ORDER
M. Madhavan Nair, J.
1. The petitioner and respondents Nos. 1 to 3 contested for a seat in the State Legislative Assembly in the general election held on February 20, 1967, from the Trichur Constituency. Counting votes on the 22nd February, the Returning Officer rejected 2075 ballot papers as invalid, announced the petitioner and respondents Nos. 1 to 3 to have polled 25547, 26149, 1570 and 407 votes respectively, and declared the 1st respondent elected. In this election petition the petitioner prays to declare the election of the 1st respondent void and himself to have been duly elected on the following allegations:–
(1) “. . . many ballot papers which were validly marked for the petitioner were rejected as invalid votes . . . The counting supervisors themselves decided whether the votes are valid or not. Under the Rules the counting supervisors have no jurisdiction to do so.
(2) “They allowed ballot papers on which the primary marking was against the symbol of the 2nd and 3rd respondents to be counted as valid votes for the 1st respondent.
(3) “Some of the counting supervisors who nursed a grievance against the petitioner on the ground that he was not sympathetic during their strike against the Government allowed votes which are not really marked for the 1st respondent being counted as votes for the 1st respondent Large number of such votes which were not really votes polled for the 1st respondent happened to be counted as votes in favour of the 1 st respondent.
(4) “Only one counting agent was permitted to be present on one counting table. There were 3 counting supervisors and assistants on one table simultaneously sorting, bundling up and counting for different candidates. One counting agent of
the petitioner on one table could not effectively check or scrutinise the sorting, bundling and counting by 3 persons on the same table
(5) “All the ballot papers issued are not found in the ballot boxes. It is possible that ballot papers on which marks have been made were removed from the counting table.
(6) “In the case of persons who tendered their votes they were falsely personated by the workers of the respondents before the genuine voters came into the polling booth. . . Those votes have to be removed and tendered votes have to be counted as valid votes
(7) “Each elector while entering the polling booth was given two ballot papers one for the Parliament and the other for the Assembly . . . .Large number of votes have become invalid due to this. This was nol the method used for voting in other States in India. . . . This new device adopted in Kerala was illegal and discriminatory ….. The entire election conducted in this State bus to be set aside on that ground alone.
(8) ‘The voters residing at Patturakkal Junction who were included in Part 30 of the Electoral Roll of the Trichur Assembly Constituency, their serial numbers 740 upto 972 in the list of 1964, are not included in the Electoral Roll published in 1966. This is an omission (and) a violation of the provisions of Article 326 of the Constitution of India. . . . (and) the Representation of the Peoplt Act, 1951, and the Registration of Electors Rules. 1960. The election to the Legislative Assembly thus conducted refused the right of franchise to a group of citizens residing in the heart of Trichur Town. Almost all the voters thus excluded would have voted for the petitioner.
(9) The result of the election by which 1st respondent was declared elected has been materially affected by improper reception and refection of the votes and by reception of votes which are void. . . .(and) by non-compliance with the provisions of the Constitution and the Representation of the People Act 1950, the Representation of the People Act, 1951, and the Rules framed thereunder as indicated in the earlier paragraphs …. .and
(10) If the votes are recounted the petitioner would get majority of the valid votes polled at the election.” The 1st respondent by a written statement contested the petition, denying all the allegations made against his election.
2. Fifteen issues were settled for trial:
1. Was any written request to recount made by the petitioner’s agent in due time? If any such request had not been made, is the petitioner entitled to claim a recount of the ballot papers in this election petition?
2. Have ballot papers with two marks, one for the let respondent and another for the 2nd or the 3rd respondent, been counted as valid votes in favour of the 1st respondent?
3. Have ballot papers marked for the petitioner or the 2nd or 3rd respondent been counted in favour of the 1st respondent?
4. Was any vote given by false personation? Are the tendered votes valid? In whose favour do they enure?
5. Is the petitioner entitled to a recount of all the ballot papers?
6. Has any ballot paper validly marked for the petitioner been rejected?
7. Who declared the invalidity of the rejected ballot papers: and did he have the authority to do so?
8. Has the result of election been materially affected by any improper reception or rejection of votes or by non-compliance of the laws?
9. Was any ballot paper on which marks have been made removed from the counting table?
10. Have the citizens residing at Patturakkal Junction of Trichur Assembly Constituency entitled to vote not been included in the electoral roll of the concerned Constituency and has such omission affected the result of the election? Is it open to the petitioner to urge that question in this Election Petition?
11. Whether the Riving of two ballot papers simultaneously was not lawful. Was it discriminatory and violative of Article 14 of the Constitution and has it materially affected the result of the election? is the question relevant in this petition?
12. Is the petitioner entitled to challenge the entire election to the State Legislative Assembly?
13. Is the. election of the 1st respondent void?
14. Is the petitioner entitled to be declared elected?
15. To what relief is the petitioner entitled?
3. The petitioner examined two of the residents of the Patturakkal Junction as P. Ws. 1 and 4, the electoral registration officer, Trichur as P.W. 2, three of his counting agents as P.Ws. 3, 5 and 6, and himself as P.W. 7. and marked the concerned part of the electoral roll for 1964 as Ext. P-l and that for 1966 as Ext. P-2. The 1st respondent examined himself 99 R.W. 1.
4. Issue No. 1. There is no case that any application to recount under Rule 63(2) of the Conduct of Election Rules. 1961, has been made: but, as I have already held in Election Petition No. 3 of 1967, (Ker), the absence of such an application will not be a legal bar to a motion for recount in this Court on the petitioner’s proving the return to be so erroneous as to be unreliable. The issue is found accordingly.
5. Issues Nos. 2 and 3. The allegations which gave rise to these issues are general
and vague. No material facts in relation thereto have been given in the petition or in the evidence. It cannot be said that a ballot paper with two marks against names of two cadidates is always invalid, for it must be valid if one of the marks can be shown to be an impression or smudge caused by wrong folding of the paper, and must be counted for the candidate indicated by the original mark on it. The ballot is the preference or choice of a candidate indicated by the voter. Any other mark on the ballot paper of which he was not aware cannot be his vote or avoid the vote he had recorded. The general statement, without details or particulars, that votes which are not really marked for the 1st respondent have been counted as his votes is not apt to carry any conviction. No specific instance of any ballot paper marked for the petitioner or for the 2nd or the 3rd respondent having been counted for the 1st respondent is alleged. Obviously, these allegations have been made to support the petitioner’s claim to a recount. As has been held in Dr. Jagjit Singh v. Giani Kartar Singh. AIR 1966 SC 773 paras 31 to 34 vague and general allegations would not satisfy the requirements of Section 83 of the Representation of the People Act, 1951, or justify a claim to recount. In the aforesaid case the Supreme Court has cautioned: ”…. care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate’s election is void” The issue goes against the petitioner.
6. Issue No. 4. None of the persons who gave tendered votes at the poll has been examined in this case to prove his identity with the name and description in the electoral roll. No evidence on the allegation of prior voting by false personation has been given. The allegation is not substantiated.
7. Issue No. 5. relates to the claim to recount. The first ground urged therefor is large prevalence of miscounts. P. Ws. 3, 5 and 6 are the counting agents examined to prove it. P. W. 3 has said that some of the votes given for the petitioner have been sorted as invalid by the counting officers, that they did so after showing those papers to him but without heeding his objections thereto and that it was not physically possible for one counting agent to check the sorting, counting and bundling done by three officers — one counting supervisor and two counting assistants –at a table.
P. W. 5 has also deposed likewise and added that votes recorded for respondent No. 2 or respondent No. 3 have been counted for the 1st respondent and that he detected three cases of such miscount, which the counting officers rectified immediately. He admits that he found the petitioner in the counting hall, but did not tell him about the miscounts he found out. That must be because he regarded them as accidental mistakes not likely to recur. Then there is no proof of any subsisting miscount. His main objection is that certain valid votes have been rejected as invalid by the counting officers; but he admits that all the ballot papers so rejected had been placed before the returning officer, and that he does not know what happened to them afterwards.
“After each ballot box was opened and counted they would be placed on the Returning Officer’s table. I have not seen what the Returning Officer did subsequently as regards them.”
P. W. 6 deposed that he had objected to some ballot papers being sorted at invalid but the counting officers gave no heed to it. He too admits that all the ballot papers so sorted had been placed before the Returning Officer and that he does not know what happened to them thereafter.
According to the petitioner he was in the counting hall for about an hour after 8.30 a.m. and thereafter from 3 to 4 p.m. and that his knowledge of the irregularities in counting was only what he heard from Counting agents. His evidence is therefore hearsay, and for that reason cannot be counted.
Thus the evidence adduced does not prove subsistence of any large miscounts in the return.
7A. The next ground is that, with one counting agent allowed for a counting table where three officers were scrutinising, sorting and counting ballot papers, the petitioner could not check the counting to his satisfaction. It is not contended that such restriction in the number of counting agents is violative of any statutory provision. As I have pointed out in another case Election Petn. No. 3 of 1967 (Ker)
”It is clear from the precedure adopted in counting that the counting agents get one opportunity to oversee the ballot papers when they are sorted into different compartments as votes of the different candidates and doubtful papers, and a second opportunity when they are counted and bundled. . . .(and) a third opportunity for the same is provided in recount which can be availed by any counting agent in the absence of the candidate if the poll ran neck and neck.
It may be said that since three opportunities are afforded at different stages of the counting the allowance of one agent to watch three officers working on the samp table appears reasonably adequate.”
Counting is an official act done by public officers and permission given to the candidates and their agents to be present at the counting table is only as a factual assurance of the regularity of that official act which regularity is normally presumed in other cases. What is afforded by law in this regard is only an opportunity for the candidate or his agent to “watch” the counting and to “inspect” ballot papers
before their final rejection. Opportunity means only a chance and not an unfailing certainly to avoid accidental errors. If the latter is what is contemplated by the watching by the counting agents a provision for recount as in Rule 63 (2) would he redun-dant and meaningless.
The election law docs not envisage inspection of every ballot paper by counting agents. Section 64 of the Representation of the People Act, 1951, allows counting agents “to be present at the time of counting” obviously to oversee the counting so as to induce care and circumspection in the work of the. counting officers and. if any accidental error occurs, to have it corrected at once The Returning Officer is at the spot to resolve any controversy between the. counting officers and the counting agents. Since reiection of ballot papers is a serious matter — I have pointed out in my judgment in Election Petn. No. 3 of 1967 (Ker) that it is, an infraction of the important constitutional right of a free citizen to participate in the formation of the majority who is to govern the State for a term to come–law allows it to be done only by officers of the rank and responsibility of a Returning Officer and insists that each counting agent present should he given a reasonable opportunity to inspect every ballot paper before it is finally rejected. But the privilege of inspection is confined to ballot paper that are finally rejected and does not extend to other ballot papers. With regard to the latter, the counting agent is given opportunities to watch their sorting and counting, utilising their presence at the counting table, as best as they can, to point out mistakes to the counting officers for immediate correction. or to carry their objections to the Returning Officer at the hall for immediate relief, or to avail of their notes on such mistakes in an application for recount under Rule 63 (21 even after the total number of votes polled by each candidate has been announced at the end of the counting. The plea of want of satisfactory facilities to oversee the counting is therefore not substential.
7B. A further ground urged is confusion caused to electors at the polling booth by the simuitaneous issue of two ballot papers, one for the Assembly election and the other for the Parliamentary election. Neither the petitioner, nor any of his witnesses has told the manner in which any confusion was or could have been caused by the delivery of both papers at the same time. No elector has been examined to speak about the confusion said to have been caused by the ballot papers. The 1st respondent examined as R. W. 1. has denied causation of any confusion to any elector and asserted that the polling officers used to tell the electors the distinction between the two ballot papers. It is difficult to understand without proot how Ihe issue ot two ballot papers to record votes for the Assembly and for the Parliament could have caused any confusion in anybody. It is much more difficult to imagine how such a general confusion could have prejudiced the petitioner as against the 1st respondent.
7C. It is also alleged that the counting supervisors and counting assistants were N. G. Os. who “nursed a grievance against the petitioner on the ground that he was not sympathetic to them during their strike against the Government” and that they miscounted large number of votes in favour of the 1st respondent. Absolutely no evidence has been adduced to substantiate this allegation; and it is too much to presume that public officials deputed for a public dutv were biased and did things in the most wrong way without positive proof thereof.
7D. it has been held by the Supreme Court in Ram Sewak v. Hussain Kamil, AIR 1964 SC 1249 “(A) an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts.”
Again in AIR 1966 SC 773 the Supreme Court has said: “We are satisfied that the said allegations are vague and general, and the whole object of the appellant in asking lor inspection was to make a fishing enquiry with a view to find out some material to support his case that respondent No. 1 had received some invalid votes and that the appellant had been denied some valid votes. Unless an application for inspection of ballot papers makes out a proper case for such inspection it would not be right for the Tribunal to open the ballot boxes and allow a party to inspect the ballot papers and examine the validity or invalidity of Ihe ballot papers contained in it ”
The allegations and the evidence in the present case, when judged in the light of these observations of the Supreme Court do not make out a case for general inspection and recount. The claim to recount fails.
8. Issue No 6. This issue seems to be based on a misapprehension of the petitioner that the sorting and bundling of certain ballot papers as invalid by the counting officers meant final rejection of these papers. The function of the counting supervisors and assistants was to sort nut doubtful papers, whether they are really invalid or not, tor inspection, scrutiny and decision of the Returning Officer, and it was lor Ihe Returning Officer to decide the validity or invalidity of those papers and count them accordingly. The rejection of a ballot paper can be done only by the Returning Officer. The petitioner has not examined his counting agent at the Returning Officer’s table and there is no allegation that
the Returning Officer was guilty of any miscount. The allegation is about the acts of the counting supervisors and assistants which were really at a preliminary stage as regards invalid and doubtful ballot papers and were therefore of no material consequence, issue No. 6 is found against the petitioner.
9. Issue No. 7. The petitioner’s counting agents, P. Ws. 3, 5 and 6, have stated categorically that the papers sorted as doubtful or invalid by the counting officers had been placed before the Returning Officer, though they were unaware as to what happened to them afterwards. The 1st respondent as R. W. 1 has stated categorically that the Returning Officer has checked every ballot paper in the bundles of invalid papers brought before him by the counting officers, and rejected only such of them as he found invalid, after recording the ground of rejection by a seal and initialling it. It makes clear that the rejection of invalid papers was done by the Returning Officer himself; and there is no evidence to the contrary. It is admitted that the petitioner had a counting agent at the Returning Officer’s table, who could have known what was done at that table. He has not been cited in the case. In the circumstances, I find that the invalidity of rejected ballot papers wa? decided by the Returning Officer who has –and who alone has–the power to reject them.
10. Issue no. 9. The allegation that marked ballot papers might have been removed from the counting table is made vaguely and without any material facts and no evidence has been given thereon The issue is found against the petitioner.
11. Issue No. 10, It has been proved –particularly by the evidence of the Electoral Registration Officer. Trichur as P. W 2 that the residents of 96 houses –the number of qualified adults therein is not known — at the Patturakkal Junction of the Trichui town had not been included in the electoral roll for this election. Counsel for petitioner estimated their number to be above 232 as so many elector had been included from that aref in the prior electoral roll. Ext. P1. for 1964. P. W 2 has sworn that, since the publication of electoral roll for 1964, there was a renumbering of houses and a reallocation of wards in the town when the area concerned which was in Ward No. 29 became part ol Ward No. 28. that in allotting houses to subordinates for local enumeration of electors for revision of the electoral roll in 1966. those 96 houses chanced to be omitted and that the omission was brought to his notice only on January 23, 1967, which happened to be the last date for making nominations for the election.
Under Section 33 (3), of the Representation of the People Act. 1950. no amendment by inclusion of names can be made in the electoral roll after the last date for making nominations for an election in the constituency and before the completion of that election. P. W. 2 could not therefore help the situation when the omission was brought to his notice, as the procedure, under Rule 21 of the Registration of Electors Rules, 1960, for inclusion ol names inadvertently omitted requires a few days for its completion. As per Rule 11 of the above said Rules, two copies of the draft electoral roll would be supplied free —there is no case that it was not done in this case and the presumption is always in favour of regularity of official acts–to every political party for which a symbol has been exclusively reserved in the State. Admittedly the petitioner’s party is one such political party. The purpose of such supply of the draft roll is obviously to see that any defect in it is rectified before it is finalised. Tne 1st respondent has sworn that his party had collected applications from numerous persons for inclusion of their names in the draft electoral roll and filed them before P. W. 2 and that other political parties have also done likewise If persons in the area whose names were not included in the draft electoral roll were supporters of the petitioner — as he has alleged in the election petition — his not having taken steps to see their names included in the electoral roll only spells indifference on his part and on the pan of his party. Admittedly no application for inclusion of name has been made to the individuals concerned.
12. Counsel for petitioner contended that Article 326 of the Constitution commands “elections to be on the basis of adult suffrage” and that therefore every adult citizen in the constituency has a right to record his vote at the election and any election in violation of that command is invalid in law. In Bhawani Prasad Tiwari v. Jagdish Narayan Awasthi, (1958) 16 Ele LR 143p. 160 (MP) Hidayatullah, C J and G.P. Bhutt J. have expressed a dictum — not amounting in a decision which is pertinent here.
“We express no opinion whether the mission of the names of electors can be said to be a breach of the Constitution as held by the Tribunal As at present advised, we do not think so, but since no useful purpose will be served by discussing the matter we leave our reasons out. ”
Article 326 of the Constitution reads:
“The elections to the House of the People and to the Legislative Assembly of everv State shall be on the basis of adult suffrage that is to say every person who is a citizen of India and who is not less than twenty-one 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 this Constitution of 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 iuch election.”
The contention is that “any non-compliance with the provisions of the Constitution” is factor affecting the validity of an election within the meaning of Section 100(1) (d) (iv) of the Representation of the People Act, 1951, and is therefore within the competence of this court to enquire.
No doubt Article 326 concedes adult suffrage. But that every Article has said that such concession does not mean that every adult in the country ean straightway walk into the polling booth and cast his vote. Suffrage, like every other right, can be exercised only in accordance with the procedural laws laid by the Legislature.
Under Article 19 of the Constitution a person has a fundamental right to dispose of his property; but that is not understood to mean that he can dispose of his property Irrespective of the provisions of the Transfer of Property Act, the Registration Act, the Stamp Act, the Insolvency Act, the Code of Civil Procedure, etc. Likewise, an adult citizen having the right of suffrage is obliged to exercise it only in accordance with Section 62 of the Representation of the People Act, 1951. This is clear in Article 326 itself, which expressly says that the concession of adult suffrage means only that, if he fulfils the condtions and qualifications set by law made by the Parliament, he can claim his name “to be registered as a voter” in the electoral roll of the constituency.
The indication is clear that the concession of adult suffrage does not entitle him to ignore the electoral roll which is the basic fabric of an election. If the Constitution-makers thought that every qualified citizen shall have an undeniable right to vote, nothing would have been easier for them than to have said that expressly rather than labouring under the circuitous and long winding expression they have employed in the later part of the Article 326, or could well have stopped with the former part of that Article. On the other hand, after expressing the principle in technical phrase, they have also expressed the idea in plain non-technical language. Both the expressions have to be taken to denote one conception and must be read as if the latter throws light on the former (See Atiabari Tea Co. Ltd. v. State of Assam. AIR 1961 SC 232 Para 51)
The expression “that is to say” in the context of the Article 326 connotes that what follows is the meaning of what precedes it. It equates one with the other. It proclaims that the effect of the concession that ‘election shall be on the basis of adult suffrage’ is that every adult citizen who is not disqualified under the relevant law of the Parliament — the limits- of parliamentary legislation has also been indicated in the Article itself — on the qualifying date fixed by the Parliament will be entitled to register his name as a voter in the concerned roll. It takes him only to the electoral roll which is the threshold of election. It does not take him straightway into the sanetum sanetorum of election, the polling booth. That he has to reach by the ways and in the manner prescribed by law enacted by the Parliament under the authority of Article 327. One thing is obvious from Article 326 and that is that it is not a license to fly straight into the sanctum sanctorum without entering the threshold. The law of the threshold is the Representation of the People Act, 1950, which has its own hierarchy of authorities to administer it. The law inside is the Representation of the People Act 1851. The Election Court is an authority constituted under the latter Act only. It is therefore bound by the provisions therein inclusive of Section 62 thereof, unless and until the High Court strikes down that Section as unconstitutional. Such a case is not put before me.
12A. Non-compliance with the provisions of the Constitution is, within the scope of Section 100(1) (d) (iv) of the Representation of the People Act, 1951, on a par with the non-compliance of other election laws and can avoid an election only if it has materially affected the result of toe election. The question then arises what is election? The process of election begins only with a notification calling upon the constituency to elect a member to the legislature under Part III of the Representation of the People Act, 1951. In N. P. Ponnuswami v. Returning Officer, Manakkal Constituency, AIR 1952 SC 64, a Full Court of the Supreme Court has said:
“The Representation of the People Act, 1951, which was passed by Parliament under Article 327 of the Constitution, makes detailed provisions in regard to all matters and all stages connected with elections to the various legislatures in this country. That Act is divided into 11 parts, and it is interesting to see the wide variety of subjects they deal with ….. Obviously, the Act is a self-contained enactment, so far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any matter connected with elections, we have only to look at the Act and the rules made thereunder.”
Again, in Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233 another Full Court of the Supreme Court observed:
“….. the word ‘election’ in Article 329(b) was used in a comprehensive sense as including the entire process of election commencing with the issue of notification and terminating with the declaration of flection of a candidate. ……”
Delimitation of constituencies and Registration of electors may be steps preliminary to an election, but not part of the election itself, as much as the making of bricks may be a step preliminary to the construction of
a house but not part of the construction of the house itself. It follows that defects in in an electoral roll can be enquired into only under the Act of 1950 by the authorities constituted under it, and not by the Election Court constituted under the Act of 1951.
Counsel relied strongly on Kunhiraman v. Krishna Iyer, 1962 Ker LT 275= (AIR 1662 Ker 190) (FB) where a Full Bench of this Court has held the rectitude of an electoral roll to be within the competence of an Election Court to canvass. I am afraid that dictum stands impliedly overruled by the observations ol the Supreme Court in B.N. Ramaswamy v. B.M. Krishnamurthy, AIR 1963 SC 458 and is therefore no more good law. Though the case before the Supreme Court was of a Panchayat election, as the electoral roll of the Panchayat was the relative part of the electoral roll of the Legislative Assembly the actual question before their Lordships was, as stated in para 7 of the AIR Report, the legality of the inclusion of the appellant’s name in the electoral roll for the Legislative Assembly Their Lordships held:-
“…..It is also common case that the electoral registration officer did not follow the procedure prescribed in Rule 26 relating to the posting of the application in a conspicuous place and inviting objections to such application. It cannot, therefore, be denied that the inclusion of the name of the appellant in the electoral roll was clearly illegal.. . . . We find it difficult to say that the action of the electoral registration officer is a nullity. He has admittedly jurisdiction to entertain the application for inclusion of the appellant’s name in the electoral roll and take such action as he deems fit. The non-compliance with the procedure prescribed does not affect his jurisdiction, though it may render his action illegal. such non-compliance cannot make the officer’s act non est though his order may be liable to be set aside in appeal or by resorting to any other appropriate remedy.
…. .There is, therefore, no provision in the Act which enables the High Court to set aside the election on the ground that though the name of a candidate ts in the list, it had been included therein illegally.”
13. If equitable considerations are of any relevance in this context, they are against the position canvassed by counsel for petitioner. As has been observed by Hidayatullah C. J. and C.P. Bhutt J. in (1958) 16 Ele LR 143 (MP):
“Under the law it is the duty of any person who claims to be a voter to scrutinise the lists and to make an application for inclusion of his name. No such claim appears to have been advanced, and the electoral rolls with the omissions came to be finalised. The learned member of the Tribunal has correctly pointed out that a duty lay upon the voters themselves in the first instance to get their names recorded and because of negligence on their part to get their franchise recognised, the election cannot bt called in question.
In our opinion, the election cannot be called in question merely because a name or names of eligible voters have for some reasons been excluded from the electoral roll, The electoral rolls must be regarded as conclusive evidence for the purpose of the election unless it can be shown that there was some corrupt practice in their preparation, which corrupt practice was designed to further the cause of a particular candidate. No electoral roll can ever presume to be perfectly correct and authentic Mistakes would occur, among which would be omission of names of eligible voters. That, however, is a matter of interest to the voters themselves, on whom the law casts the duty of getting their names recorded. In the absence of any action by the voters themselves a candidate who stands for election and who has no hand in the preparation of the electoral rolls cannot be made to suffer.”
14. Expediency also tells the same. Normally, no electoral roll can ever bt strictly complete. If the omission of the name of any elector in the roll for the constituency is a ground for avoiding the election had on its basis, no election will be safe in this vast country.
15. Counsel for petitioner urged that, in view of the mandatory provision in Article 326 of the Constitution, it Is tht duty of the State or of the Election Commission to have the names of all the electors registered in the electoral roll and that a citizen is not bound to apply therefor. No provision, either in the Constitution or in any Act or in any Rules made by the Parliament, has been shown to me which obliges any authority to enumerate electors from door to door without fail. A citizen may be conceded a right by the law, but its enforcement may depend on his action or inaction.
The State will help him in its enforcement, but is not obliged to take its enforcement suo motu to his door. As indicated already a man might have a right to dispose of his property. It may even be recognized as a fundamental right in him. But the enforcement of that right does not attend his mere intention to convey his property, but only his action in accordance with the law of property, the law of registration, etc. Right in the abstract is one thing and its effectuation in practice is another. The exercise of every right, if it is to be recognised by law, has to be in accordance with the procedural law laid by the legislature. That is why the Constitution has expressly said even as it provided a right of suffrage to every citizen, that the right will, subject to the law of disqualification, entitle him “to be registered as a voter” and said nothing further. The contention deserves only to be repelled.
It follows that the election of the 1st respondent cannot be challenged on the ground that some voters, who reside in a particular area in the constituency, were not included in the electoral roll and therefore could not vote. The petitioner fails on this issue.
16. Issue No. 11. The challenge to the simultaneous issue of two ballot papers, one for the Assembly Election and the other for the Parliamentary election, has not been substantiated by any evidence in this case. No provision of law has been shown to me prohibiting such issuance. As has been observed in para 23 of my judgment in Election Petition No. 3 of 1967 a reasonable classification is an integral part of a rational doctrine of equality and the fact that Kerala his a reputation for its high percentage of literacy and high standard of general political consciousness justifies the first introduction of the experiment in this State. The issue is found against the petitioner.
17. Issue No. 12. It is not shown how the petitioner is entitled to challenge the entire election in the State. Under Section 81 of the Representation of the People Act, 1951, under which this petition has been instituted, only a particular election in a constituency can be challenged. A challenge to the entire election in a State is within the taboo of Section 80 of the Act. The issue is found against the petitioner.
18. Issue No. 8. On the findings on the several issues recorded above, this issue has only to be held unsubstantiated in the case.
19. Issues Nos. 13 to 15. These issues relate to the reliefs that the petitioner is entitled to in this election petition. In consequence of the findings recorded above, the petitioner is not entitled to any relief, either to have the election of the 1st respondent avoided or !o have himself declared elected. The petition fails and is dismissed.
Under Section 119 of the Representation of the People Act, 1951, the returned candidate is entitled to his costs which I award hereby, inclusive of counsel’s fee Rs. 400.