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.
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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
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.
The sole question arising for decision in this appeal is
whether the averments made in the election petition made out@@
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a ground for declaring election to be void within the@@
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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
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
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.
(2) xxxx xxxx xxxx xxxx@@
IIII
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(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
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@@
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being registered in more than one electoral roll. Section@@
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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
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
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
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@@
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Town Area Sakit and Anr. – AIR 1959 Allahabad 357, Raghubar@@
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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.
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
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.
