REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4201  OF 2008

Laxmi Kant Bajpai                                                     ………….. Appellant

Versus

Hazi Yaqoob & Ors.                                                  …………..Respondents

J U D G M E N T

H.L. Dattu, J.

1) Mr.  Hazi  Yaqoob-respondent  is  the  elected  candidate  in  the  elections  

held from 381 Meerut  Assembly  Constituency to the  U.P.  Legislative  

Assembly.   His  elections  had  been  called  in  question  before  the  

Allahabad  High  Court  by  the  defeated  candidate  by  filing  Election  

Petition  under  the  provisions  of  Representation  of  People  Act,  1951.  

Petition  is  rejected  by  the  Allahabad  High  Court  by  its  order  dated  

12.5.2008.  

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2) We  may  now  briefly  state  the  material  facts  :  The  Delimitation  

Commission of India under Section 10(1) of the Delimitation Act, 1972,  

had issued an order in respect of the delimitation of Parliamentary and  

Assembly constituencies of the State of Uttar Pradesh and published the  

same by issuing a notification dated 8th December, 1973. Table B in the  

notification provides the territorial constituencies into which the State of  

Uttar Pradesh was divided for the purpose of election to the Legislative  

Assembly and the extent of each such constituency. Table B also shows  

the  extent  of  397  Meerut  assembly  constituency  (now  381  Meerut  

constituency) to be the same as Meerut Municipality (excluding wards 1  

to  3,  14  and  15).  This  order  was  also  a  part  of  the  Delimitation  of  

Parliamentary and Assembly Constituencies Order, 1976, issued by the  

Election Commission of India.  

3) On 17.3.2007, notification for electing a member to the U.P Legislative  

Assembly  from 381  Meerut  Assembly  constituency  was  issued.   The  

polling for the constituency was held on 13.4.2007 and the results were  

declared  on  11.5.2007.  Respondent  no.1  ,  Hazi  Yakoob  was  declared  

elected by a margin of 1089 votes.  

4) Election Petition before the High Court.  

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The appellant had challenged the election of respondent no.1 by filing  

an election petition before the Allahabad High Court. The appellant  

mainly relied on the following grounds in support of the prayer in the  

election petition.  They are :

(i) The  result  of  the  election  in  favour  of  the  elected  

candidate  was  materially  affected  by  the  improper  

reception  of  23,431  void  votes  as  they  were  from 21  

localities/colonies/mohallas  outside  the  territorial  

boundaries of the constituency.

(ii) The  aforesaid  21  localities,  did  not  form  part  of  381  

Meerut  constituency  as  delimited  by  the  1973  

Delimitation  Order  and  yet  were  included  within  the  

constituency  and  the  voters  from  these  colonies  were  

included in the electoral roll of the constituency.

(iii) The  delimitation  can  be  carried  out  only  by  the  

Delimitation Commission and yet in contravention of the  

published  order  of  delimitation,  the  21  colonies  have  

been included in the constituency. Therefore the elections  

is liable to be declared void on the grounds of Section  

100 (1)(d) (iii) and (iv) of the Representation of Peoples  

Act, 1951.

(iv) The  communication  dated  24.3.2007  by  the  Under  

Secretary  of  the  Election  Commission  of  India  to  the  

Chief  Electoral  Officer,  Uttar  Pradesh,  was  that  the  

geographical  boundaries  delimited  during  the  previous  

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delimitation cannot undergo any change, unless the new  

delimitation  order  is  implemented.  It  is  further  stated  

that,   on 26.3.2007 the Officer  on Special  Duty,  Chief  

Electoral  Officer,  U.P forwarded the aforesaid letter  to  

the District Election Officer,  Meerut, informing him that  

there cannot be any change in the territorial boundaries of  

the  Legislative  Assembly  constituency  until  the  

implementation  of  the  new delimitation  order  and  this  

amounts  to  a  direction  on  the  part  of  the  Election  

Commission  of  India,  and  despite  such  direction  the  

names of the voters from the 21 localities continued to be  

included in  the  electoral  roll  of  381 Meerut  Assembly  

constituency and were permitted to vote in the elections.  

Therefore, the election of returned candidate  should be  

declared  as  void  on  the  ground  that  the  result  of  the  

election insofar as it concerns the returned candidate has  

been materially affected by improper reception of votes  

and  by  non-compliance  of  the  provisions  of  the  

Constitution and the Rules made under the 1951 Act.

5) After service of notice of election petition, the respondent no.1 did not  

choose to file written statement, but filed an application under Order VII  

Rule 11 of the Code of Civil Procedure to reject the election petition,  

primarily on the ground, that no cause of action has been made out on the  

basis  of the averments  made in the election petition and therefore the  

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election  petition  is  liable  to  be  dismissed.   Further,  according  to  

respondent No.1, the averments made by the appellant cannot be ground  

for declaring an election to be void under Section 100 (1) (d) (iii) and (iv)  

of the Representation of Peoples Act, 1951.  

6) Order passed by the High Court :    

The High Court after a detailed discussion of the pleadings of the parties  

has come to the conclusion that election petition does not disclose any  

cause of action.  The material fact to be included in the election petition  

should have been in relation to the non-inclusion of the 21 localities in  

the Meerut municipality constituency.  Accordingly, the High Court has  

dismissed  the  election  petition  for  non-disclosure  of  cause  of  action.  

Hence, the appeal. It may be mentioned that there was no appearance on  

the  side of  the  respondents.  However,  after  the  matter  was heard and  

reserved for judgment, the learned counsel Sri Praveen Jain has entered  

appearance and with the permission of the court,  has filed his written  

submissions. The same are taken on record.  

7) Contentions on behalf of the appellant :  

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Mr. Ravi Shankar Prasad, the learned senior counsel for the appellant  

submitted  that  in  the  election  petition  filed,  the  appellant  has  

sufficiently  indicated  the  cause  of  action  and  the  material  facts,  

though the provision of the Act is not mentioned and therefore, it is  

futile to contend that the appellant has not spelt out the cause of action  

in the pleadings.  In aid of his submission the learned senior counsel  

has placed reliance on the observations made by this Court in the case  

of Shri  Shankar Babaji  Savant v. Shri  Sakharam Vithoba Salunkhe  

and  Ors.,  1965  (2)  SCR  403.   It  is  further  submitted  that  if  the  

electoral  roll  was  prepared  in  violation  of  Article  173  of  the  

Constitution of India, the same is a nullity and, therefore, the result of  

the election in so far as it  concerns the elected candidate has been  

materially affected.  It is further contended that Section 2(b) of the  

Representation  of  People  Act,  1950  provides  that  “Assembly  

Constituency” means a Constituency provided by law for the purpose  

of election to the legislative Assembly of a State. It shall be filled by  

persons chosen by direct election from Assembly Constituencies and  

Section 7(3)  of  the Act provides  that  the extent  of  each Assembly  

Constituency shall be as determined by the orders of the Delimitation  

Commission made under the provisions of Delimitation Act, 1972 and  

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therefore,  the  electoral  roll  for  elections  to  the  State  Legislative  

Assembly must relate only to the extent of the territorial division as  

determined by the Delimitation Commission.  The geographical extent  

of the Assembly Constituency cannot be changed nor can any area be  

added  therein  or  excluded  therefrom  by  any  authority  except  the  

Delimitation Commission. The learned senior counsel would submit,  

that, the electoral roll of an Assembly Constituency must be confined  

to  the  area  or  extent  of  the concerned Assembly  Constituency and  

cannot include any area outside the territorial limits of that Assembly  

Constituency  nor  can  voters  of  any  such  other  area  vote  in  that  

Assembly Constituency and in the instant case, voters from outside  

the territorial boundaries of 381 Meerut Assembly Constituency were  

permitted to vote in the elections held and though their votes were  

void, they were improperly and illegally received as valid votes and  

the same has materially affected the result of the election in so far as it  

concerns the returned candidate, and therefore, his election is liable to  

be  declared  void  under  Section  100(1)(d)(iii)  and  (iv)  of  

Representation of the People Act, 1951.  

8) Contentions on behalf of respondent:  

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The learned counsel Shri Praveen Jain for the respondent submitted  

that  the  Election  Petition  is  liable  to  be  dismissed  as  it  does  not  

disclose any cause of action.  It is further submitted, that, the election  

petition is based on the ground that certain areas outside the territory  

of 381 Meerut Assembly Constituency were not only included in this  

constituency but the voters of these areas were also allowed to vote in  

the elections and this has materially affected the result of the election  

insofar as it concerns the returned candidate and thus the dispute in  

the present election petition is about the addition of some area in the  

territorial  constituency  and  not  about  any  addition  or  deletion  of  

names in the electoral roll and this cannot be a ground for declaring  

the  election  of  the  returned  candidate  to  be  void  under  Section  

100(i)(d)(iii) and (iv) of the Representation of  Peoples Act, 1951.  It  

is further contended that the election petition can be filed only if some  

illegality contemplated under Section 100 of the Act is found to have  

been committed during the process of the election but in the present  

case, the alleged illegality that has been pointed out relates to a stage  

prior to the commencement of the process of election.  It is submitted  

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  

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was  illegally  entered  and  any  entry  in  the  electoral  roll  of  a  

constituency  cannot  be  amended  or  deleted  after  the  last  date  of  

making nomination for the election in that constituency.  In aid of his  

submission, reliance is placed on several decisions of this Court.  The  

reference  will  be  made  to  those  decisions  while  considering  the  

contentions canvassed by the learned counsel for the parties.

9) Discussion:  

Section 83 of  the Representation of Peoples  Act,  1951 deals  with the  

contents of an election petition. Section 83 (1) of the Act reads:-

     “An election petition:-

a) shall contain a concise statement of the material facts on  which the appellant relies;

b) shall set forth full particulars of any corrupt practice that  the  appellant  alleges,  including  as  full  a  statement  as  possible  of  the  names  of  the  parties  alleged  to  have  committed such corrupt practice and the date and place of  the commission of each such practice; and

c) shall  be  signed  by  the  appellant  and  verified  in  the  manner laid down in the Code of Civil Procedure, 1908  for the verification of pleadings.”

10)Sub-section  (d)  of  Section  100 of  the  Representation  of  Peoples  Act,  

1951 which deals with grounds for declaring election to be void reads:-

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“(d) that the result  of the election,  in so far as it  concerns a  

returned candidate, has been materially affected-

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of  the  returned  candidate  by  an  agent  other  than  his  election agent, or

(iii) by the improper reception, refusal or rejection of any  vote or the reception of any vote which is void, or  

(iv) by any non-compliance with  the  provisions of  the  Constitution or of this Act or of any rules or orders  made under this Act.”

11)The power to carry out delimitation of the constituencies has been vested  

with  the  Delimitation  Commission  constituted  under  the  Delimitation  

Act, 2002. The object of the Act is to provide for the re-adjustment of the  

allocation of seats in the House of People to the States, the total number  

of seats in the legislative assembly of each State, the division of each  

State  and  each  Union  Territory  having   a  legislative  assembly  in  to  

territorial  constituencies  for  elections  to  the  House  of  People  and  

legislative assemblies of the States and Union Territories and for matters  

connected therewith.  Section 8 of the Act provides for re-adjustment of  

number  of  seats,  Section  9  of  the  Act  provides  for  Delimitation  of  

constituencies, Section 10 of the Act provides for publication of orders  

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and their date of operation by Commission in the Gazette of India and in  

the  official  Gazettes  of  the  State  concerned  and  on  such  publication,  

every such order shall have the force of law and shall not be called in  

question in any court.  Section 11 of the Act mandates that the Election  

Commission shall maintain delimitation orders up-to-date.

12)The appellant relies on the purported communication dated 24.3.2007 by  

the Under Secretary of the Election Commission of India to the Chief  

Electoral  Officer, Uttar Pradesh. The effect of the communication was  

that  the  geographical  boundaries  delimited  during  the  previous  

delimitation  cannot  undergo  any  change,  unless  the  new  delimitation  

order is implemented. On 26.3.2007 the Officer on Special Duty, Chief  

Electoral  Officer,  U.P  forwarded  the  aforesaid  letter  to  the  District  

Election Officer, Meerut informing him that there cannot be any change  

in  the  territorial  boundaries  of  the  Legislative  Assembly  constituency  

until the implementation of the new delimitation order. The contention of  

the appellant is that this amounts to a direction on the part of the Election  

Commission of India, and despite such direction the names of the voters  

from the 21 localities continued to be included in the electoral roll of 381  

Meerut Assembly constituency. The appellant further contends that if the  

total number of votes received by respondent no.1 from these localities  

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were to be excluded, the results of the election would have been different,  

and hence the results of the election have been materially affected.   

13)The process and procedure of preparing electoral rolls is governed by the  

Registration of Electors Rules, 1960. Rule 24 of the said rules reads:-

“24.  Special  provision  for  preparation  of  rolls  on  re- delimitation of constituencies.— (1) If any constituency is delimited a new in accordance  with law and it is necessary urgently to prepare the roll  for  such  constituency,  the  Election  Commission  may  direct that it shall be prepared— (a) by putting together the rolls of such of the existing  constituencies or parts thereof as are comprised within  the new constituency; and (b)  by  making  appropriate  alterations  in  the  arrangement,  serial  numbering  and  headings  of  the  rolls so compiled.

(2) The roll so prepared shall be published in the manner  specified in rule    22 and shall, on such publication, be  the electoral roll for the new constituency.”

14)The  Rule  provides  that  if  any  constituency  is  delimited  a  new  in  

accordance with law and if it is necessary to prepone the roll for such  

constituency, the election commission may direct that it shall be prepared  

by putting together the rolls of such of the existing constituencies or parts  

thereof  as  are  comprised  within  the  new  constituency.   The  rolls  so  

prepared requires to be published in the manner provided in Rule 22 of  

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the  Rules.   On  such  publication  of  the  rolls,  the  same  shall  be  the  

electoral roll for the new constituency.  

15)In  the  present  case,  there  has  been  no  re-delimitation  of  the  Meerut  

constituency  carried  out  by  the  Delimitation  Commission  under  the  

auspices  of  the  Delimitation  Act.  The  earlier  order  published  by  the  

Commission  is  still  in  force.  As  stated  above,  delimitation  of  

parliamentary and assembly constituencies is the exclusive domain of the  

Delimitation  Commission.  The  Election  Commission’s  power  with  

respect  to  delimitation  of  constituencies  extends  to  correcting  any  

mistakes which might have crept in the delimitation order.  

16)In other circumstances, however, once an electoral roll is published, it  

becomes the final electoral roll of the constituency. This is also specified  

in Rule 22 of the specified rules which reads:-

“22. Final publication of roll.—

(1) The registration officer shall thereafter— (a)  prepare  a  list  of  amendments  to  carry  out  his  decisions under rules 18, 20, 321 and 21A and to correct  any  clerical  or  printing  errors  or  other  inaccuracies  subsequently discovered in the roll;  (b) publish the roll, together with the list of amendments,  by  making  a  complete  copy  thereof  available  for  inspection  and  displaying  a  notice  in  Form  16  at  his  office; and

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(c) subject to such general or special directions as may  be  given  by  the  Election  Commission  supply,  free  of  cost, two copies of the roll, as finally published, with the  list  of  amendments,  if  any,  to every political  party  for  which  a  symbol  has  been  exclusively  reserved  by  the  Election Commission.

(2) On such publication, the roll together with the list of  amendments  shall  be  the  electoral  roll  of  the  constituency.”

17)Hence,  the  electoral  roll  published  becomes  the  electoral  roll  of  the  

constituency,  and  therefore  the  electoral  roll  containing  the  names  of  

people residing in the 21 localities, is the final and valid electoral roll for  

the Meerut  assembly constituency.  The only alteration to the electoral  

roll can only be brought about by following the procedure prescribed in  

the relevant rules. In this context it is also pertinent to mention Section 30  

of the Representation of Peoples Act, 1950. The section reads:-

“No civil court shall have jurisdiction—

(a) 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

(b)  to  question  the  legality  of  any  action  taken  by  or  under the authority of an electoral registration officer, or  of any decision given by any authority appointed under  this Act for the revision of any such roll.”

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18)The wordings of the section are very clear and it conveys the meaning  

that a High Court cannot set aside an election on the ground that though  

the  name  of  a  candidate  is  in  the  list,  it  had  been  included  therein  

illegally.  This  court  in  the  case  of  B.M  Ramaswamy  v.  B.M  

Krishnamurthy  and  others  (AIR 1963 SCR 479),  has  stated  that  “the  

terms of the section are clear and the action of the electoral registration  

officer in including the name of the appellant in the electoral roll, though  

illegal,  cannot be questioned in a civil court : but it could be rectified  

only in the manner prescribed by law, i.e., by preferring an appeal under  

rule 24 of the Rules, or by resorting to any other appropriate remedy.”

19)It is clear from the above discussion that the Courts cannot decide any  

issue relating to issuance or revision of an electoral roll. The remedy lies  

in the procedure laid down in the prescribed rules.  There is scope for  

challenging the contents of the electoral roll. However, once an electoral  

roll is finally published, it becomes final and then no court can interfere  

with the said publication of the electoral roll and it shall be the electoral  

roll of the constituency.  

20)In this regard, reference can be made to the observations made by this  

Court  in  the  case  of   Shyamdeo Pd.  Singh v.  Nawal  Kishore  Yadav,  

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[(2000) 8 SCC 46].  The Court has observed that inclusion of person or  

persons in the electoral roll by an authority empowered in law to prepare  

the electoral rolls though they were not qualified to be so enrolled cannot  

be a ground for setting aside an election of a returned candidate under  

Sub-clause (iii) or (iv) of Clause (d) of Sub-section (1) of Section 100 of  

the Representation of  Peoples Act, 1951. The court has observed:-

“The  electoral  rolls  may  contain  error  and  they  may  remain to be corrected or the appeals in respect thereof  may  be  pending,  the  electoral  roll  effective  for  the  ensuing election must achieve a finality at a given point  of  time (such as the  last  date  prescribed for  filing  the  nominations).  It  has  to  be  remembered  that  right  to  contest an election, a right to vote and a right to object to  an ineligible person exercising right to vote are all rights  and obligations created by Statute. They are not the rights  in  common  law.  Bringing  into  existence  Houses  or  Institutions responsible  for functioning of a democracy  have a vital constitutional objective to achieve as they are  so essential for the functioning of a democracy. A breach  of any statutory right or obligation should not come in  the way of the process directed towards fulfilling the high  objective  of  bringing  into  existence  of  a  House  or  Institution  contemplated  by  Constitution  as  enabling  democratic functioning of the country.”  

           The Court has further observed:

“To  sum  up  we  are  of  the  opinion  that  inclusion  of  person  or  persons  in  the  electoral  roll  by  an  authority  empowered in law to prepare the electoral rolls, though  they were  not  qualified to be so enrolled,  cannot  be a  ground  for  setting  aside  an  election  of  a  returned  candidate under sub-clause (iii) or (iv) of clause (d) of  sub-section (1) of Section 100 of the Representation of  the People Act, 1951. A person enrolled in the electoral  

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list  by  an  authority  empowered  by  law  to  prepare  an  electoral roll or to include a name therein is entitled to  cast a vote unless disqualified under sub-sections (2) to  (5) of Section 62 of the Representation of the People Act,  1951. A person enrolled in the electoral  roll  cannot be  excluded from exercising  his  right  to  cast  vote  on the  ground that he did not satisfy the eligibility requirement  as laid down in Section 19 or 27(5) of the Representation  of the People Act, 1950.”

21)The Constitution Bench of this court in the case of Nripendra Bahadur  

Singh v. Jai Ram Verma and ors., [1978] 1 SCC 208, wherein it was held  

that the finality of the electoral roll cannot be challenged in an election  

petition even if certain irregularities had taken place in the preparation of  

the electoral roll or if subsequent disqualification had taken place and the  

electoral roll had on that score cannot be corrected before the last hour of  

making nominations. The court further stated that after that dead line the  

electoral roll of a constituency cannot be interfered with and no one can  

go  behind  the  entries  except  for  the  purpose  of  considering  

disqualification under Section 16 of the 1950 Act.  

22)Section 11 of the Delimitation Act, 2002 reads:-

“11. Power to maintain delimitation orders up-to-date.— (1) The Election Commission may, from time to time, by  notification in  the Gazette  of  India  and in  the Official  Gazette of the State concerned,—

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(a) correct any printing mistake in any of the orders made  by the Commission under section 9 or any error arising  therein from an inadvertent slip or omission; and (b) where the boundaries or name of any district or any  territorial division mentioned in any of the said orders are  or is altered, make such amendments as appear to it to be  necessary or expedient for bringing the orders up-to-date,  so, however, that the boundaries or areas or extent of any  constituency  shall  not  be  changed  by  any  such  notification.

(2) Every notification under this section shall be laid, as  soon as may be after it is issued, before the House of the  People  and  the  Legislative  Assembly  of  the  State  concerned.”

It is pertinent to consider Section 9 (1) (b) of the Representation of  

People Act, 1950. It reads:-

“(1) The Election Commission may, from time to time,  by notification published in the Gazette of India and in  the Official Gazette of the State concerned,- …………………………………………………………… ………………………………… (b) where the boundaries or name of any district or any  territorial  division  mentioned  in  the  Order  are  or  is  altered,  make  such  amendments  as  appear  to  it  to  be  necessary  or  expedient  for  bringing  the  Order  up-to- date.”

23)Comparing Section 11(1)(b) of the Delimitation Act and Section 9 (1)(b)  

of  the  Representation  of  People  Act,  1950,  makes  it  amply clear  that  

Section  11  (1)(b)  of  the  Delimitation  Act  further  qualifies  Section  9  

(1)(b) of the Representation of People Act, 1950 and provides for a clear  

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restriction on the powers of the Election Commission in as much as the  

power  of  the  Election  Commission   shall  not  extend to  changing  the  

boundaries  or  areas  or  extent  of  any  constituency.  The  power  of  the  

Election  Commission  as  envisaged  in  the  above  mentioned  sections,  

flows from the order published by the Delimitation Commission. A three  

Judge Bench of this court in the case of Election Commission of India v.  

Mohd.  Abdul  Ghani  [(1995)  6  SCC 721]  has  explained  the  aforesaid  

principle.  In this  case the issue was that  the river  Ganges had started  

changing  its  course  in  1957,  that  ultimately  resulted  in  causing  16  

villages to be located towards the east bank of the river. After this change  

these  villages  came  to  form part  of  the  territorial  division  named  as  

District Malda. The State Government made the consequential changes in  

the description of these villages when they became part of District Malda  

for  all  administrative  purposes.  In  spite  of  this  geographical  change  

resulting in inclusion of these 16 villages  in the  territorial  division of  

District Malda for administrative purposes, the position of these villages  

remained unaltered for election purposes and they continued to form part  

of  8-Jangipur  Parliamentary  Constituency  in  accordance  with  the  

Delimitation Order of 1976 made on the basis of the previous census held  

in 1971. The residents of these villages filed a writ petition claiming that  

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as a result of the above geographical change, these 16 villages should  

now form part of the Malda Parliamentary Constituency since they have  

become  a  part  of  District  Malda  instead  of  the  earlier  District  

Murshidabad. It  was claimed that this is the duty cast  on the Election  

Commission to make such a change by virtue of Section 9(1) (b) of the  

Representation  of  the  People  Act,  1950.  However  this  court  placing  

reliance  of  the  import  of  the  wordings  of  Section  9  (1)(b)  of  the  

Representation  of  Peoples  Act,  1950  and  Section  11  (1)(b)  of  the  

Delimitation Act, observed that the power of the Election Commission as  

envisaged by the  sections extended to  merely update  the Delimitation  

Order by making the necessary changes on account of subsequent events  

to correct the description in the Delimitation Order which has become  

inappropriate and therefore this power cannot extend to alteration of the  

boundaries  or  area  or  extent  of  any  constituency  as  shown  in  the  

Delimitation Order.

24) Therefore, it is clear that the power of delimitation of constituencies  

vests in the Delimitation Commission and the preparation of electoral  

rolls  vests  in  the  Election  Commission.  The  communication  dated  

24.3.2007  by  the  Under  Secretary  of  the  Election  Commission  of  

India  to  the  Chief  Electoral  Officer,  Uttar  Pradesh,  is  merely  a  

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reiteration  of  the  above provision  as  rightly  observed by the  High  

Court. In the absence of a fresh order of delimitation issued by the  

Delimitation Commission, the Election Commission had no power to  

change the electoral roll for the constituency.

24)The notification dated 8th December, 1973 published by the Delimitation  

Commission  mentions  that  the  extent  of  397  Meerut  Assembly  

constituency shall be Meerut Municipality excluding Ward Nos. 1, 2, 3,  

14 and 15 :

“MEERUT DISTRICT  ...................................................................  396.  Meerut  Cantonment  :  Wards  1  to  3,  14  and  15  in  Meerut  Municipality,  Meerut  Cantonment,  Kanker  Khera  T.A.,  Abdullapur  T.A.,  Buxer   Khera   T.A.,  and  L.Cs.,  36-  Nagla Tashi Kasampur, 37-Sikhera,  38-Behchola,   43- Aurangshahpur  Diggi,  and  44-Abdullapur  in  Meerut  pargana in Meerut tahsil. 397. Meerut : Meerut Municipality, (excluding wards 1  to 3, 14 and 15)”

26) The notification published on 16th January 1976 also stated the same  

for  397  Meerut  constituency  (now  381  constituency).  It  is  the  

appellant’s contention that localities which were outside the territorial  

boundaries of the Meerut constituency at the time of publication of  

these  notifications,  were  subsequently  included.  In  light  of  this  

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contention it is pertinent to look at the relevant provisions of the U.P  

Municipalities Act, 1994 :  

Section 11-B of the Act reads:-

“11-B. Delimitation Order.—

(1) The State Government shall, by order, determine-- (a) the number of wards in to which each municipal area  shall  be  divided  for  purposes  of  elections  to  the  municipality; (b) the extent of each ward; (c) [omitted] (d) the number of seats to be reserved for the Scheduled  Castes, the Scheduled Tribes, the backward classes and  the women.

(2) The draft of the Order under Sub-section (1) shall be  published in the manner prescribed for a period of not  less than seven days.

(3) The State Government shall consider any objections  filed under Sub-section (2) and the draft Order shall, if  necessary, be amended, altered or modified accordingly  and thereupon it shall become final.”

Section 11-C of the Act reads:-

“11-C. Amendment of Delimitation Order.— (1)  The  State  Government  may,  after  consulting  the  Board concerned, by a subsequent Order, alter or amend  the final order under Sub-section (3) of Section 11-B.

(2) For the alteration or amendment  of any order Sub- section (1), the provisions of Sub-sections (2) and (3) of  Section 11-B shall mutatis mutandis apply.”

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27) The sections clearly reveal that the State Government has the power to  

break up every municipality into territorial constituencies to be called  

‘wards’. Section 11-C clearly empowers the State Government to alter  

or amend the delimitation carried out earlier. There is no bar on the  

State Government to increase the area of a ward. Hence the contention  

of  the  appellant  that  delimitation  is  to  be  carried  out  only  by  the  

Delimitation  Commission  fails  as  the  notifications  issued  by  the  

Delimitation Commission in 1973 and 1976 specify that the extent of  

381  Meerut  constituency  shall  be  the  same  as  the  Meerut  

municipality. Had the intention of the Commission been to restrict the  

extent of the constituency to as it existed on the date of publication of  

such  notification,  it  should  have  been  clearly  specified.  There  has  

been no subsequent amendment to the notifications and there has been  

no fresh delimitation carried out. The notification is still in force in its  

original form. Therefore the natural corollary to be derived is that the  

territory  of  397  Meerut  Assembly  constituency  (now  381  Meerut  

Assembly  constituency)  shall  comprise  all  that  area  falling  in  the  

different wards mentioned in the Delimitation Order as it exists on the  

date of making of the nomination for the election in question. In this  

regard we agree with the finding of the High Court.  Therefore the  

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contention of the appellant concerning Article 325 of the Constitution  

is nullified in light of the power vested in the State Government under  

the U.P Municipalities Act.

28) Material facts and cause of action:  

An election petition has to disclose all the material facts on which the  

election petitioner relies to establish the existence of a cause of action.  

Material  facts  essentially  refer  to  all  the  relevant  facts  which  a  

appellant relies upon during the course of the trial. In the absence of  

material facts and insufficient cause of action, the election petition is  

liable to be dismissed. There is a catena of cases decided by this court  

which  have  discussed  as  to  what  constitutes  material  facts  for  the  

purpose of Section 100 of Representation of Peoples Act, 1951. In the  

case  of  Samant  v.  George Fernandez (AIR 1969 SC 1201),  it  was  

stated:-

“The  word 'material'  shows that  the  facts  necessary to  formulate  a  complete  cause  of  action  must  be  stated.  Omission of a single material fact leads to an incomplete  cause of action and the statement of claim becomes bad.  The function of particulars is to present as full a picture  of the cause of action with such further information in  detail as to make the opposite party understand the case  he will  have to meet.  There may be some overlapping  between  material  facts  and  particulars  but  the  two are  quite distinct. Thus the material facts will mention that a  statement of fact (which must be set out) was made and it  

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must be alleged that it refers to the character and conduct  of  the  candidate  that  it  is  false  or  which  the  returned  candidate believes to be false or does not believe to be  true and that it is calculated to prejudice the chances of  the appellant. In the particulars the name of the person  making the statement, with the date, time and place will  be  mentioned.  The  material  facts  thus  will  show  the  ground  of  corrupt  practice  and  the  complete  cause  of  action  and  the  particulars  will  give  the  necessary  information  to  present  a  full  picture  of  the  cause  of  action. In stating the material facts it will not do merely  to  quote  the  words  of  the  section  because  then  the  efficacy of the words 'material facts' will be lost. The fact  which constitutes the corrupt practice must be stated and  the fact must be correlated to one of the heads of corrupt  practice.  Just  as  a  plaint  without  disclosing  a  proper  cause of action cannot be said to be a good plaint, so also  an election petition without the material facts relating to a  corrupt practice is no election petition at all. A petition  which merely cites the sections cannot be said to disclose  a cause of action where the allegation is the making of a  false statement.”

29) In the case of Virender Nath Goutam v. Satpal Singh and ors. [(2007)  

SCC 617], this court explained:-

“18. All material facts, therefore, in accordance with the  provisions of the Act, have to be set out in the election  petition. If the material facts are not stated in a petition, it  is liable to be dismissed on that ground as the case would  be covered by Clause (a) of Sub-section (1) of Section 83  of the Act read with Clause (a) of Rule 11 of Order VII  of the Code. The expression 'material facts'  has neither  been defined in the Act nor in the Code. According to the  dictionary  meaning,  'material'  means  'fundamental',  'vital',  'basic',  'cardinal',  'central',  'crucial',  'decisive',  'essential',  'pivotal',  indispensable',  'elementary'  or  'primary'.  [Burton's  Legal  Thesaurus,  (Third  edn.);  

25

p.349]. The phrase 'material facts', therefore, may be said  to be those facts upon which a party relies for his claim  or defence. In other words, 'material facts' are facts upon  which the  plaintiff's  cause  of  action or  the  defendant's  defence  depends.  What  particulars  could be said to  be  'material facts' would depend upon the facts of each case  and no rule of universal application can be laid down. It  is,  however,  absolutely  essential  that  all  basic  and  primary facts which must be proved at the trial by the  party to establish the existence of a cause of action or  defence  are  material  facts  and  must  be  stated  in  the  pleading by the party.”

30)  The court further went on to explain the difference between ‘material  

facts’  as  envisaged  in  Section  83  (1)  (a)  of  the  Representation  of  

Peoples Act, 1951 and ‘full particulars’ as envisaged in Section 83 (1)  

(b) of the Act dealing with allegations of corrupt practices employed  

during an election.

“21.  A  distinction  between  'material  facts'  and  'particulars', however, must not be overlooked. 'Material  facts' are primary or basic facts which must be pleaded  by the plaintiff or by the defendant in support of the case  set  up  by  him  either  to  prove  his  cause  of  action  or  defence.  'Particulars',  on  the  other  hand,  are  details  in  support  of  material  facts  pleaded  by  the  party.  They  amplify,  refine  and  embellish  material  facts  by  giving  distinctive touch to the basic contours of a picture already  drawn  so  as  to  make  it  full,  more  clear  and  more  informative. 'Particulars' thus ensure conduct of fair trial  and would not take the opposite party by surprise.”

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31) In the case of  Mahadeorao Sukaji Shivankar v. Ramaratan Bapu and  

Ors. [(2004) 7 SCC 181], it was held :

“(6) Now, it is no doubt true that all material facts have  to be set out in an election petition. If material facts are  not stated in a plaint or a petition, the same is liable to be  dismissed  on  that  ground  alone  as  the  case  would  be  covered by Clause  (a)  of Rule  11 of  Order  VII  of  the  Code.  The  question,  however,  is  as  to  whether  the  appellant  had  set  out  material  facts  in  the  election  petition. The expression "material facts" has neither been  defined in the Act nor in the Code. It may be stated that  the  material  facts  are  those  facts  upon  which  a  party  relies for his claim or defence. In other words, material  facts are facts upon which the plaintiff's cause of action  or defendant's  defence depends.  What particulars could  be said to be material facts would depend upon the facts  of each case and no rule of universal application can be  laid  down.  It  is,  however,  absolutely  essential  that  all  basic and primary facts which must be proved at the trial  by the party to establish existence of cause of action or  defence  are  material  facts  and  must  be  stated  in  the  pleading of the party.

(7) But, it is equally well settled that there is distinction  between  “material  facts”  and  “particulars”.   Material  facts are primary or basic facts which must be pleaded by  the petitioner in support of the case set up by him either  to prove his cause of action or defence.   Particulars, on  the  other  hand,  are  details  in  support  of  material  facts  pleaded by the party. They amplify, refine and embellish  material  facts  by  giving  finishing  touch  to  the  basic  contours of a picture already drawn so as to make it full,  more  clear  and  more  informative.   Particulars  ensure  conduct of fair trial and would not take the opposite party  by surprise.”

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32) In the case of Hari Shankar Jain v. Sonia Gandhi (AIR 2001 SC 3689)  

it was held:-

“Material facts required to be stated are those facts which  can be considered as materials supporting the allegations  made. In other words, they must be such facts as would  afford a basis for the allegations made in the petition and  would constitute the cause of action as understood in the  Code of Civil Procedure, 1908. The expression 'cause of  action'  has been compendiously defined to mean every  fact  which  it  would  be  necessary  for  the  plaintiff  to  prove,  if  traversed,  in order  to support  his right  to the  judgment of the Court. Omission of a single material fact  leads to an incomplete cause of action and the statement  of  claim becomes bad.  The function of  the party  is  to  present as full a picture of the cause of action with such  further information in detail as to make the opposite party  understand the case he will have to meet.”  

33) In the case of V.S Achutanandan v. P.J Francis [(1999) 2 SCR 99], it  

was held that  failure to plead material  facts is fatal to the election  

petition and no amendment of the pleadings is permissible to introduce  

such material facts after the time limit prescribed for filing the election  

petition.

34) In the case of Azhar Hussain v. Rajiv Gandhi (AIR 1986 SC 1253), it  

was stated:-

“In  substance  the  argument  is  that  the  Court  must  proceed with the trial, record the evidence, and only after  the  trial  of  the  election  petition  is  concluded  that  the  

28

powers  under  the  Code of  Civil  Procedure  for  dealing  appropriately with the defective petition which does not  disclose  cause  of  action  should  be  exercised.  With  respect to the learned Counsel, it is an argument which it  is  difficult  to  comprehend.  The  whole  purpose  of  conferment of such powers is to ensure that a litigation  which is meaningless and bound to prove abortive should  not  be  permitted  to  occupy  the  time  of  the  court  and  exercise  the  mind  of  the  respondent.  The  sword  of  Damocles  need  not  be  kept  hanging  over  his  head  unnecessarily without point or purpose.... The contention  that even if the election petition is liable to be dismissed  ultimately it should be so dismissed only after recording  evidence  is  a  thoroughly  misconceived  and  untenable  argument.”

35)Therefore,  it  is  a  settled  legal  position  that  an  election  petition  must  

clearly  and  unambiguously  set  out  all  the  material  facts  which  the  

appellant is to rely upon during the trial, and it must reveal a clear and  

complete  picture  of  the  circumstances  and  should  disclose  a  definite  

cause of action.  In the absence of the above, an election petition can be  

summarily  dismissed.  To  see  whether  material  facts  have  been  duly  

disclosed or  whether  a  cause  of  action arises,  we need to  look at  the  

averment and pleadings taken up by the party.

29

36)Coming to the present case, the relevant portion of the specific averment  

made  by  the  appellant  in  Para  27  of  the  Election  Petition  reads  as  

follows:-

“That the appellant thereupon made a representation to  the  Chief  Election  Officer,  Election  Commission  of  India, New Delhi, on 05.05.2007 wherein he prayed that  the name of voters included in the electoral rolls of the  aforesaid  21  localities/colonies/mohallas  be  excluded  from 381 Meerut Assembly constituency.”

37)The essential averment of the appellant is with respect to inclusion of the  

voters from the above mentioned colonies in the electoral  roll  of  381  

Meerut constituency and the acceptance of their votes, which materially  

affected the results of the elections. The appellant places reliance upon  

Section 100 (1) (d) (iii) and (iv) of the Representation of Peoples Act,  

1951 to plead for the declaration of the election to be void. The relevant  

provisions state:-

“(d) that the result of the election, insofar as it concerns a  returned candidate, has been materially affected …. (iii) by the improper reception, refusal or rejection of any  vote or the reception of any vote which is void, or (iv)  by any non-compliance  with  the  provisions of  the  Constitution or of this Act or any rules or orders made  under this Act.”

30

38)The averments of the appellants in the election petition do not disclose  

any definite cause of action. The appellant pleads that the names of the  

21 localities have been wrongfully included in the electoral roll of the  

relevant  constituency.  But  there  has  been  no  order  by  the  Election  

Commission for the alteration of the electoral rolls of the constituency.  

Furthermore the Election Commission does not have the power to amend  

the electoral roll as there has been no fresh delimitation carried out by the  

Delimitation Act. The electoral rolls have been prepared keeping in view  

the 381 Meerut constituency, which consists of the Meerut municipality  

ward. This is as per the notification of the Delimitation Commission. As  

stated  above,  delimitation  is  to  be  carried  out  by  the  Delimitation  

Commission  and in  furtherance  of  the  delimitation  carried  out  by  the  

Commission, the Election Commission shall proceed to prepare electoral  

rolls for the constituency. Therefore, there has been no default on the part  

of any of the authorities, so as to render any votes void. There has been  

no  violation  of  any  of  the  provisions  of  the  Act  or  the  rules  framed  

thereunder. The appellant primarily relies on the communication issued  

by the Election Commission of India dated 24.3.2007. But as discussed  

above, the same cannot be construed as any direction on the part of the  

Commission. The averments also do not disclose any material facts. As  

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observed by the High Court, the main concern of the appellant in effect is  

the addition of the 21 colonies into the Meerut constituency and not in  

relation to addition or deletion of names in the electoral roll. But yet there  

has been no specific pleading in this regard in the election petition. The  

pleading should have been with respect to the said inclusion of the 21  

colonies  into  the  Meerut  municipality  constituency  which  was  later  

incorporated  into  the  381  Meerut  Municipality  constituency.  In  the  

absence of such pleadings, it can safely be said that the election petition  

does not disclose any material facts and, therefore, High Court was right  

in summarily dismissing the election petition.  

39)Before parting with the case, we will now refer to the decision on which  

reliance is placed by learned counsel for appellant.  

40)The  facts  in  Shankar  Babaji  Sawant  v.  Sakharam  Vithoba  Salunkhe  

[(1965) 2 SCR 403] were that the Presiding Officer for the polling station  

at Village Turveh Khurd, improperly prevented 19 voters from inserting  

their ballot papers into the ballot box. On the polling day, those 19 voters  

wanted to vote in favour of the petititioner. The contention raised was  

that an improper refusal of votes contemplated by section 100(1)(d)(iii)  

must mean an improper refusal of valid votes. However the court came to  

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the conclusion that the said votes were not valid votes as they were never  

inserted into the ballot box. The facts and the circumstances of the case  

are  clearly  distinguishable  from  the  present  case.  The  present  case  

involves  acceptance  of  alleged  improper  votes  from people  of  the  21  

localities  in  question,  which has  according to  the  appellant  materially  

affected the result of the election. Therefore this case does not assist the  

appellant in any manner.  

41)In Baidyanath Panjiar v. Sitanath Mahato [(1969) 2 SCC 447], the issue  

which  arose  before  this  court  was,  whether  the  electoral  registration  

officer  could amend the electoral  rolls  after  the last  date for filing of  

nominations was over. The provision in question was Section 23 (3) of  

the Representation of Peoples Act, 1950, which specifically barred any  

alteration in the electoral roll after the date of filing of  nomination was  

over.  The court  reiterated the  principle  laid down in the provision by  

observing that:-

“It gives a mandate to the electoral registration officers  not  to  amend,  transpose  or  delete  any  entry  in  the  electoral  roll  of  a  constituency  after  the  last  date  for  making nominations for election in that constituency and  before the completion of that  election.  If there was no  such  provision,  there  would  have  been  room  for  considerable  manipulations,  particularly  when there are  only limited number of electors in a constituency. But for  that  provision,  it  would  have  been  possible  for  the  

33

concerned authorities to so manipulate the electoral rolls  as to advance the prospects of a particular candidate. This  would be more so if either all or a section of the electors  are persons nominated to local authorities.”

The court finally came to the conclusion that it is clear that the entries  

in an electoral roll of a constituency, as they stood on the last date for  

making the nominations for an election in that constituency should be  

considered as final for the purpose of that election. This principle was  

reiterated by this court in the case of Kabul Singh v. Kundan Singh  

and ors. [(1969) 2 SCC 452], where the 1st respondent challenged the  

result of the election by way of an election petition and one of the  

grounds was that the vote of one 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.  The  court  

rendered the vote of Hari Singh to be void as it was in contravention  

to Section 23 (3)  of  the  Representation of  Peoples  Act,  1950.  The  

court held:-

“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  (Section 19), disqualifications which disentitle a person  from being registered as a voter (Section 16), revision of  the  rolls  (Section  21),  correction  of  entries  in  the  electoral rolls (Section 22), inclusion of the names in the  electoral rolls (Section 23), appeals against orders passed  

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by the concerned authorities  under Sections 22 and 23  (Section  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. 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.”

42)In the case of Rampakavi Rayappa Belagali v. B.D Jatti and ors. [(1970)  

3  SCC  147],  the  main  issue  raised  by  the  petitioner  was  that  that  

respondent No. 1 had ceased to be a person ordinarily resident within the  

constituency of Jamkhandi during the period relevant to the 1967 General  

Elections. This court went into the definition of an elector under Section  

2 (1)(e)  of the Representation of Peoples Act,  1951 and held that  the  

conditions  about  being  ordinarily  resident  in  a  constituency  for  the  

purpose of registration are meant for that purpose alone and have nothing  

to do with the disqualifications for registration which are prescribed by  

Section 16 of the Act of 1950 which alone are relevant to the definition  

of an "elector" as given in Section 2(1)(e) of the Act. In this regard, this  

court observed:-

“The entire scheme of the Act of 1950 and the amplitude  of  its  provisions  show  that  the  entries  made  in  an  Electoral Roll of a constituency can only be challenged in  accordance with the machinery provided by it and not in  any other manner or before any other forum unless some  

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question of violation of the provisions of the Constitution  is involved.”

43) The above issue was also a question in the form of a contention before a  

Constitution Bench of this court in the case of  Hari Prasad Mulshanker  

Trivedi  v. V.B Raju and ors.  [(1974) 3 SCC 415],  in as much as the  

election of the respondents were to be declared void on the ground 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  electoral  roll  of  the  respective  

constituency  in  Gujarat.  Reliance  was  placed  on  Section  19  of  the  

Representation of Peoples Act, 1950 which reads :-

“Subject  to  the  foregoing  provisions  of  this  Part,  every  

person who-

(a) is not less than eighteen 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.”

The Constitution Bench observed thus:-

“Under Section 100(1)(d)(iv) of the 1951 Act the result  of  the  election  must  have  been  materially  affected  by  noncompliance with the provisions of the Constitution or  of that Act or of the rules, orders made under that Act in  

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order that High Court may declare an election to be void.  Non-compliance with the provisions of Section 19 of the  1950  Act  cannot  furnish  a  ground  for  declaring  an  election void under that clause.”  

In this regard the court observed that there was no allegation that they  

were disqualified under Section 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  from  any  of  the  

disqualifications mentioned in Section 16 of the 1950 Act, they were  

electors within the definition of the term in Section 2(1)(e) of the 1951  

Act. Therefore, the respondents qualified to be chosen as candidates  

under Section 3 of the 1951 Act.  

44)In  the  case  of  Mohinder  Singh  Gill  and  anr.  v.  The  Chief  Election  

Commissioner, New Delhi and ors. [(1978) 1 SCC 405], a Constitution  

Bench discussed the scope of Article 324 of the Constitution of India and  

Section 100 (1)(d)(iv) of the Representation of Peoples Act, 1951. The  

Court observed:-

“Article  324(1) vests  in  the  Election  Commission  the  superintendence, direction and control of the preparation  of the electoral rolls for, and the conduct of, all elections  to Parliament and to the Legislature of every State and of  elections  to  the  offices  of  the  President  and  Vice-

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under  any  provision  of  the  Act,  there  is  no  reason  why  Section  

100(1)(d)(iv) should not be attracted to it. If exercise of a power is  

competent either under the provisions of the Constitution or under any  

other provision of law, any infirmity in the exercise of that power is,  

in  truth  and  substance,  on  account  of  non-compliance  with  the  

provisions  of  law,  since  law demands  of  exercise  of  power  by  its  

repository;  as  in  a  faithful  trust,  in  proper  regular,  fair  reasonal  

manner.”  Therefore  according  to  this  court  Article  329  (b)  of  the  

Constitution  of  India  rules  out  the  maintainability  of  the  writ  

application  with  respect  to  challenge  of  an  election.  The  remedy  

available to an aggrieved person is therefore by way of an election  

petition filed in the prescribed manner.  

45)In the case of Lakshmi Chandra Sen and ors. v. A.K.M. Hassan Uzzaman  

and ors. [(1985) 4 SCC 689], this court while discussing the scope of  

Section 23 (3) of the Representation of Peoples Act, 1950, has stated :

“Section 23(3) of the Act of 1950 also points in the same  direction.  Under  that  provision,  no  amendment,  transposition or deletion of an entry can be made under  Section 22 and no direction for the inclusion of a name in  the electoral roll of a constituency can be given, after the  last  date  for  making nomination for  an election in  the  particular constituency. The election has to be held on the  basis of the electoral roll which is in force on the last date  for making nominations. If that were not so, the easiest  

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expedient which could be resorted to for the purpose of  postponing an election to the legislature would be to file  complaints and objections, omnibus or otherwise, which  would take days and months to decide. It is not suggested  that  claims and objections  filed in the prescribed form  should not be decided promptly and in accordance with  law.  But,  the  important  point  which  must  be  borne  in  mind is that whether or not a revision of an electoral roll  is  undertaken  and,  if  undertaken,  whether  or  not  it  is  completed, the electoral roll for the time being in force  must hold the field. Elections cannot be postponed for the  reason  that  certain  claims  and  objections  have  still  remained  to  be  disposed  of.  Then,  claimants  and  objectors could even evade the acceptance of notices and  thereby postpone indefinitely the decision thereon. The  holding  of  elections  to  the  legislatures,  which  is  a  constitutional mandate, cannot be made to depend upon  the volition of interested parties.”

The court further observed that “as far as electoral rolls are concerned,  

there never comes a moment where an electoral roll is not in force.”  

This observation was made after drawing an analogy from Section 21  

(3) of the Act of 1950 which confers upon the Election Commission  

the power to direct a special revision of the electoral roll. The proviso  

to that Sub-section also says that until the completion of the special  

revision so directed, the electoral roll for the time being in force shall  

continue to be in force.

46)In the case of Indrajit  Baruah and others v. Election Commissioner of  

India  and  others,  (AIR  1986  SC  103),  one  of  the  contentions  raised  

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whereby the petitioners sought to escape from the ban of Article 329(b)  

by  contending  that  they  are  challenging  the  impugned  elections  as  a  

whole and not any individual election and that the ban of Article 329(b),  

therefore, does not stand in the way of the writ petitions filed by them  

challenging the impugned elections. The principal ground on which the  

validity  of the elections has been challenged is  that  the electoral  rolls  

were not revised before the elections in contravention of the provisions of  

Section 21, Sub-section (2)(a) of the Representation of the People Act,  

1950, and the elections were held on the basis of the electoral rolls of  

1979.  The Constitution Bench of this court while relying on the well  

settled law on the question involved held thus:-

“In the first place, Article 329(b) of the Constitution bars  any  challenge  to  the  impugned  elections  by  a  writ  petition under Article 226 as also on the ground that the  electoral  rolls  on  the  basis  of  which  the  impugned  elections were held were invalid. The petitioners sought  to escape from the ban of Article 329(b) by contending  that  they  are  challenging  the  impugned  elections  as  a  whole and not any individual election and that the ban of  Article 329(b), therefore, does not stand in the way of the  writ  petitions  filed  by  them challenging  the  impugned  elections, But we do not think this escape route is open to  the  petitioner.  There  is  in  the  Representation  of  the  People  Act,  1951,  no concept  of  elections  as  a  whole.  What  that  Act  contemplates  is  election  from  each  constituency and it is that election which is liable to be.  challenged by filing an election petition. It may be that  there is a common ground which may vitiate the elections  from all the constituencies, but even so it-is the election  

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from  each  constituency  which  has  to  be  challenged  though the ground of challenge may be identical. Even  where  in  form  the  challenge  is  to  the  elections  as  a  whole,  in  effect  and  substance  what  is  challenged  is  election from each constituency, and Article 329(b) must,  therefore, be held to be attracted. We are of the view that  once the final electoral rolls are published and elections  are held on the basis of such electoral rolls, it is not open  to anyone to challenge the election from any constituency  or  constituencies  on the  ground that  the  electoral  rolls  were  defective.  That  is  not  a  ground  available  for  challenging  an  election  under  Section  100  of  Representation of People Act, 1951. The finality of the  electoral  rolls  cannot  be  assailed  in  proceeding  challenging the validity of an election held on the basis  of such electoral roll vide Kabul Singh v. Kundan Singh  : [1970]1SCR845 . Article 329(b) in our opinion clearly  bars any writ petition challenging the impugned election  on the ground that the electoral rolls of 1979 on the basis  of which the impugned elections were held were invalid.”

47)In our considered view, none of the decision on which reliance is placed  

by learned senior counsel is anyway nearer to the issue that is debated in  

this appeal.  We hasten to add, that the learned senior counsel was very  

fair to the court by bringing to the notice of this court the observations  

made by this court in the case of Shyamadeo Parsad Singh vs. Nawal  

Kishore Yadav, [(2000) 8 SCC 46], which answers all the legal issues  

raised by the appellant in this appeal.   

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48)For  the  reasons  mentioned  above,  this  appeal  fails  and  the  same  is  

dismissed and since no representation was there for the respondent, we  

refrain from imposing costs.  

  ……………………………J.

                                                                        [ D.K. JAIN ]

  ……………………………J.

                                                                        [ H.L. DATTU ] New Delhi, December 8, 2009.

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