said that the entire scheme of the 1950 Act is that  entries made  in  an  electoral  roll  of  a  constituency  can   be challenged only in accordance with the machinery provided by it  and  not  in any other forum  unless  some  question  of violation of the provisions of the Constitution is involved, The  Court, therefore, held that the question whether  Jatti was ordinarily resident in Jamkhandi constituency during the material  period  and was entitled to be registered  in  the electoral roll of that constituency could not be the subject of  an enquiry except in accordance with the pro visions  of the  1950 Act and that only on the non-compliance  with  the provisions of the Constitution or of the 1951 Act or of  any

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rules  or  orders made under that Act could the  High  Court declare  the election of the returned candidate to  be  void under  clause  (1)  (d) (iv) of 100 of the  1951  Act.   The attention  of  the Court was not drawn to the   decision  in Baidyanath  v.  Sita  Ram(1), where it was  held  that  non- compliance with the provisions of s. 23 (3) of the 1950  Act would  result in improper reception, refusal,  rejection  of vote  which  is  void and would, therefore,  be  ground  for avoiding the election under 100 (1)(d)(iii) of the 1951 Act. In  Wopansao v. N. L. Odyuo and others(2) this  Court  after referring to the decision in Baidyanath v. Sita Ram(3)  held that lack of power of the electoral registration officer  to register or not to register persons as voters resulting from violation  of  the  mandatory  provisions  of  the  relevant statutes  might  lead  to  improper  reception,  refusal  or rejection  of a vote and would, therefore, be a ground  for’ avoiding  the.  election under s. 100 (1) (d) (iii)  of  the 1951 Act. Mr.  Raju,  respondent No. 1 submitted that the right  of  a citizen who fulfils the requirement of law as to age and who is  not subject to any disqualifications as provided by  law passed  by  Parliament  to be registered as a  voter,  is  a constitutional  right granted by article 326 and the  remedy to  enforce the right in a civil court cannot be taken  away by Parliament by law and therefore s. 30 of the 1950 Act  is ultra  vires  the Constitution.  He also said  that  if  the decision  of  the  registering  officer  regarding  ordinary residence in a Constituency were to be final on the question of  the  entitlement  of  a citizen to  be  entered  in  the electoral  roll and if he is to have no recourse to a  civil court  in case the officer decides the question wrongly  the rule  of  law  which  is  a  fundamental  postulate  of  our democratic   polity   would  be  seriously   impaired   and, therefore,  implied ouster of the jurisdiction of the  Court trying  an election petition to go into the question  cannot be inferred. We  are  not  concerned  in  this  with  the  constitutional validity  of s. 30 of the 1950 Act. for the reason  that  no citizen  has sought to enforce his constitutional  right  of being  registered as a voter in a court and has been  denied it.   It is a wise tradition with court not to adjudicate  a constitutional question unless it is absolutely necessary to the disposal of the case in band. (1)  A.I.R. 1970 S.C. 314. (2) A.I.R. 1971 S.C. 555 "Supremacy of law demands that there shall be an opportunity to  have some court to decide whether an erroneous  rule  of law  Was applied and whether the proceedings in which  facts were adjudicated were conducted regularly".  This remark was made  in St. Joseph Slot* Yards Co. v. United States(1),  by Justice Brandeis in his dissenting opinion.  In that case  a public utility was challenging a rate order as confiscatory. ’-It  is entirely clear that the remark is not the law  with respect  to much administrative action.  The remark  may  be the  law with respect to some administrative action, but  if so,.  that action is not clearly identifiable."(2)  But  the question  still  remains  whether die  Brandeis  remark  has validity for some types of administrative action, and if so, what  types.  On this question the opinions  are  singularly unhelpful.   One  may surmise that the Brandeis  remark  has validity  in  the context in which it was  uttered-a  public utility  rate  case in which  confiscation  was  claimed.(3) Article  327 gives full power to Parliament subject  to  the provisions of the Constitution to make laws with respect  to

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all  matters  relating to or in  connection  with  elections including  the  preparation  of electoral  rolls.   It  was, therefore,  open to Parliament to prescribe the mode of  the preparation  of  the electoral roll and say that it  is  not liable  to  be  challenged except in  the  manner  provided. Parliament   was,  therefore,  competent,  subject  to   the provisions of the Constitution, to exclude the  jurisdiction of  the  civil-  court or the tribunal  trying  an  election petition  to  go into the question whether the name  of  any person  has  been entered therein illegally.  The  right  to stand for election is a statutory right and the statute  can therefore  regulate the manner in which the right has to  be enforced or the remedy for enforcing it.  We think that  the 1950, Act provides a complete code so far as the preparation and  maintenance of electoral rolls are concerned.  The  Act enacts  a  complete  machinery to enquire  into  claims  and objections as regards registration as voter and for  appeals from  the decision of the registering officer (see  sections 21  to 24 of the 1950 Act both inclusive).  Elaborate  rules have also been made for inquiry into claims to be registered as  voters and for considering and disposing  of  objections thereto (see rules 12 to 24 of the Registration of Electoral Rules).  The definition of the word ’elector’ in S.  2(1)(e) of  the 1951 Act would indicate that a person whose name  is actually  entered in the electoral roll for the  time  being and who is not subject to any of the disqualifications in s. 16  would  be an elector.  Any person who is  a  citizen  of India  and  who has attained the age as prescribed  by  law, subject  to  the  minimum as provided  in  article  326,  is entitled  to  be  registered  as a  voter  in  the  roll  of electors.    This   is  the  positive  way   of   expressing eligibility for registration as a voter.  He should not also be  subject  to any of the disqualifications  prescribed  by Parliament  by law on the grounds mentioned in the  article. The  Parliament has proscribed in s. 16 of the 1950 Act  the disqualifications. The  question whether a person whose name is entered in  the electoral  roll  is  qualified under  the  Constitution  and whether he suffers (1)  298 U. S. 38. (2)  See Kenneth Culo Davis, "Administrative Law Treatise-". Vol 4, p. 98. (3)  see  Kenneth  CulpDavis,  "Administrative  LawTreatise, Vol. 4, p. 102. 556 from;  any of the disqualifications specified in s.  16  can always  be  gone  into  by  the  Court  trying  an  election petition.   The electoral roll is never conclusive or  final in  respect  of these matters (see the’ decision, in  P.  r. Belagali  v.  B. D. Jatti (supra).  The  argument  that  the question  whether  a  person is  ordinarily  resident  in  a constituency  for the purpose of registering him as a  voter is  a  jurisdictional  fact and  therefore  the  registering officer cannot by a wrong decision give himself jurisdiction to  enter  his name in the electoral roll, revives  all  the casuistic   difficulties   spawned  by   the   doctrine   of jurisdictional   fact  and  the  practical   difficulty   of formulating  a test to distinguish jurisdictional fact  from other facts.  See in this connection the concurring judgment of Justice Frankfurter in William Murray Estep v.  U.S.A.(1) and  the  dissenting judgment of Brandeis, J.  in  Letus  N. Crowell  v.  Charles Benson(2).  The basis  for  identifying jurisdictional   facts  has  never  been  clarified.    And, reflection  on many- of the reported decisions dealing  with the  subject  will  only  serve  to  induce  a  feeling   of

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desperation.   We infer an intention to  witfihold  judicial review  in the situation with which we are concerned  as  we think  that  the Parliament was acting upon  the  conviction that it was dealing with matters which were fully lodged  in the  exclusive jurisdiction of the registering officers  and the appellate authorities. As  already stated, the prayer in the election petition  was to  declare  the, election of the respondents 4 and  5  void under  sub-section  100(1) (a) for thee  reason  that  these respondents  were  not  qualified, or,  disqualified  to  be chosen  to fill the seat under the Constitution or the  1951 Act.   There  was no case for respondent No.  1  that  these respondents  suffered  from  any  of  the  disqualifications mentioned  in s. 16. Nor was there any ground taken  in  the election   petition   that  they  had   not   the   positive qualifications as required by the Constitution or the Acts. The  only  question  is  whether the  ground  taken  in  the election  petition  that since these  respondents  were  not ordinarily   resident   in   any   of   the    Parliamentary constituencies of Gujarat, they had not fulfilled one of the conditions necessary to be satisfied for registration in the electoral roll, can be gone into by-the High Court in trying an election, petition. We  think  that  neither  the  decision  of  this  Court  in Baidyanath Panjiar v. Sita Rain Mahto (supra) which took the view that violation of s. 23(3) of the, 1950 Act in entering or  deleting  the names of persons in  the  electoral  rolls after the last date for making nomination relates to lack of power  nor the decision in Wopansao v. N. L.  Odyuo  (supra) and others which also suggests that where there, was lack of power, the question can be gone into by the court trying  an election petition, can, by analogy, be extended to an  entry in  the electoral roll on the basis of a wrong  adjudication of the question of ordinary residence.  Though the  dividing line  between  lack of jurisdiction or power  and  erroneous exercise  of  it has become thin with the  decision  of  the House of Lords in The Anisminic Case(3) we do not think that the  distinction  between the two has been  completed  wiped out.  We are aware of (1)  327 U. S. 114, 142. (3)  1967 (3) W. L. R. 382. (2)  285 U. S. 22, 557 the  difficulty in formulating an exhaustive rule,  to  tell when there, is lack of power and when there is an  erroneous exercise of it.  The difficulty has arisen because the  word "jurisdiction"  is an expression which is used in a  variety of  senses and takes its colour from its context, (see  per- Diplock, J. at p. 394 in the Anisminic Case).  Whereas th  e ’pure’  theory of jurisdiction would  reduce  jurisdictional control  to  a vanishing point, the adoption of  a  narrower meaning  might  result in a more useful legal  concept  even though the formal structure of law may lose something of its logical  symmetry.  "At bottom the problem of  defining  the concept  of jurisdiction for purpose of judicial review  has been one of public policy rather than one of logic".(1)  And viewed from the aspect ofpublic po.icy as reflected  in the provisions. of the 1950 and 1951 AC,.-." we do not think that  a wrong decision on a question of  ordinary  residence for  the  purpose  of  entering  a  person’s  name   in  the electoral roll should  be treated as  a  jurisdictional error  which  can be judicially reviewed either in  a  civil court or before an election tribunal. And concerned as we are in this case only with  the question whether  the  High  Court trying an  election  petition  has

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jurisdiction totry and decide whether these respondents were ordinarily resident inthe  respective  parliamentary constituency  in  Gujarat,  we should think  the  matter  is concluded by the decision of this Court in Jatti’s case (supra). The  requirement of ordinary residence, as a  condition  for registration  in  the  electoral rolls  in  one  created  by Parliament by s. 19 of the 1950 Act, and as we said, we  see no reason why Parliament should have no power to entrust  to an authority other than a court or a tribunaltrying  an election  petition the exclusive power to decide the  matter finally. We have already referred to the observation of this Court inKabut  Singh’s case (supra) that sections 14 to 24 of  the  1950  Act are integrated provisions  which  form  a complete  code in the matter of preparation and  maintenance of  electoral  rolls Section 30 of that Act makes  it  clear that civil courts have no power to adjudicate the  question. In  these  circumstances we do not think that  it  would  be incongruous  to infer an implied ouster of the  jurisdiction of  the  court trying an election petition to  go  into  the question.  That inference is strengthened by the  fact  that under s. 100 (1) (d) (iv) of the 1951 Act the result of  the election must have been materially acted  noncompliance-with the provisions of the Constitution or of that Act or of  the rules,  orders made under that Act in order that High  Court may declare an election to be void.  Non-compliance with the provisions of s. 19 of the 1950 Act cannot furnish a  ground for declaring an election void under that clause. We,   therefore,  return  to  the  question  whether   these respondents  were not qualified or were disqualified  to  be chosen  to fill the seat under the Constitution or the  1950 Act  or the 1951 Act.  As we said, there was  no  allegation that  they  were disqualified under s. 16 of the  1950  Act. Nor was there any ground taken that they were not  qualified in the sense of their being not citizens or under the age as required.  As their names were entered in the electoral roll and as they did ’not suffer (1)  S.  A.  Smith.   "Judicial  Review  of   Administrative Action", 2nd Edn., p. 98. 10-3S2 Supi.  C 1/74 558 from any of the disqualifications mentioned in s. 16 of  the 1950  Act, they were electors within the definition  of  the term in s. 2(1) (e) of the 1 951 Act.  They were, therefore, qualified to be chosen as candidates under s. 3 of the  1951 Act. We  think that the intention of the Parliament to  oust  the jurisdiction of the court trying an election petition to  go into the question whether a person is ordinarily resident in the constituency in the electoral roll of which his name  is entered is manifest from the scheme of the 1950 and the 1951 Acts.   It  would defeat the object of the 1950 Act  if  the question  whether  a  person was ordinarily  resident  in  a constituency were to be tried afresh in a court or tribunal, trying an election petition. We reverse the finding of the High Court on issue No. 5  and allow  the  appeal to that extent and dismiss  it  in  other respects.   In  the  circumstances we make no  order  as  to costs. S.B.W.                   Appeal partly allowed. 559