15 October 1970
Supreme Court


Case number: Appeal (civil) 2394 of 1968






DATE OF JUDGMENT: 15/10/1970


CITATION:  1971 AIR 1348            1971 SCR  (2) 611  CITATOR INFO :  F          1973 SC 717  (11,14)  F          1973 SC2602  (20,24,28)  D          1975 SC 290  (31)  RF         1977 SC1992  (17)  R          1985 SC1233  (25)

ACT: Representation  of  the People Act  VTEV-Section  100(1)(d)- Election petition-Trial of-Whether there is jurisdiction  of question  validity  of  entry of  name  in  Electoral  Roll- Representation  of  the  People  Act  1950  and  under  made thereunder-If  only provsions under which such validity  may be questioned.

HEADNOTE: By  an election petition two electors of  the  constituency, the  appellants,  challenged  the  election  of  the   first respondent to, the Mysore Legislative Assembly in 1967  from the Jamkhandi constituency.  It was alleged inter alia  that the  first ’respondent had ceased to be a person  ordinarily resident within the constituency during the period  relevant to the 1967 General Elections, and the validity of the entry of  his  name on the Electoral Roll was questioned;  it  was claimed  that  he was not therefore qualified to  stand  for election from the constituency.  The petition also contained allegations of corrupt practices including misuse by certain Police  Officers  of their position to prevent  voters  from voting freely, and malpractices by the Presiding Officer  at the time of polling, etc. After  framing an issue on the question and taking the  view that the Court had jurisdiction to determine the validity of the  inclusion of the first respondent’s name as an  elector on   the  Electoral  Roll,  the  trial  judge  held   on   a consideration  of  the evidence, that  the  petitioners  had failed  to prove he first respondent was not an elector  and was   not   qualified  to  stand  for  election   from   the constituency.  The High Court also rejected the  allegations of corrupt practices and dismissed the petition On appeal to this Court, HELD  :  (i) Under section 30 of the Representation  of  the People Act, 1950, no civil court shall have jurisdiction  to



entertain or adjudicate upon any question whether any person is or is not entitled for registration in an Electoral  Roll for  a constituency.  There are elaborate rides  which  have be-en  promulgated  for  preparation  and  revision  of  the Electoral   Rolls,  namely,  Electors’  Rules   1960.    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 s. 16 of the  Act  of 1950,  which  alone  are relevant to the  definition  of  an "elector"  as given in S. 2(1)(e) of the Act of  1951.   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 question of violation  of the provisions of the Constitution is involved.  The present case  did not also involve any violation or infringement  of Article  173  or any other provision  of  the  Constitution. [,615 H] The  question  whether  respondent  No.  1  was   ordinarily resident  in  Jamkhandi  constituency  during  the  material period and was entitled to 612 be  registered in the Electoral Roll could not therefore  be the subject matter of enquiry except in accordance with  the provisions of the Act of 1950. Under s. 100(1) (d) an election can be declared void only if the  result  of  the election, in so far as  it  concerns  a returned candidate, has been materially affected by any non- compliance with the provisions of the Constitution or of the Act  of  1951  or of any rules or  orders  made  thereunder. Nothing  could be clearer than the ambit of this  provision. It does not entitle the court in an election petition to set aside any election on the ground of non-compliance with  the provisions of the Act of 1950 or of any rules made hereunder with the exception of s. 16. [617 E] Durga  Shankar  Mehta  v. Thakur Raghurai  Singh  &  Others, [1955]  1  S.C.R. 267; K. Sriramulu v. K.  Deviah  (1965)  1 Mys..  L.  J. 676; Roop Lal Mehta v. Dhan Singh  and  Others (1967) P.L.R. 618; referred to. On  the  evidence, no reasons were shown for this  court  to differ  from  the  findings  of  the  Trial  Judge  on   the allegations of corrupt practices. Meghraj  Patodis v. R. K. Birla & Others, Civil  Appeal  No. 1094/69 dated 10-9-1970; referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2394 of 1968. Appeal  under  s. 116A of the Representation of  the  People Act,  1951 from the judgment ’and order dated July 24,  1968 of the Mysore High Court in Election Petition No. 9 of 1967. B.   S.,  Patil,  Vineet Kumar and Shyamala Pappu,  for  the appellant. A. V. Albal and M. Veerappa, for respondent No. 1. The Judgment of the Court was delivered by GROVER,  J.-This is an appeal from a judgment of the  Mysore High  Court dismissing an election petition which  had  been filed by two electors challenging the election of respondent No.  1  B. D. Jatti from the Jamkhandi Constituency  at  the General Elections held in 1967. The  last date for filing of nomination papers  was  January 19,  1967.  The polling took place on February 2,  1967  and



the  result  was declared on February 22,  1967.   The  only contesting  candidates were respondent No. 1 and  respondent No. 2 M. M. Shivappa.  Respondent No. 1 secured 24,578 votes whereas  respondent  No. 2 got 21,261 votes.   The  election petition was filed 613 on  April 6, 1967 by I. S. Ghattarki and P. R. Belagali  who were  electors in the Jamkhandi Constituency, Each of  them had  acted  as  an  election  agent  of  respondent  No.  2. Petitioner  No.  1  Ghattarki was his  election  agent  from February  10,  1967 till the last date of the  election  and petitioner  No. 2 Belagali acted as an election  agent  from January  19,  1967 to February 4, 1967.  The  trial  of  the petition  commenced on December 11, 1967 and  after  certain witnesses  had been examined on February 1, 1967  petitioner No. 1, Ghattarki, made an application praying for permission to   withdraw   from  the  petition  "for   all   purposes". Petitioner  No. 2 objected to his withdrawal.   The  learned judge  dismissed the application of petitioner No. 1 on  the ground  that s. 110(1) of the Representation of  the  People Act,  1951,  hereinafter called the "Act",  dil  not  permit withdrawal by one petitioner without the consent of his  co- petitioner.   It  has, however, been noted  by  the  learned judge that both the petitioners continued to be  represented by one counsel Shri B. S. Patil. It may be mentioned at this stage that the election petition is a very long document and that the evidence which has been produced  by the parties is also voluminuous.  The  judgment of  the  learned  judge consists of 227  printed  pages.   A number  of issues were framed but the controversy before  us has been confined only to certain points. The first question which falls for consideration arises  out of  issue  No.  1 which consists of three  clauses  and  was framed in the following terms                "1 (a) Do the petitioners prove that the  1st               respondent  was  not  an elector  at  all  and               therefore not qualified to stand for  election               ?               (b)   Are   the  petitioners  precluded   from               questioning  the validity of the entry of  the               name of the 1 st respondent as elector in  the               Electoral    Roll   relating   to    Jamkhandi               Constituency ?               (c)   Has  this  Court no jurisdiction  to  go               into the said question of validity ?" It  was held by the leaned trial judge that the  petitioners (in   the  election  petition)  were  not   precluded   from questioning  the  validity  of  the entry  of  the  name  of respondent  No.  1  as  an elector  in  the  Electoral  Roll relating to Jamkhandi Constituency and that the c court  had the jurisdiction to go into that question.  It was, however, found   on  a  consideration  of  the  evidence   that   the petitioner&  had failed to prove that respondent No.  I  was not  an elector and was not qualified to stand for  election to a seat in the Mysore Legislative assembly, from Jamkhandi constituency. 12-LA36SupCI/71 614 If  the  view  of the trial judge that  the  court  had  the jurisdiction in an election petition to go into the question of  the  validity  of  an entry  in  an  Electoral  Roll  is erroneous and if the court was precluded from deciding  this matter  it will be altogether unnecessary  to  consider  the evidence led for the purpose of clause (a) of issue No. 1. The  principal allegations of the petitioners on  issue  No.



1(a)  were that respondent No. I had ceased to be  a  person ordinarily  resident  within the constituency  of  Jamkhandi during  the period relevant to the 1967  General  Elections. It  was  further asserted that by long stay in the  city  of Bangalore the name of respondent No.  I had been entered  in the  Electoral Roll relating to the municipal area  of  that city  and that respondent No. 1 with the object ,of  getting his  name entered in the Roll of Jamkhandi Constituency  had either  got his name deleted from the Bangalore Roll or  had tried  to  get  it changed from that Roll  to  the  Roll  of Jamkhandi ,Constituency. In  order  to decided the jurisdiction and  powers  of,  the court  trying an election petition under the  provisions  of the Act to determine the validity or legality of an entry in an  Electoral  Roll we shall have to look  at  the  relevant provisions of the Act.  The Representation of the People Act 1950,  to be called the "Act of 1950" and the  Constitution. Part  11  of  the  Act deals  with  the  qualifications  and disqualifications  for Membership of Parliament  ,and  State Legislature.  Section 5(c) is as follows :               "A person shall not be qualified to be  chosen               to fill a seat in the legislative assembly  of               a State unless.               (a)............................               (b)............................               (c)   in  the case of any other seat he is  an               elector for any Assembly constituency in  that               State." The  word "elector" is defined by s. 2 (1 ) (e) to  mean  in relation to a constituency 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 Act  of  1950. Chapter  III  of  the  Act  contains  disqualifications  for Membership of Parliament and State Legislatures.   According to  s.  7(b)  "disqualified" means  disqualified  for  being chosen  as  and  for  being a  Member  of  either  House  of Parliament  or of the Legislative Assembly etc.  Sections  8 to  11 give the disqualifications on conviction for  certain offences,  for  commission of corrupt practices and  other matters which need not be noticed.  The position under 615 the Act,. therefore, is that in order to stand for  election to  a  legislative assembly of a State a person must  be  an elector  for any assembly constituency in that State and  he must  not  be  subject  to  any  of  the   disqualifications mentioned   in   s.   16  of  the  Act  of   1950   or   the disqualifications given in Chapter III of the Act.  The  Act of 1950 was meant to provide for the allocation of seats and the  delimitation  of  constituencies  for  the  purpose  of elections,  to the House of the People and the  legislatures of  States, the qualifications of voters at such  elections, the  preparation  of Electoral Rolls..........  and  matters connected therewith. Part III thereof contains provisions for Electoral Rolls for assembly  constituencies.   According  to s.  15  for  every constituency there shall be an Electoral Roll which shall be prepared  in  accordance with the provisions of the  Act  of 1950 under the superintendence, direction and control of the Election Commission.  Section 1 6 is in these terms :-               S.    16. "Disqualifications for  registration               in an electoral roll.-               (1)   A  person  shall  be  disqualified   for               registration in an electoral roll if he               (a)   is not a citizen of India; or



             (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........................... Section  19  gives  the conditions of  registration  in  the Electoral  Roll.  It provides that every person who  is  not less  than  21 years of age on the qualifying  date  and  is ordinarily  resident in a constituency shall be entitled  to be  registered in the Electoral Roll for that  constituency. Section 20 deals with the meaning of "ordinarily  resident". The  preparation  and revision of Electoral Roll has  to  be made  in  accordance  with  s.  21  and  the  correction  of entries’is  provided  by  s.  22.   Section  24  contains  a provision  for  an appeal which can be filed  to  the  Chief Electoral   Officer   from  any  order  of   the   Electoral Registration  Officer under s. 22 or s. 23.  Under s. 30  no civil court shall have jurisdiction to entertain or 616 adjudicate upon any question whether any person is or is not entitled  for  registration  in  an  Electoral  Roll  for  a constituency.   There  are elaborate rules which  have  been promulgated  for preparation and revision of  the  Electoral Rolls,  namely, Electors’ Rules 1960.  It may be noted  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 s.  16  of the Act of 1950 which alone are relevant  to  the definition  of an "elector" as given in s. 2 (1) (e) of  the Act.  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  question  of violation of the provisions of the Constitution is involved. Article  173 of the Constitution relates  to  qualifications for membership of the State legislature.  It reads :- Art.  173 "A person shall not be qualified to be  chosen  to fill a seat in the Legislature of a State unless he-               (a)   is  a  citizen of India, and  makes  and               subscribes  before some person  authorised  in               that behalf by the Election Commission an oath               or  affirmation according to the form set  out               for the purpose in the Third Schedule;               (b)   is,  in  the  case  of  a  seat  in  the               Legislative  Assembly, not less  than  twenty-               five  years of age and, in the case of a  seat               in  the  Legislative Council,  not  less  than               thirty years of age; and               (c)   possesses  such other qualifications  as               may  be prescribed in that behalf by or  under               any law made by Parliament." The  qualifications,  as  mentioned  previously,  have  been prescribed  by s. 5 of the Act.  Condition (b) in s.  19  of the   Act  of  1950  of  being  ordinarily  resident  in   a constituency finds no place in any of the provisions of  the Act  or  in Art. 173 of the Constitution.  The  decision  of this Court in Durga Shankar Mehta v. Thakur Raghurai Singh &



Others(1)  involved  non-compliance with the  provisions  of clause  (b) of Art. 173 and in case of a candid-ate who  was constitutionally incapable of being returned as a member it was  held  that  the Election  Tribunal  could  declare  his election to be void by applying sub-s. (2) (c) of s. 1 00 of the Act.  The present case is clearly not of that kind  and. no violation or in- (1)  [1955] 1 S.C.R. 267. 6 17 fringement of any provision of Art. 173 has been or could be established. The  other provisions relating to election are contained  in Part  XV  of the Constitution.  Article 324 deals  with  the superintendence,  direction and control of  elections  which are vested in the Election Commission.  Article 325 declares that  no  person shall be ineligible for  inclusion  in  an, Electoral Roll on account only of religion, race, caste, sex or any of them.  Article 326 says that the elections to  the House of the People and the Legislative Assemblies of States shall be on the basis of adult franchise.  Article 327 gives power  to the Parliament to make provisions with respect  to elections   to   Legislatures.    Article   329   bars   the interference  of courts in electoral matters.  By virtue  of that Article no election shall be called in question  except by an election petition.  It is abundantly clear that in the present  case  the  question whether respondent  No.  1 was ordinarily  resident in Jamkhandi constituency  during  the material  period  and was entitled to be registered  in  the Electoral  Roll could not be the subject matter  of  enquiry except in accordance with the provisions of the Act of 1950. The grounds on which the election can be declared to be void under the Act are set out in s. 100 of the Act.  Clause  (d) is  "that  the  result  of the election, in  so  far  as  it concerns a returned candidate, has been materially affected-(i)............... (ii)............ (iii)...............(iv) by any non-compliance with the pro- visions  of the Constitution or of this Act or of any  rules or  orders  made under this Act." Nothing could  be  clearer than  the ambit of this provision.  It does not entitle  the court  in an election petition to set aside any election  on the ground of non-compliance with the provisions of the  Act of 1950 or of any rules made thereunder, with the  exception of s. 16. The  learned trial judge does not appear to have  fully  and properly   appreciated   the   correct   ratio   and    true determination  of  the  points  involved  in  Durga  Shanker Mehta’s(1)  case.   The distinction is too obvious  to  bear repetition.   It seems that a Bench decision of  the  Mysore High Court in K. Sriramulu v. K. Deviah(2) was distinguished without  any  justification by the learned  judge.   It  was clearly  laid  therein  that in  an  election  petition  the correctness of the Electoral Roll cannot be gone into.   The decision  of  a Full bench of the Punjab  and  Haryana  High Court in Roop Lal Mehta v. Dhan Singh & Others(1) about  the finality  of the Electoral Roll was, also not  noticed.   In this  view of the matter the evidence relating to issue  No. 1(a) becomes wholly irrelevant and redundant.  The  decision on  that issue in favour of respondent No. 1,  is,  however, affirmed. (3) [1967] P. L. R. 618. 618 [His Lordship next considered the evidence in respect of the allegations of corrupt practice and then proceeded :] In conclusion it may be observed that the impression left by the facts and circumstances of this case on our mind is that



the  authorities  concerned  in the Mysore  State  were  not careful  or discreet enough in posting Hasbi for the  second time  to Jamkhandi in July 1966 when it was known  that  the relations  between  him and respondent No. 2 had  been  very unhappy  in  the  past and by which time it  could  also  be foreseen and appears to be known that there would be another contest  between respondent No. 1 and respondent No.  2  who had  been  fighting elections since  1952.   Similarly  with regard to Kallur it would have been a wise step to  transfer him before the elections from the area in which Jamkhandi is situate  because he had also figured similarly in  the  pre- vious  contest between the two respondents.  Free  and  fair elections are the very foundation of democratic institutions and  just as it is said that justice must not only  be  done but  must also seen to be done; similarly  elections  should not only be fairly and properly held but should also seem to be so conducted as to inspire confidance in the minds of the electors  that everything has been above board and has  been done to ensure free elections.  It will be a sad day in  the history  of our country when the police and  the  Government officers create even an impression that they are interfering for  the  benefit of one or the other  candidate.   This  is particularly  so  if  a candidate is  holding  an  important position  or assignment like respondent No. 1, who,  at  the material time was a Minister in the State. The appeal fails and is dismissed.  In view of all the facts and  circumstances of the case we make no order as to  costs in this Court. R.K.P.S.                                              Appeal dismissed. 619