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PETITIONER: KABUL SINGH

       Vs.

RESPONDENT: KUNDAN SINGH & ORS.

DATE OF JUDGMENT: 13/08/1969

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

CITATION:  1970 AIR  340            1970 SCR  (1) 845  1969 SCC  (2) 452  CITATOR INFO :  F          1971 SC2123  (6)  RF         1973 SC 717  (10)  R          1973 SC2602  (19,29)  RF         1977 SC1992  (16)  R          1984 SC1911  (3)  R          1986 SC 103  (3)

ACT:     Representation     of    the    People     Act,     1951 Elections--Section  23  sub-s.  (3)--Inclusion  of  name  in electoral roll after last date for filing nomination-Section 23(3)     if     mandatory--Electoral     roll,     finality of--Recriminatory petition, nature of.

HEADNOTE:     In  the elections to the  Punjab   Legislative   Council from  the local authorities constituency the  appellant  who was  declared elected secured one vote more than  the  first respondent.  The first respondent challenged the election of the  appellant on the ground that the vote of H should  have been  held  to  be  void as his name  was  included  in  the electoral  roll  after  the  last date  for  the  filing  of nomination in defiance of the provisions of s. 23(3) of  the Act.   To this the appellant filed a recriminatory  petition contending that the votes of two other persons B and S  also were void as their names were included in the electoral roll after the last date for filing nominations.  He also alleged that the vote of another voter T was void as he had become a government  servant by the time the polling took  place  and therefore  was  disqualified  to be a member  of  any  local board. The High Court came to the conclusion that the  votes of H, B and S were void and counting the validity cast votes declared   the  first   respondent  elected.   But  when  on scrutiny  it  was  found that of B and S  one  of  them  had actually  cast  his  first preference to  the  appellant  he contended  that as the first respondent had  not  challenged the  validity of those votes the trial court could not  have excluded from  consideration the vote cast in his favour  by one of those persons.     HELD:  Section  23(3)  takes  away  the  power  of   the electoral  registration  officer  or  the  chief   electoral

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officer to correct the entries in the electoral rolls or  to include new names in the electoral ’rolls of a  constituency after the last date for making the nominations for  election in that constituency.  It prohibits inclusion of any name in the  electoral  roll after the prescribed date  whether  the application  for  inclusion was made before  or  after  that date. [848 G] Baidyanath  Panjiar v. Sita Ram Mahto, [1970] 1 S.C.R.  839. followed.     (ii)   The  election  petition  and  the   recriminatory petition are parts of one enquiry.  As the validity off  the three votes had come up for consideration and as it was held that those votes were void it necessarily followed that  the votes had to be excluded  in determining  the result of  the election.   The  fact  that the  first  respondent  did  not challenge the validity of those votes was immaterial in  the circumstances of the case. [848 D]     (iii)   There   is  no  provision  in  the   Act   which disqualified  T  from  voting and  the  question  whether  a particular  vote was a valid vote or not has to  be  decided solely on the basis of the  provisions of the Act.  In  view of s. 30 of the 1950 Act the entries found in the  electoral roll  are  final and civil courts 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. [850 E] 846     B.M.  Ramaswamy v.B.M. Krishnamurthy,  [1963]  3  S.C.R. 479, referred to.

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Civil  Appeal  No.  1359 1969.     Appeal  under  s.  116-A of the  Representation  of  the People Act, 1951 from the judgment and order dated March 20, 1969  of  the  Punjab and Haryana  High  Court  in  Election Petition No. 1 of 1968. Harder Singh, for the appellant.     R.K.  Garg,  S.C.  Agarwala,  D.P.  Singh  and   Sumitra Chakravarti for respondent No. 1. The Judgment of the Court was delivered by     Hegde,   J.    This  appeal  under  s.   116A   of   the Representation  of People Act, 1951 (to be shortly  referred to hereinafter as the Act) is directed against the  decision of the High Court of Punjab and Haryana in Election Petition No.  1  of  1968 on its file.  In  that  election  petition, Kundan  Singh, the 1st respondent to this appeal  challenged the validity of the returning officer’s declaration that the appellant  has been duly elected from the  Hoshiarpur  Local Authorities  Constituency to the Punjab Legislative  Council in the election held in April, 1968.  The High Court came to the  conclusion  that  some  of the  votes  polled  in  that election  were invalid votes ,and if the valid  votes  alone are  taken into consideration, as it should have been,  then the  1st respondent is entitled to be declared elected.   It accordingly set aside the declaration made in favour of  the appellant  and  declared the 1st respondent as  having  been duly elected.     We  may now briefly state the material facts.  In  March 1968,  the  Hoshiarpur Local  Authorities  Constituency  was called  upon to elect one member to the  Punjab  Legislative Council.  The election calendar was as follows: (1) The last date for filing nomination papers --12-3-1968.

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(2) Date of scrutiny of the nomination papers    13-3-1968. (3) The last date for withdrawal of candidatures  16-3-1968. (4) Date of polling--                              7-4-1968. (5) Date of counting and declaration of result     8-4-1968. 847 In  that  election, as many as  five  candidates  contested. They are the appellant and the respondents herein.  On April 8, 1968, the returning officer after counting the votes cast declared the appellant to be the successful candidate as  he had secured one vote more than the 1st respondent.  The  1st respondent challenged that declaration in the aforementioned election  petition on various grounds of which, at  present, we  are only concerned with one viz. that the vote  of  Hari Singh  should have been held to be a void vote as  his  name was  included  in the electoral roll on April 5,  1968  i.e. just two days before the date of polling.   In his. turn the appellant  filed a recriminatory petition  contending  inter alia  that the vote of Tarsem Singh was void as by the  time the  polling took place, he had become a government  servant and  the votes of two. other persons namely Harjinder  Singh and Balwant Singh were void as their names were included  in the   electoral  roll  after  the  last  date   for   filing nominations  for the election.  Other grounds taken  in  the recriminatory  petition  are not relevant  for  our  present purpose. They have not been pressed before us.     The election petition came up for trial before  Mahajan, J.  The learned judge submitted the following question to  a Full Bench for decision:        "Whether  allegation in para 4(a) pertaining  to  the vote of Hari Singh is correct and the vote was void and  was polled  in  favour of respondent No. 1 in violation  of  the Rules  and  has.  materially  affected  the  result  of  the election of respondent No. 1". The Full Bench by majority came to. the conclusion that  the vote of Hari Singh was void as his name was included in  the electoral  roll of the constituency after the last date  for making  nominations for the election in  that  constituency. Thereafter  the  case  was  sent back  to  Mahajan,  J.  for deciding  the  issues left undecided.  On the basis  of  the opinion expressed by the Full Bench, the learned judge  came to  the conclusion that the votes of Hari  Singh,  Harjinder Singh  and Balwant Singh were void votes.   Consequently  he recounted the votes validly cast and came to the  conclusion that  the 1 st respondent had been duly elected.  He gave  a declaration to that effect.     As  seen  earlier, the main contention  in  this  appeal relates  to the true effect of sub-s. (3 ) of s. 23  of  the Representation  of  People  Act,  1950  (to  be  hereinafter referred to as "the 1950 Act") which prohibits the  deletion of any entry or inclusion of any name in the electoral  roll of   a  constituency  after  the  last  date   for    making nominations for an election in that constituency and  before the  completion  of that election.  We have  considered  the scope  of  that provision in Baidyanath Panliar  v.  Sitaram Mahto and Ors. (1) in     (1) [1970] 1 S.C.R. 839. L15 Sup. CI/69--10 848 which we have delivered judgment just now.  In view of  that decision,  the view taken by the majority of the Full  Bench must be held to be correct.     Evidently  under an erroneous impression that  Harjinder Singh and Balwant Singh had voted against him, the appellant had contended in his recriminatory petition that their votes were invalid. But on scrutiny it was found that one of  them

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had given his first preference to him.  Now it is  contended on his behalf that as the 1st respondent had not  challenged the validity of those votes, the trial court could not  have excluded  from consideration the vote cast in his favour  by one of those persons.  This is an untenable contention.  The votes  of  Harjinder  Singh  and  Balwant  Singh  have  been rejected on the ground that their names were included in the electoral roll in defiance of the mandate given under s.  23 (3)  of the 1950 Act.  What applies to. Hari  Singh  equally applies to Harjinder Singh and Balwant Singh.  The fact that the  1st respondent did not challenge the validity of  those votes is immaterial in the circumstances of this case.   The election  petition   and  the  recriminatory  petition  were parts of one enquiry.  As the validity of these three  votes had  come up for consideration and as it has been held  that those  votes  are void votes, it necessarily  ,follows  that those   votes  must  be  excluded  from   consideration   in determining the result of the election.   Another contention urged by Shri Harder Singh is that only the  votes  of  those  electors  who  had  applied  for  the inclusion  of  their names in the electoral roll  after  the period mentioned in s. 23(3) of the 1950 Act can be held  to be  void; as the person who cast his vote in favour  of  the appellant  had applied for inclusion of his name  some  days before  the last date for making nominations, the  inclusion of  his name in the roll after that date will not  make  his vote void.  in support of his contention, he placed tellance on the decision of the Patna High Court in Ramswaroap Prasad Yadav v. Jagat Kishore Prasad Narain Singh(1).  The ratio of that decision has no application to the facts of the present case.  That decision was rendered before sub-s. (3) of s. 23 of  the  1950 Act was incorporated into the 1951  Act.   The mandate  of  that  provision is plain  and  unambiguous.  It prohibits inclusion of any name in the electoral roll  after the  prescribed date whether the application  for  inclusion was made before or after that date.     The only other contention that remains to be  considered is  that  the High Court should have held that the  vote  of Tarsem  Singh  is invalid.  It is not disputed  that  Tarsem Singh’s  name  finds  place in the  electoral  roll  of  the constituency  but the argument was that as he had  taken  up government service subsequent to the inclusion  of his  name in the electoral roll, he became disqualified to be a (1) XVII E.L.R., 110. 849 member of any local board and therefore he was not  entitled to  vote in the elections This contention cannot be  upheld. Section 62 of the Act provides thus : "62(1).   No  person  who is not, and  except  as  expressly provided  by  this Act, every person who is,  for  the  time being  entered  in the electoral roll  of  any  constituency shall be entitled to vote in that constituency. (2)  No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950. (3)  No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more  than  one  such constituency, his votes  in  all  such constituencies shall be void. (4)  No  person  shall  at any election  vote  in  the  same constituency  more than once, notwithstanding that his  name may  have  been registered in the electoral  roll  for  that constituency more than once, and if he does so vote, all his votes in that constituency shall be void. (5)  No person shall vote at any election if he is  confined

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in  a  prison, whether under a sentence of  imprisonment  or transportation or otherwise, or is in the lawful custody  of the police : Provided  that nothing in this sub-section shall apply to  a person  subjected to preventive detention under any law  for the time being in force." In view of those -provisions read with s. 23(3) of the  1950 Act  every person who is for the time being entered  in  the electoral  roll  of a constituency as it stood on  the  last date  for  making  nominations  for  an  election  in   that constituency is entitled to vote unless it is shown that  he is  prohibited  by  any of the provisions of  the  Act  from exercising his vote.  The prohibitions contained in  sub-ss. 3,  4 and 5 of S. 62 of the Act do not apply to the case  of Tarsem  Singh.   Therefore  we  have  to  see  whether   the prohibition  contained  in sub-s. (2) applied to  his  case. That  sub-section  says  that no person  shall  vote  at  an election in any constituency if he is subject to any of  the disqualifications referred to in S. 16 of the 1950 Act. This takes us to S. 16 of the 1950 Act.  It reads thus: "16(1) A person shall be disqualified for registration in an electoral roll if he- (a)  is not a citizen of India; or 850 (b)  is  of  unsound  mind  and  stands  so  declared  by  a competent court; or (c)  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. (2)  The  name  of any person who  becomes  so  disqualified after  registration  shall  forthwith  be  struck  off   the electoral roll in which it is included : Provided  that  the  name  of  any  person  struck  off  the electoral roll of a constituency by reason of a  disqualifi- cation  under clause (c) of sub-section (1) shall  forthwith be  re-instated  in that roll if such  disqualification  is, during  the period such roll is in force, removed under  any law authorizing such removal." It  is not the case of the appellant that Tarsem  Singh  had incurred any of the disqualifications mentioned therein.  No other  provision of law in the Act or in any other  law  was brought to our notice disqualifying him from exercising  his vote.  The right to vote being purely a statutory right, the validity of any vote has to be examined on the basis of  the provisions  of  the  Act.  We cannot  travel  outside  those provisions to find out whether a particular vote was a valid vote or not.  In view of s. 30 of the 1950 Act, civil courts 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.  Part III of the  1950  Act deals with the preparation of rolls in a constituency.   The provisions  contained therein prescribe  the  qualifications for  being registered as a voter (S. 19),  disqualifications which  disentitle a person from being registered as a  voter (S.  16),  revision  of the rolls  (s.  21),  correction  of entries  in  the electoral rolls (s. 22), inclusion  of  the names in the electoral rolls (S. 23), appeals against orders passed by the concerned authorities under ss. 22 and 23  (S. 24).   Sections  14  to 24 of the 1950  Act  are  integrated provisions.  They form a complete code by themselves in  the matter  of preparation and maintenance of  electoral  rolls.

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It is clear from those provisions that the entries found  in the  electoral  roll  are final and they  are  not  open  to challenge  either before a civil court or before a  tribunal which considers the validity of any election.  In B.   M. Ramaswamy v. B. -M. Krishnamurthy and Ors. (1)  this Court (1) [1963] 3 S.C.R. 479. 851 came  to. the conclusion that the finality of the  electoral roll  cannot be challenged in a proceeding  challenging  the validity of the election.     For  the reasons mentioned above this appeal  fails  and the same is dismissed with costs. Y.P-                                       Appeal dismissed. 852