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PETITIONER: SHYAMDEO PD.  SINGH

       Vs.

RESPONDENT: NAWAL KISHORE YADAV

DATE OF JUDGMENT:       28/08/2000

BENCH: CJI , R.C.  Lahoti & K.G.  Balakrishnan

JUDGMENT:

R.C.  Lahoti, J.

L...I...T.......T.......T.......T.......T.......T.......T..J

   Pursuant  to  a Notification issued by the  Governor  of Bihar  under Section 16 of the Representation of the  People Act,  1951  (hereinafter the 1951 Act, for short),  biennial elections  to  the Bihar Legislative Council from the  Patna Teachers  Constituency were held in April, 1996.  There were four  candidates in the fray including Nawal Kishore  Yadav, the respondent, who defeated his nearest rival candidate Dr. P.N.   Sharma by a margin of 870 votes.  Polling was held on 28.4.1996  whereat  the  respondent secured  3414  votes  as against  2544  votes  secured  by Dr.   P.N.   Sharma.   The respondent was declared elected.

   On  24.4.1996 the appellant, an elector duly enrolled in the  electoral  list of the constituency filed  an  election petition  under  Section  80  of the  1951  Act  calling  in question  the  election of the respondent.  The only  ground alleged  in  support of prayer for avoiding the election  of the respondent was the registration and enrolment of a large number  of  ineligible persons as electors in the  electoral roll  and  consequently improper reception of votes cast  by such  illegal  electors  which had  resulted  in  materially affecting the result of the election insofar as the returned candidate  was concerned.  The bundle of facts  constituting the  cause of action as alleged by the appellant are briefly stated in the succeeding paragraph.

   On  22.10.1986  the  Chief Electoral Officer,  Bihar  in exercise of the powers conferred by Section 27 (3)(b) of the Representation of the People Act, 1950 (hereinafter the 1950 Act,  for short) issued a notification No.1248 publishing  a list of educational institutions of the State which shall be deemed  to be not lower in standard than that of a secondary school.   On  29.9.1995  a notice under Rule  31(3)  of  the Electors Registration Rules, 1960 was published by the Chief Electoral  Officer,  Bihar calling upon all eligible  voters who  wished to get their names entered in the electoral roll to apply in Form 19 on or before 6.11.1995.  All persons who are  citizens  of India and are ordinarily residents of  the constituency  and engaged in teaching work for not less than three  years during the preceding six years calculated  from 1.11.1995  in  an  educational   institution  not  lower  in standard  than that of a secondary school were eligible  for

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enrolment  as electors in the electoral roll.  According  to the  election petitioner the authorities entrusted with  the task  of preparing the electoral roll included the names  of many  a  voters  in the electoral roll who were not  at  all eligible  for being so included as they were teaching in the educational  institutions which were neither permitted to be established  nor  affiliated  nor recognised  by  the  State Government   which  was  mandatorily   required  under   the provisions  of The Bihar Intermediate Education Council Act, 1992.   On 26.12.1995 Dr.  P.N.  Sharma, the then member  of Legislative  Council from Patna Teachers Constituency, filed objections  to the inclusion of the names of such ineligible persons  in  the  electoral roll seeking deleting  of  their names.   In spite of repeated persuasions made by Dr.   P.N. Sharma,  the  authorities  did  not   hear  and  decide  the objections  and  in the meantime the Governor of  Bihar,  as recommended  by  the  Election Commission of  India,  issued notification dated 26.3.1996 fixing the schedule of election programme.   On  or  about 1.3.1996,  objections  were  also preferred  by one Dr.  Ram Padmadeo seeking deletion of  the names  of 1625 ineligible electors from the electoral  roll. On   30.3.1996   the    Assistant   Electoral   Registration Officer-cum-District  Magistrate, Patna refused to  consider the  objection  petition filed by Dr.  Ram Padamdeo  on  the ground  that the objection petition was not preferred in the prescribed  proforma  and further there was not enough  time available  before  the date of filing of  nominations,  i.e. 2.4.1996  to  hear  and  dispose of  objections  calling  in question  the  inclusion  of as many as 1625  names  in  the electoral  roll.   There were other objections filed  by  17 persons  laying  challenge to the inclusion of 384 names  of electors  in the electoral roll which too met with the  same fate on 30.3.1996.  The election petitioner alleged that the election  was  vitiated by the improper reception  of  votes cast  by ineligible persons and by non- compliance with  the provisions  of the Constitution, the 1950 Act and rules  and orders  relevant  to  the election.   Such  allegations,  as abovesaid, formed contents of paragraphs 15 to 42 along with annexures  1 to 20 of the election petition.  The respondent moved  an application before the learned Designated Election Judge  seeking striking out of the said paragraphs 15 to  42 along  with  annexures 1 to 20 of the election petition  and submitting  that  the  commission of any  illegality  and/or irregularity  in  the preparation of the electoral roll  was beyond  the  ambit and scope of Section 100 of the 1951  Act and  therefore the averments made in the said paragraphs  15 to 20 of the election petition along with the said annexures were  liable  to  be  struck  down  as  irrelevant  and  not furnishing  any  cause of action to the appellant.   It  was prayed  that  the  election petition was also liable  to  be summarily dismissed as consequent upon striking out the part of pleadings as above said, nothing survived for being tried and adjudicated upon at the trial of the election petition.

   The plea raised by the respondent has prevailed with the learned  Designated  Election Judge.  He has held  that  the pleadings  contained in paragraphs 15 to 42 of the  Election Petition  read along with the annexures 1 to 20 were  liable to  be  struck  down  under  order 6  Rule  16  of  the  CPC consequent  whereupon  no  cause  of  action  survived   for proceeding  with  the trial of the election  petition  under Section  86  of  the 1951 Act and hence the  same  was  also liable  to be dismissed.  The aggrieved election  petitioner has filed this appeal under Section 116A of the 1951 Act.

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   The sole question arising for decision in this appeal is whether the averments made in the election petition made out@@         JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ a  ground  for  declaring  election to be  void  within  the@@ JJJJJJJJJJJJJJ meaning  of  Section  100  of the 1951  Act  obligating  the learned  Designated Election Judge to proceed with the trial of the Election Petition instead of summarily dismissing the same.

   Sub-section  (1) of Section 100 of the 1951 Act provides as under:- 100.  Grounds for declaring election to be void.- (1)  Subject  to the provisions of sub-section (2)  if  [the High Court] is of opinion -

   (a)  that  on  the  date  of  his  election  a  returned candidate  was  not  qualified, or was disqualified,  to  be chosen  to fill the seat under the Constitution or this  Act [or  the  Government of Union Territories Act, 1963  920  of 19630];  or

   (b)  that  any corrupt practice has been committed by  a returned  candidate  or his election agent or by  any  other person  with  the  consent of a returned  candidate  or  his election agent;  or

   (c)  that  any nomination has been improperly  rejected; or

   (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.

   the  High  Court  shall  declare  the  election  of  the returned candidate to be void.

   It  was  conceded  by  the   learned  counsel  for   the appellant,  as  was  done  by the learned  counsel  for  the election  petitioner before the learned Designated  Election Judge, that the grounds canvassed by the election petitioner for  avoiding the election of the respondent were covered by sub-clauses  (iii) and (iv) of clause (d) of sub-section (1) of  Section  100 of the 1951 Act and it was by reference  to these two sub- clauses alone that the maintainability of the election petition was required to be decided by the Court.

   Shri  P.S.   Mishra, the learned senior counsel for  the appellant submitted that election of a returned candidate is liable  to be set aside if there has been improper reception of  any  vote  or the reception of any vote which  is  void. What  has to be seen is whether a person not entitled to  be enrolled  under the law as an elector has voted and if  that

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be  so  then it will be a case of improper reception of  any vote  or the reception of a void vote and it would not  make any  difference if the inelligible person was enrolled as an elector  in the electoral list.  It was further submitted by Shri Mishra that if a person is not qualified to be enrolled as  a voter or is disqualified from voting and still casts a vote taking advantage of his being enrolled in the electoral list  then the enrolment itself being in non-compliance with the provisions of the Constitution or an enactment, the case would  be  covered  by  sub- clause(iv)  of  clause  (d)  of Sub-section  (1)  of Section 100 of 1951 Act.  On a  further proof of the fact that the result of the election insofar as it  concerns the returned candidate was materially affected, the  election would be liable to be set aside.  To test  the validity  of the plea so put- forth and forcefully canvassed we  may  proceed to notice the relevant  constitutional  and statutory provisions.

   Article  326  of  the  Constitution is  founded  on  the doctrine  of adult suffrage.  It provides that every  person who  is a citizen of India and who is not less than 18 years of  age  on such date as may be fixed in that behalf  by  or under any law made by the appropriate Legislature and is not otherwise  disqualified  under the Constitution or  any  law made  by  the  appropriate  Legislature  on  the  ground  of non-residence,  unsoundness  of  mind, crime or  corrupt  or illegal  practice,  shall be entitled to be registered as  a voter   at   any  such   election.   This  Article   clearly contemplates law being enacted by an appropriate Legislature providing  for qualifications and disqualifications  subject to  which  a citizen of India not less than 18 years of  age shall  be entitled to be registered as a voter and  exercise his  right to franchise.  Article 327 provides for law being made  by  Parliament  subject  to   the  provisions  of  the Constitution  with respect to all matters relating to or  in connection  with elections to either House of Parliament  or to  the House or either House of the Legislature of a  State which  law  may  include provisions for the  preparation  of electoral rolls, the de-limitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.

   The  Representation of the People Act, 1951 was  enacted to  provide  for the conduct of elections to the  Houses  of Parliament  and to the House or Houses of the Legislature of each  State,  the qualifications and  disqualifications  for membership  of those Houses, the corrupt practices and other offences  at  or in connection with such elections  and  the decision  of  doubts  and  disputes  arising  within  or  in connection  with such elections.  So far as the exercise  of right  to franchise is concerned there are only two relevant provisions  in  this Act.  Clause (e) of sub-section (1)  of Section  2 defines elector in relation to a constituency  to mean 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 Section 16  of the Representation of the People Act, 1950.   Section 62 provides as under:-

   62.   Right  to  vote - (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

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constituency   if   he   is   subject    to   any   of   the disqualifications   referred  to  in   section  16  of   the Representation of the People Act, 1950 (43 of 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 that 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   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.

   Section  62 can clearly be divided into two parts.   One part is sub-section (1), which is couched partly in positive form  and  partly  in  the negative.  A person  who  is  not entered  in  the electoral roll of any constituency  is  not entitled  to  vote  in that constituency though  he  may  be qualified under the Constitution and the law to exercise the right  to  franchise.  To be entitled to cast a  ballot  the person  should  be  entered in the electoral roll.   Once  a person  is  so  entered  he  is entitled  to  vote  in  that constituency.   The  phrase  for the time being  has  been significantly and strategically cast into the framing of the provision  and  qualifies  the expression  entered  in  the electoral roll of any constituency.  It gives the factum of entry  in the electoral roll of any constituency a  decisive role  to  play  for  finding out whether he  is  or  is  not entitled  to  vote in that constituency.  The other part  of Section 62 consists of sub-sections (2) to (5).  In spite of a  person having been entered into an electoral roll and  by virtue  of such entry having been conferred with a right  to vote,  such right may yet be defeated by existence of any of the   disqualifications   or   ineligibilities  enacted   by sub-sections (2) to (5).

   The  Representation of the People Act, 1950 was  enacted to  provide for, inter alia, the qualifications of voters at election  to the House of the People and the Legislatures of States,  the  preparation  of electoral rolls,  and  matters connected  therewith  -  the subjects which have  been  left untouched  by  the latter Act of 1951.  Electoral rolls  for Council  constituencies  are prepared under part IV  of  the 1950  Act which part now consists of only one section, i.e., Section 27, the relevant part whereof reads as under:-

   27.    Preparation  of  electoral   roll   for   Council constituencies.-  (1)  In this section, local  authorities constituency,  graduates  constituency   and  teachers constituency  mean  a  constituency   for  the  purpose  of elections  to  a Legislative Council under  sub-clause  (a), sub-clause  (b) and sub-clause (c), respectively, of  clause (3) of article 171.

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   (2) xxxx xxxx xxxx xxxx@@                        IIII

   xxxx xxxx xxxx xxxx

   (3)  For  the  purpose of elections to  the  Legislative Council  of a State in the graduates constituencies and the teachers  constituencies,  the State  Government  concerned may,  with  the concurrence of the Election  Commission,  by notification  in  the  Official Gazette, specify -  (a)  the qualifications  which  shall be deemed to be  equivalent  to that  of  a  graduate of a university in  the  territory  of India, and

   (b)  the  educational institutions within the State  not lower in standard that that of a secondary school.

   [(4)  The  provisions of sections 15,16,18,21,22 and  23 shall  apply  in relation to graduates  constituencies  and teachers  constituencies  as  they  apply  in  relation  to assembly constituencies.]

   (5) Subject to the foregoing provisions of this section, -

   [(a)]  every  person who [is] ordinarily resident  in  a graduates  constituency  and has, for at least three  years [before  the  qualifying date] been either a graduate  of  a university in the territory of India or in possession of any of  the  qualifications specified under clause (a)  of  sub- section  3)  by  the State Government  concerned,  shall  be entitled  to  be registered in the electoral roll  for  that constituency;  and

   ([b)]  every  person who [is] ordinarily resident  in  a teachers  constituency,  and  has,  within  the  six  years immediately  [before the qualifying date for a total  period of  at least three years, been engaged in teaching in any of the  educational institutions specified under clause (b)  of sub-section  (3) by the State Government concerned shall  be entitled  to  be registered in the electoral roll  for  that constituency.

   [(6)]  For  the purpose of sub-sections (4) and (5)  the qualifying date shall be the 1st day of November of the year in  which the preparation or revision of the electoral  roll is commenced.]

   Sub-section  (4)  above-said  refers to a  few  sections placed  in  part III entitled Electoral Rolls for  Assembly Constituencies  and  makes  them  applicable  to  teachers constituencies also.  Sections 16 and 19 provide as under:-

   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 of mind and stands so declared by  a competent court;  or

   (c) is for the time being disqualified from voting under

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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 disqualification  under clause (c) of sub-section (10  shall forthwith   be   reinstated   in     that   roll   if   such disqualification  is,  during  the period such  roll  is  in force, removed under any law authorising such removal.]

   [19.   Conditions  of  registration.  - 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.]

   Section 15 provides for an electoral roll being prepared for  every  constituency.  Section 18 restrains  any  person@@             JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ being  registered in more than one electoral roll.   Section@@ JJJJJJJJJJJJJJJJJJJJ 21  prescribes  the manner for preparation and  revision  of electoral  rolls.  Correction of entries in electoral  rolls is  provided  for by Section 22.  Section 23 prescribes  for inclusion   of  names  in  electoral   rolls  as  also   for transposition  of  names from one electoral roll to  another one.

   A  perusal of the above-said provisions leads to certain irresistible  inferences.   Article 326 of the  Constitution having  recognised  the doctrine of adult suffrage has  laid down   constitutional   parameters   determinative  of   the qualifications    and    disqualifications    relating    to registration  as a voter at any election.  The two Articles, i.e.,   Article  326  and   Article  327  contemplate   such qualifications  and  disqualifications being  provided  for, amongst  other things, by the appropriate Legislature.   The fountain  source  of  the  1950 Act and  1951  Act  enacting provisions  on such subject are the said two Articles of the Constitution.   The provisions of Section 16 of the 1950 Act and  Section 62 of the 1951 Act read in juxtaposition go  to show  that  while  Section 16 of the 1950 Act  provides  for disqualifications  for registration in an electoral  roll, (qualifications  having  been  prescribed   by  Section   27 thereof),  Sections  62 of the 1951 Act speaks of right  to vote  which  right is to be determined by reference to  the electoral  roll of the constituency prepared under the  1950 Act.   The  eligibility for registration of  those  enrolled having  been tested by reference to Section 16 or Section 27 of  the  Act,  as the case may be, and  the  electoral  roll having  been prepared, under the 1950 Act if a person is  or becomes  subject to any of the disqualifications provided in clauses  (a)  (b) (c) of sub-section (1) of Section 16,  two

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consequences  may follow.  His name may forthwith be  struck off the electoral roll, in which the name is included, under sub-section  (2) of Section 16 of the 1950 Act.  Even if the name  is  not so struck off yet the person  is  disqualified from  exercising right to vote at the election by virtue  of sub-section  (2)  of  Section  62  of  the  1951  Act.   The qualifications  prescribed  for enrolment in  the  electoral roll as provided by clause (b) of sub-section (5) of Section 27  of  the  1950  Act are :  (i) ordinary  residence  in  a teachers  constituency, (ii) being engaged in the  relevant educational institution for a total period of at least three years within the six years immediately before the qualifying date.   The  enquiry into availability of these  eligibility qualifications,  under  the scheme of the 1950 Act is to  be made  at  the time of preparation of the electoral  roll  or while  entering  or  striking  out a name  in  or  from  the electoral roll.  Section 62 of the 1951 Act does not provide that  a  person  who is not qualified to be enrolled  as  an elector  in the electoral roll shall not be entitled to vote at the election.  To put it briefly a disqualification under Section 16 of the 1950 Act has a relevance for and a bearing on  the  right to vote under Section 62 of the 1951 Act  but being  not  qualified  for enrolment in the  electoral  roll under  Section  27 of the 1950 Act has no relevance  for  or bearing on the right to vote at an election under Section 62 of  the  1951  Act.   That  is  the  distinction  between  a disqualification and not being qualified.

   It  will  be appropriate to take stock of the  available judicial opinion on the issue at hand.  We will straightaway proceed  to  refer  to  a  Constitution  Bench  decision  in Hariprasad  Mulshanker  Trivedi Vs.  V.B.  Raju and Ors.   - 1974  (1)  SCR  548.  All the decided cases  of  this  Court available  till then were noticed by the Constitution Bench. The  dispute arose out of an election to elect four  members of  the Council of States from the State of Gujarat held  in April  1972.  The main ground urged in the election petition for declaring the election of the respondents 4 and 5 in the election  petition  void  was that they  were  not  ordinary residents   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 and as such they were not electors  within  the meaning of Section 2 (1)(e)  of  the 1951  Act  and  consequently were also not  eligible  to  be candidates  in  the election.  The Constitution  Bench  held that  the question whether a person suffers from any of  the disqualifications  specified  in Section 16 of the 1951  Act can  always  be  gone into by the Court trying  an  election petition  and the electoral roll was not conclusive or final in  respect  of  these matters but the ground taken  in  the election petition to declare the election of the respondents 4  and  5  void was not that they suffered from any  of  the disqualifications mentioned in Section 16;  the ground taken was  that since the elected respondents were not  ordinarily resident  in  any  of the  Parliamentary  constituencies  of Gujarat,  they  had  not  fulfilled one  of  the  conditions necessary  to be satisfied for registration in the electoral roll.    In  other  words,  the   ground  taken  was  not  a disqualification  but not being qualified to be enrolled as  an  elector.   The  Constitution   Bench  also  drew   a distinction  between  lack  of  jurisdiction  or  power  and erroneous exercise thereof, placing on record the difficulty in formulating an exhaustive rule to tell when there is lack of power and when there is an erroneous exercise of it.  The

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Constitution  Bench  concluded  that a wrong decision  on  a question of ordinary residence for the purpose of entering a persons  name in the electoral roll cannot be treated as  a jurisdictional error which can be judicially reviewed either in  a  Civil  Court  or before an  Election  Tribunal.   The Constitution Bench also held that the 1950 Act is a complete code  in  the  manner  of  preparation  and  maintenance  of electoral  rolls.  The relief of enrolment, or striking  out the  name of a person enrolled therein on the ground of  his lacking in qualifications conferring a right to be enrolled, must be adjudicated in the manner prescribed by the 1950 Act invoking  the  jurisdiction of the authorities  contemplated therein.   The  Constitution Bench held that  non-compliance with  the provisions of Section 19 of the 1951 Act (which in the  case at hand is pari materia with Section 27 (5)(b)  of the  1950  Act)  cannot furnish a ground  for  declaring  an election void.

   In  Nripendra Bahadur Singh Vs.  Jai Ram Verma and  Ors. -  AIR  1977 SC 1992 the election of the returned  candidate was  challenged and sought to be set aside on the ground  of inclusion  of certain electors in the electoral rolls though they  had ceased to be qualified from being so enrolled  and as  such  were  not  entitled to  vote  notwithstanding  the presence  of  their  names in the electoral rolls  and  that their  participation in the election had materially affected the  result.   This Court, following the Constitution  Bench decision in Hariprasad Trivedis case (supra), held :

   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 not been corrected  before the  last hour of making nominations.  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.  In the case in question the  persons  whose names  were recorded in the electoral roll and  participated in  the voting were not disqualified under Section 16 of the 1950  Act.  That being the position it would have been wrong on the part of the Presiding Officer not to allow the voters whose  names  were  recorded in the electoral  roll  of  the constituency to participate in the voting, even though their names  could  have  been  earlier at  the  appropriate  time legitimately excluded from the electoral roll.  These voters are  electors within the meaning of Section 2 (1) (e) of the 1951  Act and were entitled to vote under Section 62 of  the 1951 Act.

   In  a  democracy  and for that matter  in  an  election, perennial  vigilance should be the watch-word for all.   If, therefore,  notwithstanding  the  provisions   of  the  law, appropriate  action  was not taken at the appropriate  time, the  provisions  of  the election law which have got  to  be construed   strictly,  must  work   with   indifference   to consequences, immediate or mediate. [emphasis supplied]

   The  Court in Nripendra Bahadurs case also noticed  the provisions  of sub-section (3) of Section 23 of the 1950 Act which  is  applicable  to  electoral rolls  in  relation  to teachers  constituencies  and provides that  no  amendment, transposition  or deletion of any entry shall be made  under Section  22 and no direction for the inclusion of a name  in

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the  electoral  roll of a constituency shall be given  under Section 23 after the last date for making nominations for an election  in  that  constituency  or  in  the  Parliamentary constituency within which that constituency is comprised and before  the completion of that election.  During the  course of  its  judgment  this Court has also  observed  that  mere remissness  of  the  officers in performing  their  duty  in preparation  of the electoral rolls is not relevant for  the purpose  of  determining the legality of an election in  the entire  scheme  of  the Act and the object  and  purpose  of preparation of electoral rolls under the 1950 Act.

   A  plea for avoiding an election on a ground akin to the one  raised  in  the  case  before   us  came  up  for   the consideration of a Constitution Bench of this Court in Laxmi Charan  Sen  and Ors.  Vs.  A.K.M.  Hassan Uzzaman and  Ors. -(1985)  4 SCC 689.  It was held:- Notwithstanding the fact that  the roll contains these errors and they have  remained to  be corrected, or that the appeals in respect thereof are still   pending,  the  Registration   Officer  is  under  an obligation to publish the roll by virtue of Rule 22.

   ..that  the  fact that certain claims and  objections are  not  finally disposed of, even assuming that  they  are filed  in accordance with law, cannot arrest the process  of election to the Legislature.  The election has to be held on the  basis  of the electoral roll which is in force  on  the last date for making nominations.

   During the course of its judgment the Constitution Bench has  observed  that  election  laws  abhor  a  vacuum;   the electoral rolls may contain errors 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.

   Two Full Bench decisions of two High Courts have come to our  notice.  In Ghulam Mohiuddin Vs.  Election Tribunal for@@      JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Town Area Sakit and Anr.  - AIR 1959 Allahabad 357, Raghubar@@ JJJJ Dayal, J.  (as His Lordship then was) expressed the majority opinion  by  holding that a persons non-residence  for  the prescribed  period  or not attaining the age of 21 years  is not his disqualification for registration but amounts to his being not qualified to be registered;  so long as one is not qualified no question of disqualification arises.  A vote is not  unlawful merely on account of the fact that the  person had no right to have his name entered in the electoral roll.

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M.L.  Chaturvedi, J.  agreeing with Raghubar Dayal, J.  held that the electoral roll is to be deemed final and conclusive as  far  as  the fulfilment of qualification of a  voter  is concerned but it is not to be deemed final and conclusive by the  Election  Tribunal  so  far  as  the  disqualifications attaching  to  such persons are concerned.   Chaturvedi,  J. noticed  the  well-settled practice in England  having  been adopted  in  the Representation of the People Act  and  held that  an  entry in the electoral roll has to be taken to  be conclusive  proof  of the fact that the person  fulfils  the requisitive  conditions  as  to  age and  residence  in  the Constituency;   finality  has been given to the decision  of the  officer preparing the roll insofar as the fulfilment of conditions  of registration is concerned but it has not been considered  desirable  to  extend the same finality  to  the decision on the subject of disqualification as the latter is a more serious matter.

   The Full Bench decision of Allahabad High Court has been followed  by  the  Punjab & Haryana High Court in  Rool  Lal Mehta  Vs.  Dhan Singh - 1967 (69) PunLR 618.  The  question arising for decision was whether an election petition can be filed  on the ground of the voter below the age of 21  years having  been allowed to cast vote at the election by  virtue of  his being enrolled as an elector in the electoral  list. The Full Bench held that after the electoral rolls have been finalised  the  voting  of  a person whose name  is  on  the electoral  roll  cannot be challenged as being void  on  the ground  that he was under 21 years of age on the  qualifying date  and resort cannot be had to Section 100 (1)(d)(iv)  of the  1951 Act to enable the dispute as to age being tried as an issue by an Election Tribunal in an election petition.

   We find ourselves in agreement with the law so stated by the  two  Full Benches in Ghulam Mohiuddin (supra) and  Roop Lal Mehta (supra) and record our approval of the same.

   One  of  the  principles underlying the plenary  bar  on judicial  proceedings in election matters created by Article 329(b)  is the pre- emptory urgency of prompt engineering of the    whole   election     process   without   intermediate interruptions  by  way of legal proceedings challenging  the steps  and  stages  in  between  the  commencement  and  the conclusion.   (See Mohinder Singh Gill AIR 1978 SC 851, Para 30)  The same principle underlies sub-section (3) of Section 23  of  1950 Act.  The last date for making  nomination  for elections  in a constituency and the date of declaration  of result  are the terminus a quo and terminus ad quem  between which  the electoral rolls must remain untouched.  Amendment (which will include inclusion), transposition or deletion of entries   in  electoral  rolls  are   all  taboos  in   this interregnum.

   It  is  true that the Assistant  Electoral  Registration Officer-cum- District Magistrate, Patna was not justified in sitting  over the objections laying serious challenge to the legality  of  enrolment of a large number of voters  in  the electoral  roll.  Such objections should have been  promptly dealt with and disposed of.  Withholding of dealing with the objections  on the ground that the officer did not have time enough   available   at   his   disposal  was   hardly   any justification  for the inaction on the part of the  officer. The  failure  on the part of the officer to dispose  of  the objections  has  laid  to an allegation being  made  in  the election  petition that the officer was obliging the  ruling

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party in the State of Bihar as it stood to gain by inclusion of  the  names of ineligible voters in the  electoral  roll. Such  delay  in  disposal  of   the  objections  has  to  be deprecated.   Preparation and maintenance of electoral rolls is  an  ongoing  process.   A  meaningful  democracy   means participation  of  all eligible citizens in the exercise  of right  to vote and exclusion of ineligible voters therefrom. Such goal achieved, the result of election would reflect the will  of the people.  Watchful and alert citizenry  assisted by responsible and responsive bureaucracy entrusted with the task as to electoral rolls is needed to reach the said goal. The  need  to  hear and decide claims for  inclusion  in  or exclusion  from  electoral  rolls promptly  and  objectively hardly  needs  to be emphasised.  However, we  have  already held  this  could  not have been a ground for  avoiding  the election and we leave the matter at that.

   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 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-section  (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.

   The  view taken by the learned Designated Election Judge in  the  judgment under appeal cannot be found  fault  with. The  appeal is held liable to be dismissed and is  dismissed accordingly.   The  respondent  has chosen  not  to  appear. Hence no order as to the costs.