ORDER
I.A. Ansari, J.
1. By making this application, the applicant, who is respondent No. 1 in the Election Petition No. 1/2004, has challenged the very maintainability of the Election Petition.
2. In Election Petition No. 1/2004 aforementioned, the election petitioner has challenged the result of the election declaring respondent No. 1, Sri Liansuania, elected to Mizoram Legislative Assembly from No. 28 Phuldungsei (ST) LA Constituency of Mizoram, the declaration of the result having been made on 2.12.2003. The case of the election petitioner being, in brief, thus : Out of the total number of 10,274 votes polled in the said election, the respondent No. 1 received 3,788 votes and the election petitioner received 3,765 votes. In the said election, a large number of persons belonging to Bru community residing in transit camps of Tripura, who, though, according to the election petitioner, not entitled to be enrolled as voters, were, in fact, included in the voters list and a special polling station for these voters was set up, at Tuipuibari, in order to enable them to cast their vote under No. 28 Phuldungsei (ST) LAC. The names of these ineligible voters were included, according to the election petitioner, in the final Electoral Roll of the Constituency in violation of the various procedural mandates stipulated under the Representation of the Peoples Act, 1950, and the Registration of Electors Rules, 1960. The election petitioner alleges that at the said special polling station at Tuipuibari, 86 of ineligible Bru voters had cast their votes* and out of the votes, so cast, the respondent No. 1 secured 35 votes, while the election petitioner secured 6 votes. Thus, according to the election petitioner, if the alleged void votes of those Bru voters are excluded from the total number of valid votes polled by the respondent No. 1 as well as the election petitioner, the election petitioner would have been declared elected from the said Constituency.
3. Heard Mr. SS Dey, learned counsel for the application-respondent No. 1, and Miss. A Baruah, learned counsel, for the election petitioner-opposite party.
4. The challenge to the election of the respondent No. 1 is posed on the ground that the electoral roll contained names of persons, who were not qualified to cast their votes in the election, in question. In short, the case of the election petitioner rests on the legality and/or validity of the final electoral roll prepared and published for the constituency concerned.
5. It is no longer res Integra that the finality of the electoral roll cannot be challenged in an Election Petition even if the some irregularities had taken place in the preparation of the electoral roll or in the publication thereof.
6. In Nripendra Bahadur Singh v. Jai Ram Verma (AIR 1977 SC 1992), the election of the returned candidate was challenged on the ground of inclusion of certain electors in the electoral rolls, who had allegedly ceased to be qualified from being so enrolled, and, as such, were not entitled to vote, their participation in the election having materially affected the result. The Apex Court following the Constitution Bench decision in Hariprasad Mulshankar Trivedi v. V.B. Raju and Ors. (AIR 1973 SC 2602) 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 deadline, 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 watchword 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.”
7. In Nripendra Bahadur’s case (AIR 1977 SC 1992) the Apex Court has also observed, “…………..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.”
8. What follows from the law laid down in Nripendra Bahadur (supra) is that a person, whose name appears in the electoral roll finally published in a constituency, cannot be stopped from casting his vote in the election in respect of which electoral roll has been so published. The objection, if any, has to be raised and disposed of before publication of the final electoral roll.
9. In Shyamdeo Pd. Singh v. Nawal Kishore Yadav, (AIR 2000 SC 3007), the Apex Court summarised the law on the question as to whether the result of an election can be challenged on the ground of disqualification of the electorate, whose names appear in the electoral roll, in the following words :
“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.”
10. Thus, as laid down in Shyamdeo Pd. Singh v. Nawal Kishore Yadav (supra), the 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 Subsections (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.
11. What follows from the above discussion is that a person included in an electoral roll by an authority empowered by law to prepare electoral roll cannot be excluded from exercising his right to cast vote on the ground that he did not satisfy the conditions of eligibility as envisaged under the Representation of Peoples Act, 1950. In the case at hand, however, the entire case of the election petitioner rests on his challenge to the eligibility of some of those, who had allegedly cast their votes in the election, in question.
12. In view of the fact that in an election petition, the question of eligibility of an electorate, whose name stands included in an electorate roll, cannot be challenged, the present election petition, which rests, if I may reiterate, entirely on the grievance that respondent No. 1 has received votes from persons, who were not eligible to cast vote, though their names were included in the electoral roll, cannot be sustained. This position could not be disputed on behalf of the election petitioner.
13. What logically follows from the above discussion is that the present Election Petition is wholly misconceived and untenable in law and if the same is allowed to proceed any further, it will cause gross abuse of the process of the Court.
14. Considering, therefore, the matter in its entirety and in the interest of justice, this Election Petition is dismissed.
15. This election petition along with the Misc Case shall accordingly stand disposed of. The security deposit of Rs. 2,000/- deposited with this Registry shall be given to the High Court Legal Aid Cell. I, however, refrain from imposing any cost on the election petitioner.