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PETITIONER: WOPANSAO

       Vs.

RESPONDENT: N.   L. ODYUO & ORS.

DATE OF JUDGMENT28/07/1971

BENCH: RAY, A.N. BENCH: RAY, A.N. SHELAT, J.M.

CITATION:  1971 AIR 2123            1971 SCR  956

ACT: Representation  of the People Act, 1950-Section 20(3) &  30- Service Personnel-Statutory fiction does not take away right to get registered in constituency where personnel ordinarily residing,  though  place  of  service  also-Electoral  roll- Finality of.

HEADNOTE: The appellant challenged the election of respondent No. 1 to the Naga Land Assembly on the ground that the result of  the election  in so far as it concerned the respondent had  been materially affected by the improper reception of votes  cast in  his favour by the personnel of the 12th Battalion  Assam Rifles.   It was urged (i) that the  Electoral  Registration Officer had no jurisdiction to register the personnel of the 12th Batallion Assam Rifles as voters, because, the  service personnel under s. 20(3) of the 1950 Act would be deemed  to be  ordinarily resident on any date in the  constituency  in which,  but  for his having such service  qualifications  he would  have been ordinarily resident on that date  and  (ii) that  the service personnel were not Indian  citizens.   The High Court dismissed the election petition.  Dismissing  the appeal to this Court, HELD:(i)  Section  30  of  the  1950  Act  does  not  confer jurisdiction  on  a civil court to entertain  or  adjudicate upon  a question whether a person is or is not  entitled  to register himself in the electoral roll of a constituency  or to  question the illegality of the action taken by or  under the  authority of the Electoral Registration Officer or  any decision given by the authority appointed under the 1950 Act for  the  revision  of  any  such  roll.   The  civil  court therefore  would have no jurisdiction to adjudicate  upon  a question  whether the personnel of the 12th Battalion  Assam Rifles  in  the  present case  were  validly  registered  as service electors. [958E, F] B.M.  Ramaswamy v. B. M. Krishnamurthy, [1963]  3  S.C.R. 479  and Kabul Singh v. Kundan Singh, [1970] 1  S.C.R.  845, referred to. (ii)But lack of power in the Electoral Registration  Officer to  register  voters in violation of the provisions  of  the relevant  statutes  would  lead to the  ground  of  improper reception,  refusal or rejection of any caption of any  vote which  is  void  and would, therefore,  be  a  avoiding  the

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election under s. 100(1) (d) (iii) of the 1951 Act. Baidyanath Panjiar v. Sitaram Mahto, [1970] 1 S.C.R. 839, (iii)In  the  present case the  Electoral  Registration Officer  his jurisdiction to register the personnel  of  the 12th  Batallion residents in the constituency by  reason  of their statements in the prescribed forms.  The effect of  s. 20(5)  of the 1950 Act is that statement of a member  having service  qualification is to be accepted as correct  in  the absence of evidence to the contrary.  There was no  evidence to displace the statements in the present case. [960E] Under  s.  20(3) a fiction is created  that  members  having service  qualification  would  be deemed  to  be  ordinarily resident  at their home town or place but for their  service qualification.  The statutory fiction is intended 957 to  confer the right to be registered as electors  at  their home  town or village but the fiction cannot take  away  the right  of  persons possessing service qualification  to  get themselves  registered in a constituency in which they  were ordinarily  residing though such place happens to  be  their place of service. [961B] (iv)There  was no evidence to substantiate  the  allegation that  the members of the service personnel were  not  Indian citizens.   On  the  contrary it was in  evidence  that  the Electoral  Registration  Officer  was  satisfied  about  the declarations  of the members of the service personnel  about their citizenship. [962F]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1792  of 1970. Appeal  under  s. 116A of the Representation of  the  People Act, 1951 from the judgment and order dated July 17, 1970 of the Assam and Nagaland High Court in Election Petition No. 1 of 1969. V.   K. Krishna Menon, D. P. Singh, Narayana Nettar and V.   J. Francis, for the appellant. A.K. Sen, S. K. Ghosh, Naunit Lal, A. R. Barthakur, R. C. Chaudhary and Swranjit Sodhi, for respondent No. 1. The Judgment of the Court was delivered by Ray,  J.-This is an appeal from the judgment dated 17  July, 1970 of the High Court of Assam and Nagaland dismissing  the appellant’s election petition. The appellant, respondent No. 11 Odyuo and respondents No. 2 and  3  were  candidates at  37-Wokha  Constituency  at  the election held in the month of February, 1969 for the purpose of  constituting a new Legislative Assembly of the State  of Nagaland. The  respondent Odyuo was declared elected.  Odyuo  obtained 1517  votes and the appellant 1485 votes.  Odyuo secured  32 votes more than the appellant. The  appellant  challenged the election  of  the  respondent Odyuo as a member from 37-Wokha Constituency in the Nagaland Constituent  Assembly.   The  :grounds  for  impeaching  the election  were principally these.  First, the result of  the election in so far as it concerned the respondent Odyuo  had been  materially affected by the improper reception  of  348 votes  cast  in  his favour by the  personnel  of  the  12th Battalion Assam Rifles then posted at Wokha and also by  the wives  of some of them who in view of section 20(3)  of  the Representation  of the People Act, 1950 referred to for  the sake  of  brevity as the 1950 Act were not  eligible  to  be enrolled as voters in the electoral roll of the Wokha

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958 Constituency.  Second, the majority of those 348 voters were not  citizens  of India, and, therefore, the votes  east  by them in favour of the respondent Odyuo were void.  Third, if the  aforesaid  348 votes or the majority of  them  as  void votes were left out of account, the appellant had secured  a majority of valid votes. Among  the  ten issues framed at the trial counsel  for  the appellant  advanced  arguments only on two  issues.   First, whether  the personnel of the 12th Battalion,  Assam  Rifles whose  names are registered as service electors in the  last part of the Electoral Roll for 37-Wokha Constituency  would, but  for their service qualification, have  been  ordinarily resident of Wokha Constituency within the meaning of section 20(3)  of  the  Representation  of  the  People  Act,  1950. Second,  whether any of the electors registered  as  service electors  in the last part of the said Electoral  Roll  were not Indian citizens. This  Court  in  B. M. Ramaswamy v. B.  M.  Krishnamurthy  & Ors.(1) held that the finality of the electoral roll  cannot be challenged in a proceeding impeaching the validity of the election.   The  effect of section 30 of the  1950  Act  was construed  by  this Court in the recent  decision  in  Kabul Singh v. Kundan Singh & Ors.(2) to be that sections 14 to 24 of  the  1950  Act  are a complete code  in  the  matter  of preparation  and maintenance of electoral rolls and  section 30  of the 1950 Act does not confer jurisdiction on a  civil court  to entertain or adjudicate upon a question whether  a person  is  or is not entitled to register  himself  in  the electoral  roll  in  a  constituency  or  to  question   the illegality of the action taken by or under the authority  of the  Electoral Registration Officer or any,, decision  given by  the  authority  appointed under the  1950  Act  for  the revision of any such roll. The  civil  court therefore would have  no  jurisdiction  to adjudicate upon a question whether the personnel of the 12th Battalion  Assam  Rifles in the present  case  were  validly registered as service electors.  The contention on behalf of the  appellant  in the present case was that  the  Electoral Registration  Officer  had no jurisdiction to  register  the personnel  of the 12th Battalion Assam Rifles as  voters  in Wokha  Constituency  because  the  service  personnel  under section  20(3)  of  the  1950 Act  would  be  deemed  to  be ordinarily  residents  on any date in  the  constituency  in which,  but  for his having such service  qualification,  he would have been ordinarily resident on that date.  The  gist of  the  appellant’s contention is that the  members  having service qualification cannot, be registered as voters in the constituency  in  which  they are posted  or  stationed in service and the Electoral (1) [1963] 3 S.C.R. 479. (2) [1970] 1 S.C.R. 845. 959 Registration Officer would have no jurisdiction to register the  persons having service qualification as voters  in  the constituency  in which they are stationed in  service.   The jurisdiction  of  the  Electoral  Registration  Officer  who registered the personnel of the 12th Battalion Assam  Rifles as voters in Wokha Constituency was impeached on the  ground that  the  service  personnel were in the  eye  of  law  not ordinarily  resident in the Wokha Constituency and  as  such they  were  not eligible to be registered as voters  in  the electoral roll of the said constituency. The other grounds on which the qualification of the  service personnel   to  be  registered  as  voters  in  the   Woakha

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Constituency  was questioned was that they were  not  Indian citizens.   Article 326 of the Constitution  confers  voting rights  on  citizens of India.  Section 16 of the  1950  Act disqualifies  a person for registration as a voter if he  is not a citizen of India.  Section 62 of the Representation of the People Act, 1951 called the 1951 Act prohibits a  person from  voting  at an election in any constituency  if  he  is subject to any disqualifications mentioned in section 16 of the 1950 Act.  Under section 100(1)(d)(iii) of the 1951  Act if  the  result of the election in so far it  concerned  the returned  candidate  has  been materially  affected  by  the improper  reception,  refusal or rejection of  any  vote  or reception  of  vote  which is void,  the  court  would  have jurisdiction  to declare such an election void.   Therefore, if  the allegation that the personnel of the 12th  Battalion Assam  Rifles were not Indian citizens was  established,  it was submitted that the election would be declared void. The  jurisdiction of the Electoral Registration  Officer  to register the voters was submitted on behalf of the appellant to  be an infraction of the provisions contained in  section 20  of the 1950 Act on the ground of the  service  personnel not  being entitled to be voters at Wokha Constituency,  and of  section 16 of the 1950 Act read with section 62  of  the 1951 Act challenging the qualification of the voters on  the ground of citizenship.  This Court in Baidyanath Panjiar  v. Sitaram Mahto & Ors.(1) held that the lack of power of  ’the Electoral   Registration  Officer  to  register  voters   in violation  of the provisions of the relevant statutes  would lead  to  the  ground  of  improper  reception,  refusal  or rejection of any vote or reception of any vote which is void and would, therefore, be a ground for avoiding the  election under section 100(1)(iii) of the 1951 Act. Section  20 of the 1950 Act gives the meaning of  the  words ’ordinarily resident’.  Under section 20(3) of the 1950  Act any person having a service qualification shall be deemed to be  ordinarily resident on any date in the  constituency  in which,  but  for his having such service  qualification,  he would  have been ordinarily resident on that date.   Service qualification is defined in section (1)  [1970] 1 S. C.R. 839. 960 20(8)  of  the 1950 Act to mean inter alia a member  of  the Armed  Forces of the Union. or a member of a force to  which the  provisions  of  the  Army  Act,  1950  have  been  made applicable.   Section 20(5) of the 1950 Act enacts that  the statement  of any person as is referred to in section  20(3) in  the Act made in the prescribed form and verified in  the prescribed  manner,  that  but for his  having  the  service qualification he would have been ordinarily resident in  the specified  place  on  any date, shall,  in  the  absence  of evidence  to  the contrary, be accepted as  correct.   Under section 20(6) of the 1950 Act the wife of any such person as is  referred  to  in  sub-section  (3),  shall  if  she   be ordinarily  residing  with  such  person  be  deemed  to  be ordinarily  resident in the constituency specified  by  such person under sub-section (5). The  personnel of the 12th Battalion Assam Rifles  at  Wokha had  indisputably service qualification.  It is in  evidence that  the personnel of the 12th Battalion had been  residing at  Wokha 10 years prior to the time of the  preparation  of the  electoral rolls and at the time of preparation  of  the electoral  rolls  resided at Wokha.  The  service  personnel made statements under section 20(5) of the Act that but  for their having the service qualification they would have  been ordinarily  residents at wokha.  They also  made  statements

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that  their wives were residing with them.   They  submitted forms in the prescribed forms.  These statements made  under Rule  7  of the Registration of Electoral Rules,  1960  were submitted  to  the  Registration  Officer.   The  effect  of section 20(5) of the 1950 Act is that statement of a  member having service qualification is to be accepted as correct in the  absence  of  evidence to the contrary.   There  was  no evidence  to  displace the statements in the  present  case. The  evidence  is that the  Electoral  Registration  Officer accepted the statements as correct and registered the  names of the personnel of the 12th Battalion. The contention on behalf of the appellant was that a  member having service qualification can only be ordinarily resident at  the  constituency in which but for  his  having  service qualification he would have been ordinarily resident on that date, and, therefore, since Wokha was the place for service, Wokha could not be the place for ordinary residence and  his home town or village would be the only place where he  would be  ordinarily  resident.   Such  a  construction  would  be misreading  section  20(3) of the 1950 Act,  having  service qualification  would be deemed to be ordinarily resident  at their  home  town or place but for  their  service  qualifi- cation.   When the personnel made statements to  the  effect that they ordinarily resided at Wokha, they did not want  to take  advantage of the fiction of being ordinarily  resident at their home 961 town  or village but they stated that they  were  ordinarily resident at Wokha,.  The Electoral Registration Officer  was within  his  jurisdiction to register the personnel  of  the 12th  Battalion as ordinary residents at Wokha by reason  of their  statements  in the prescribed forms.   The  statutory fiction is intended to confer the right to be registered  as electors  at  their  home town or village  but  the  fiction cannot  take  away the right of persons  possessing  service qualification to get themselves registered at a constituency in  which  they are ordinarily residing  though  such  place happens to be their place of service. A contention was advanced on behalf of the appellant that in registering  the service electors the  Registration  Officer did  not exercise his discretion but merely carried out  the orders  and directions of the Chief Electoral Officer.   The High  Court referred to the directions and instructions  for preparation  of electoral rolls for Armed  Forces  personnel and held that the statements in form No. 2 as prescribed  by Rule  7  of the Registration of Electoral Rules,  1960  were checked  by the Officer in-charge of the Record  Office  and were  thereafter  forwarded to the Chief  Electoral  Officer concerned  in  whose office the statements were  sorted  out according  to the constituency and thereafter  forwarded  to the Electoral Registration Officer concerned.  We agree with the  reasons  and  conclusion of the  High  Court  that  the decision  of  the  statutory authority which  acted  on  the declarations submitted by the service personnel verified and found  to  be  correct  was  beyond  any  challenge  on  the materials on record. The contentions on behalf of the appellant were that of  the 348 service electors 37 were not Indian citizens, 35 of them being  Nepali  and 2 Sikkimese and further that out  of  the remaining  service electors excepting 69 the rest  were  not Indian   citizens.   These  were  the  allegations  of   the appellant  in  the  particulars  furnished  by  him  in   an application dated 4 October, 1969. The  appellant in his evidence stated that he was not  clear whether  the  service  electors were citizens  of  India  or

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foreigners.  It was also his evidence that when he asked the Record  Officer  at  Shillong he learnt  that  many  of  the service personnel were not Indian citizens.  The evidence of the  appellant is not substantive evidence, or any proof  of the   allegation.   Part  of  it  is  hearsay  and  is   not corroborated.  The other part is not of evidentiary value. The  appellant  relied heavily on the evidence of P.  W.  6, Dhrubajyoti  Lahiri  in  proof of the  allegation  that  the majority of the service personnel were not Indian  citizens. Lahiri said that there was a Long Roll in two volumes  which were  marked  Exhibits  17 and 18.  The Long  Roll  was  the register  containing  the  residential  particulars  of  the personnel, the date of enrolment, and 6 1 1 S.C. India/71 962 other  heads of entries, namely, serial number in the  book, number of personnel, rank, name, father’s name, religion and class  or  caste, residential  particulars  giving  village, nearest  railway  station,  Post  Office.   Tehsil  and   a, District and Province, date of birth, enrolment,  discharge, Education.    There  is  no  column  or  heading   regarding nationality in the Long Roll.  Exhibit 19 which was tendered in  ’evidence  was a list in tabular form.  Exhibit  19  was prepared  by  Lahiri.  He said that he himself  compared  it with the Long Roll.  Lahiri’s evidence was that there was no column in the Long Roll for citizenship.  Lahiri’s  evidence was that the home address of some of these service personnel was  Nepal.   In  cross-examination, Lahiri  said  that  the service  personnel  were called Nepali by  common  parlance. Lahiri  also said that the Service personnel filled  up  the forms  declaring that they were Indian citizens  and  Lahiri himself  also  asked  the service  personnel  about  their citizenship.   His  evidence was that these members  of  the service personnel were Indian citizens. It  is in evidence that the Electoral  Registration  Officer said  that  he was satisfied about the declarations  of  the members   of  the  service  personnel  about  their   Indian citizenship.   The  High Court correctly found that  in  the statements furnished by the service personnel being  Exhibit 6  series and Exhibit A series, they declared themselves  to be citizens of India and the statements were verified by the Record Officer.  The High Court also correctly held that  no objection was taken at any stage and no notice was given  to any  member of the service personnel that their names  would be  objected  to  on the ground that they  were  not  Indian citizens  and  they have not been given any  opportunity  of being heard in respect of the allegation.  No such member of the service personnel was examined.  There is no evidence to substantiate  the allegation which was made that members  of the  service  personnel were not Indian  citizens.   On  the contrary,  the  evidence  oral as  well  as  documentary  is overwhelming and unrebutted that each member of the  service personnel made a statement declaring himself to be an Indian citizen. The  contentions advanced on behalf of the  appellant  fail. The appeal is dismissed with costs. K.B.N. ,Appeal dismissed. 963