CASE NO.: Appeal (civil) 622 of 1998 PETITIONER: BABURAO RESPONDENT: MANIKRAO AND ANR. DATE OF JUDGMENT: 13/05/1999 BENCH: SUJATA V. MANOHAR & K. VENKATASWAMI JUDGMENT:
JUDGMENT
1999 (3) SCR 547
The Judgment of the Court was delivered by
K.VENKATASWAMI, J. Aggrieved by the dismissal of Election Petition No, 4/95
on the file of Bombay High CoUart (Aurangabad Bench), this appeal is filed
by the appellant.
In January, 1995 the elections to the Maharashtra State Legislative
Assembly were held. The appellant and the first respondent alongwith others
had filed nominations to contest from 211 Nilnage Assembly Constituency,
Latur District, The appellant raised objections before the Returning
Officer (Respondent No, 2 ) to the candidature of first respondent.
According to the appellant, as the first respondent’s name was appearing in
the electoral rolls of 211 Nilanga Assembly Constituency and also 206 Latur
Assembly Constituency, he could not be an elector in both the
constituencies and, therefore, his nomination has to be rejected. After
hearing the parties, the Returning Officer overruled the objections of the
appellant by an order dated 19.1.1995. A revision filed before the Chief
Electoral Officer, Maharashtra State, was also not successful. The
Returning Officer announced the result of the 211 Nilanga Constituency on
12.3.1996 by declaring that the first respondent was elected from that
constituency.
The appellant challenged the election of the first respondent by filing an
Election Petition. The main challenge in the election petition was on the
ground that the first respondent’s name appears in two assembly
constituencies and as such he has incurred disqualification under the law
relating to election of membere to the Legislative Assembly. It was also
contended by the appellant that the first respondent was not “ordinarily
resident” within the meaning of Section 20 of the Representation of People
Act, 1950 (hereinafter called the “1950 Act”) in Nilanga Constituency and,
therefore, not qualified to contest the election from the said
Constituency. It was further contended that the objection raised by him
before the Returning Officer was wrongfully and illegally turned down.
The first respondent contested the Election Petition denying all the
objections raised by the appellant. According to the first respondent, his
name finds a place in the electoral roll for the Nilanga constituency and,
therefore it was not open to the appellant to raise the objection that he
was not an ordinary resident of any the villages coming under Nilanga
Constituency. According to the first respondent, he was not disqualified to
contest from Nilanga Constituency as contended by the appellant.
Before the learned Judge, the parties have agreed that two issues can be
framed as preliminary issues and on those issues no oral or documentary
evidence need be adduced. Accordingly, the following issues were framed :.-
“(1) Do the entries of the name of the respondent No.1 in two Assembly
Constituencies entail any disqualification and does the election become
void on that count?
(2) Is the petition tenable in the absence of essential or necessary
parties?
(3) What Order?”
The learned Judge on the basis of the submissions made before him answered
the first issue in the negative and the second issue affirmatively.
Accordingly, under the third issue he dismissed the election petition.
Mr. O.P. Rana, learned Sr. Counsel appearing for the appellant, contended
that the High Court should have held accepting the case of the appellant
that in view of the first respondent’s name appearing in the electoral
rolls of two constituencies, namely, 206 and 211, he was not eligible to
contest the election-from Nilanga Constituency. According to the learned
Sr. Counsel that on a conjoint reading of relevant provisions of the
Representation of People Act,
1950 and 1951, the High Court should have held that the first respondent
was not qualified to be chposen as he was not eligible to contest the
election and as such the election was void ab initio, In other words, the
contention of the learned Senior Counsel for the appellant was that the
first respondents’s name having been found in the electoral roil of more
than one constituency, he has incurred the disqualification from being
contested and his nomination ought to have ben rejected when objection was
raised by the appellant before the Returning Officer. In support of that
contention, he placed reliance on Section 5(c) of 1951 Act read with
Section 2(l)(e) of the. same Act; He also placed reliance on Section 33(5)
read with Section 36(2)(b) of the 1951 Act and contended that the failure
on the part of the first respondent to produce the electoral roll of 206
Latur Assembly Constituency wherein his name finds a place, the Returning
Officer ought to have rejected the nomination of the first respondent
accepting the objection raised by the appellant. According to the learned
Sr. Counsel, the High Court erred in holding that Sections 17 and 18 of
1950 Act are not mandatory but only directory. He placed reliance on Sher
Singh Budh Singh & Anr, v. The State of Punjab & Ors., AIR (1965) Punjab
361 and Anandrao Sitaram Npgmote & Anr. v.Shri S.P. Mohonj & Ors,, ILR
(1967) Bom. Series (1358). He also invited our attention to Jagannaih R.
Nunekar v. Genu Goyind Kadam, [1989] Supp. 1 SCC 55, Rosamma Punnose V.
Balakrishnan Nair, AIR (1958) Kerala 154, Mohammed Rafique v. S.M. Pagnis,
District Judge, Bhind & Anr,, AIR (1960) M,P. 369 and Lila Krishan v.Mani
Ram Godara, [1985] Supp. I SCC 179.
Mr. S.M. Jadhav, learned counsel appearing for the first respondent, in
reply to the contentions of the learned Sr. counsel for the appellant
submitted that so long as the name of the first respondent finds a place in
the electoral roll of Nilanga Constituency and the nomination of the first
respondent was filed on that basis, the question of production of electorai
roll relating to 206 Latur Constituency did not arise and the reliance
placed on Section, 33(5) of
1951 Act was misconceived. According to the learned counsel appearing for
the first respondent, the objections as to the inclusion of first
respondent’s name in 2-11 Nilanga Constituency, if at all, ought to have
been raised before his name was validly included in the electoral rolls of
that constituency. Once the name finds a place in the electoral roll
validly published, the same cannot be challenged on any ground to oppose
the nomination when filed from that constituency. In support of that he
placed reliance on a judgment of this Court in B.M. Ramaswamy v.
B.M.Krishna Murthy & Ors., [1963] 3 SCR 479. It was the contention of the
learned counsel for the first respondent that this Court has repeatedly
held that the right to contest an election is only a statutory right and
the right to challenge an election is also circumscribed by the provisions
of 1951 Act on the grounds mentioned in Section 100 of that Act and In no
other manner. In support of that, he placed reliance on a decision of the
Constitution Bench Of this Court in Hariprasad Mulshankar Trivedi v. B.B.
Raja & Ors. [1974] 3 SCC 415. The learned counsel also invited our
attention to Rangilal Chaudhari v. Dhau Sao & Ors., [1962] 2 SCR 401, Rdfiq
Khan & Anr. v.LaxminarayanI Sharma, [1997] 2 SCC 228 and Indrajeet baruah.
etc. etc. v. Election Commissioner of India, AIR (1984) SC 1912,
We have considered the rival submissions. It is not in dispute and cannot
be disputed that the name of the first respondent finds a place in the
electoral roll of 206 Latur Constituency as well as in the electoral rolls
of 211 Nilanga Constituency. We, therefore, proceed on that basis. The
issue is whether the appearance of the name of the first respondent in two
constituencies is a disqualification to contest from any one of the
Constituencies under any of the provisions of the Representation of the
People Act, 1950 or 1951, At this juncture it will be useful to set out the
relevant provisions of the 1950 and 1951 Act :-
The Representation of the People Act, 1950
Section 16- Disqualifications for registration in an electoral roll :-(l) 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 “the 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 (1) shall forth with be re-instated in that roll if such
disqualification is, during the period such roll is in force; removed under
any law authorizing such removal.]
Section 17- No person to be registered in more than one constituency – No
person shall be entitled to be registered in the electoral roll for more
than one constituency;
Section 18 – No person to be registered more than once in any constituency
– No person shall be entitled to be registered in the electoral roll, for
any constituency more than once.
Section 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 roil for that constituency.
Section 20 – Meaning of “ordinarily resident”-
[1] A person shall not be deemed to be ordinarily resident in a
constituency on the ground only that he owns, or is in possession of,
dwelling house therein.
(1 A) A person absenting himself temporarily from his place of ordinary-
residence shall hot by reason thereof cease to be ordinarily resident
therein,
(IB) A Member of Parliament or of the Legislature of a State shall not
during the term of his office cease to be ordinarily resident in the
constituency in the electoral roll of which he is registered as an
electoral at the time of his election as such member, by reason of his
absence: from that constituency in connection with his duties as such
member.]
(2) A person who is a patient in any establishment maintained wholly or
mainly for the reception and treatment of persons suffering from mental
illness or mental defectiveness, or who is detained in prison or other
legal custody at any place, shaft not by reason thereof be deemed to be
ordinarily resident therein.
(3) Any person haying a service qualification shall be deemed to be
ordinarily resident on any date in the constituency in which, but for
having such service qualification, he would have been ordinarily resident
on that date]
(4) Any person holding any office in India declared by the President in
consultation with the Election Commission to be an office to which the
provisions of this sub-section apply, shall be deemed to be ordinarily
resident on any date in the constituency in which, but for holding of any
such office, he would have been ordinarily resident on that date.
(5) The statement of any such person as is referred to in sub-section (3)
or sub-section (4) made in the prescribed form and verified in the
prescribed manner, that [but for his having the service qualification] or
but for his holding any such office as is referred to in sub-section; (4)
he would have been ordinarily resident in a specified place on any date,
shall, in the absence of evidence to the contrary, be accepted as correct].
(6) The wife of any such person as is referred to in sub-section (3) or
sub-section (4) shall if she be ordinarily residing with such person be
deemed to be ordinarily resident on in the constituency specified by such
person under sub-section (5).
(7) If in any ease a question arises as to where a person is ordinarily
resident at any relevant time the question shall be determined with
reference to all the facts of the case and to such rules as may be made in
this behalf by the Central Government in consultation with the Election
Commission.]
(8) In sub-sections (3) and (5) “service qualification” means-fa) being
a member of the armed forces of the Union; or
(b) being a member of a force to which the provisions of the Army Act,
1950 (46 of 1950) have been made applicable whether with or without
modifications; or
(c) being member of an armed police force of a State, who is serving
outside that State or
(d) being a person who is employed under the Government of India, in a
post outside India.
The Representation of the People Act, 1951
Section 2 – Interpretation – (1) In this Act, unless the context otherwise
requires,-
(e) “elector” in relation to a constituency means 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 (43 of 1950)
Section 5 – Qualifications for membership of a Legislative Assembly -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:
[Provided that for the period referred to in clause (2) of Article 371-A, a
person shall not be qualified to be chosen to fill any seat allocated to
the Tuensang district in the Legislative Assembly of Nagaland unless he is
a member of the regional council referred to in that Article],
Section 32 – Nomination of candidates for election :,-
Any person may be nominated as a candidate for election to fill a seat if
he is qualified to be chosen to fill that seat under the provisions of the
Constitution and this Act for under the provisions of the Government of
Union Territories Act, 1963 (20 of 1963), as the case may be.]
Section 33 – Presentation of nomination paper and requirements for a valid
nomination –
(5) Where the candidate is an elector of different constituency, a copy of
the electoral roll of that constituency or of the relevant part thereof or
a certified copy of the relevant entries in such roll shall, unless it has
been filed along with the nomination paper, be produced before the
returning officer at the time of scrutiny. Section 36 – Scrutiny of
nominations –
(1)………
(2) The returning officer shall then examine the nomination papers and
shall decide all objections which may be made to any nomination and may,
either on such objection or on his own motion, after such summary inquiry,
if any as he thinks necessary, [reject] any nomination on any of the
following grounds :-
[(a) that on the date fixed for the scrutiny of nominations the candidate]
either is not qualified or is disqualified for being chosen to fill the
seat under any of the following provisions that may be applicable, namely
::-
Articles 84, 102,173 and 191.
[Part II of this Act, and sections 4 and 14 of the Government of Union
Territories Act, 1963 (20 of 1963); or
(b) that there has been a failure to comply with any of the provisions of
Section 33 or Section 34; or
(c) that the signature of the candidate or the proposer on the nomination
paper is not genuine.
(4) The Returning Officer shall not reject any nomination paper on the
ground of any defect which is not of a substantial character.
(5)..,……
(6)…,..
(7) For the purposes of this Section, a certified copy of an entry in the
electoral roll for the time being in force of a constituency shall be
conclusive evidence of the fact that the person referred to in that entry
is an elector for that constituency, unless it is proved that he is subject
to a disqualification mentioned in section 16 of the Representation of the
People Act, 1950 (43 of 1950).
Section 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
(20 of 1963] ; or
(b) that any corrupt practice has been committed by a returned candidate or
his election agent or by any other person with 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.]
(2) If in the opinion of [the High Court], a returned candidate has been
guilty by an agent, other than his election agent, of any corrupt practice
but [the High Court] is satisfied –
(a) that no such corrupt practice was committed at the election by the
candidate or his election agent, and every Such corrupt practice was comm
itted contrary to the orders, and [without the consent], of the candidate
or his election agent;
(c) that the candidate and his election agent took all reasonable means for
preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt
practice on the part of the candidate or any of his agents, then [the High
Court] may decide that the election of the returned candidate is not void.
“Article173 -Qualification for membership of the State Legislature -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”
Article 191 – Disqualification for membership -(1)’ A person shall be
disqualified for being chosen as, and for being, a member of the
Legislative Assembly or Legislative Council of a State-
(a) if he holds any office of profit under the Government of India or the
Government of any State specified in the First Schedule, other than an
office declared by the Legislature of the State by law not to disqualify is
holder;
(b) if he is Of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgment of
allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
[Explanation – For the purposes of this clause], a person shall not be
deemed to hold an office of profit under the Government of India or the
government of any State specified in the first Schedule by reason only that
he is a Minister either for the Union or for such State.
(2) A person shall be disqualified for being a member of the Legislative
Assembly or Legislative Council of a State if he is so disqualified under
the Tenth Schedule.]”
Before we proceed further, we shall set out in brief the view expressed by
the High Court. The learned Judge has set out the objection raised by the
appellant as follows ;-
“The main objection by the petitioner to the election of the respondent no.
1 is that the Returned Candidate namely respondent no. 1 was enrolled as
elector (Voter) in Assembly constituency No, 206 i.e. Latur Assembly
Constituency and Assembly Constituency No. 211 i.e. Nilanga Assembly
Constituency, and according to the petitioner, the appearance of name of
the respondent no, 1 in two constituencies is disqualification under
section 16 of the Representation of the People Act, 1950.”
The learned Judge after noticing me provisions of Sections .1.4 to 25 of
the 1950 Act and also noticing the provisions in Chapter II’ and III of
1951 Act held as follows :-
“It is the ease of the petitioner that the respondent no. 1 is disqualified
from contesting election and getting elected to the State Assembly because
of appearance of his name in more than one constituency. The
disqualification on this ground does not find place in any of the above
provisions of law.
It is not in dispute in the present case that at the time of the scrutiny
of the nomination papers, the present petitioner had raised similar
objections against the respondent no. 1 and it is also undisputed that the
Returning Officer – respondent no. 2 overruled all the objections by order
dated 19,1. 1995. It is also an admitted position that the petitioner took
up the matter to the Chief Electoral Officer of the Maharashtra State in
revision, which came to be dismissed by an Order dated 23. 1. 1995,”
In the Course of the judgment under appeal the learned Judge after noticing
Articles 173 and 191 of the Constitution of India observed as follows :-
“It may further be noted that the nomination of a candidate can be rejected
on the ground of disqualification mentioned in Section 16 of the Act, 1950
and disqualification mentioned under Article 173 and 191 of the
Constitution of India. Section 100 of the Act of 1951 mentions the grounds
for declaring the elections to be void and if the Returned candidate was
not qualified or was disqualified to be chosen to fill in the seat on the
date of election, the election can be declared void. Further, improper
rejection of nomination is also a ground to declare the election to be
void. The petitioner does not allege any of such grounds for declaring the
election to be void. It may also be stated at this juncture that the Court
cannot go into the question as to whether the names of certain persons were
entered `illegally as laid down by the Supreme Court in case of S..K.
Chaudhari v. Baidhyanath, AIR (1973) SC 717.”
Ultimately, the learned Judge reached the following conclusion :-
“Admittedly, the petitioner has not raised any objection before the
electoral registration officer about inclusion of the name of the
respondent no. 1 in this Constituency. Section 100 of the Act of 1951
discloses the grounds for challenging the election of returned candidate
and the present petition fails to disclose any of the grounds mentioned in
the said Section. In view of the above discussion, it, therefore, cannot be
held that the appearance of name of the respondent no. 1 in two Assembly
Constituencies entails any disqualification and as such, election of
respondent No. 1 cannot be declared void on the count. Issue No. 1 is,
therefore, answered in negative.”
Oh a careful perusal of the relevant provisions, as extracted above, we are
of the view that the High Court was right in rejecting the contention of
the appellant that the first respondent was disqualified to contest the
Nilanga Constituency as his name was found in two constituencies. We
generally agree with the conclusions arrived at by the High Court. However,
we are not in agreement with the view taken by the High Court that Sections
17 and 18 of 1950 Act are not mandatory. For the purposes of 1950 Act they
are mandatory. For example, to object to the inclusion of the name in the
electoral roll.
There is nothing to suggest in Section 16 of the 5950 Act that if a
person’s name finds a place in more than one constituency that would
automatically entail disqualification from contesting in any one of the
constituencies. It is relevant to note that Section 2(1)(e) of 1951 Act
refers disqualification under Section 16 of 1950 Act alone while
interpreting the word `Elector’ and has not mentioned any contravention
Section 17 as disqualification. No doubt. Section 17 of 1950 Act expressly
states that no person shall be entitled to be registered in the electoral
roll for more than one constituency. But if a person’s name finds a place
in more than one constituency, does it automatically entailthe
disqualificationunder Section 16? We do not think so. Objection under
Section 17 could have been successfully raised to prevent respondent no. l
`s name from being included in Nitanga Constituency.
Likewise, a reading of other sections also does not come to the help of the
appellant to sustain his contention. We are Unable to find any ground after
reading Section 16 of the 1950 Act and Articles 173 and 191 of the
Constitution of India to hold that then nomination of the first respondent
ought to have been rejected. The contention based on Section 33 (5) of the
1951 Act is misconceived. As the respondent no.l did not file his
nomination to the 211 Nilanga Constituency on the basis of his name finding
a place in 206 Latur Constituency. On the other hand he filed the
nomination to 211 Nilanga Constituency, that being the position, the
contention based on Section 33 (5) cannot be accepted and the citations
have no relevance. Likewise, after reading Section 100 of the 1951 Act we
are unable to declare the election of the First respondent void under any
one of the grounds set out therein. It is not in dispute that the appellant
did hot raise any objection before the Electoral Registration Officer about
inclusion of the name of the first respondent in 211 Nilnaga Constituency,
After carefully going through the judgment cited by the learned counsel for
the appellant, we find that they have no application to the facts Of this
case.
In the circumstances, we do not find any infirmity in the judgment of the
High Court in dismissing the Election Petition. The appeal fails and is
dismissed accordingly. There will be no order as to costs.