{"id":157827,"date":"2000-08-28T00:00:00","date_gmt":"2000-08-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shyamdeo-pd-singh-vs-nawal-kishore-yadav-on-28-august-2000"},"modified":"2015-08-12T23:42:54","modified_gmt":"2015-08-12T18:12:54","slug":"shyamdeo-pd-singh-vs-nawal-kishore-yadav-on-28-august-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shyamdeo-pd-singh-vs-nawal-kishore-yadav-on-28-august-2000","title":{"rendered":"Shyamdeo Pd. Singh vs Nawal Kishore Yadav on 28 August, 2000"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shyamdeo Pd. Singh vs Nawal Kishore Yadav on 28 August, 2000<\/div>\n
Author: R Lahoti<\/div>\n
Bench: Cji, R.C. Lahoti, K.G. Balakrishnan<\/div>\n
           PETITIONER:\nSHYAMDEO PD.  SINGH\n\n\tVs.\n\nRESPONDENT:\nNAWAL KISHORE YADAV\n\nDATE OF JUDGMENT:\t28\/08\/2000\n\nBENCH:\nCJI , R.C.  Lahoti & K.G.  Balakrishnan\n\n\n\n\nJUDGMENT:\n<\/pre>\n
R.C.  Lahoti, J.\n<\/p>\n
L…I…T…….T…….T…….T…….T…….T…….T..J<\/p>\n
    Pursuant  to  a Notification issued by the\tGovernor  of
\nBihar  under Section 16 of the Representation of the  People
\nAct,  1951  (hereinafter the 1951 Act, for short),  biennial
\nelections  to  the Bihar Legislative Council from the  Patna
\nTeachers  Constituency were held in April, 1996.  There were
\nfour  candidates in the fray including Nawal Kishore  Yadav,
\nthe respondent, who defeated his nearest rival candidate Dr.
\nP.N.   Sharma by a margin of 870 votes.\t Polling was held on
\n28.4.1996  whereat  the\t respondent secured  3414  votes  as
\nagainst\t 2544  votes  secured  by Dr.\tP.N.   Sharma.\t The
\nrespondent was declared elected.\n<\/p>\n
    On\t24.4.1996 the appellant, an elector duly enrolled in
\nthe  electoral\tlist of the constituency filed\tan  election
\npetition  under\t Section  80  of the  1951  Act\t calling  in
\nquestion  the  election of the respondent.  The only  ground
\nalleged\t in  support of prayer for avoiding the election  of
\nthe respondent was the registration and enrolment of a large
\nnumber\tof  ineligible persons as electors in the  electoral
\nroll  and  consequently improper reception of votes cast  by
\nsuch  illegal  electors\t which had  resulted  in  materially
\naffecting the result of the election insofar as the returned
\ncandidate  was concerned.  The bundle of facts\tconstituting
\nthe  cause of action as alleged by the appellant are briefly
\nstated in the succeeding paragraph.\n<\/p>\n
    On\t22.10.1986  the\t Chief Electoral Officer,  Bihar  in
\nexercise of the powers conferred by Section 27 (3)(b) of the
\nRepresentation of the People Act, 1950 (hereinafter the 1950
\nAct,  for short) issued a notification No.1248 publishing  a
\nlist of educational institutions of the State which shall be
\ndeemed\tto be not lower in standard than that of a secondary
\nschool.\t  On  29.9.1995\t a notice under Rule  31(3)  of\t the
\nElectors Registration Rules, 1960 was published by the Chief
\nElectoral  Officer,  Bihar calling upon all eligible  voters
\nwho  wished to get their names entered in the electoral roll
\nto apply in Form 19 on or before 6.11.1995.  All persons who
\nare  citizens  of India and are ordinarily residents of\t the
\nconstituency  and engaged in teaching work for not less than
\nthree  years during the preceding six years calculated\tfrom
\n1.11.1995  in  an  educational\t institution  not  lower  in
\nstandard  than that of a secondary school were eligible\t for
\nenrolment  as electors in the electoral roll.  According  to
\nthe  election petitioner the authorities entrusted with\t the
\ntask  of preparing the electoral roll included the names  of
\nmany  a\t voters\t in the electoral roll who were not  at\t all
\neligible  for being so included as they were teaching in the
\neducational  institutions which were neither permitted to be
\nestablished  nor  affiliated  nor recognised  by  the  State
\nGovernment   which  was\t mandatorily   required\t under\t the
\nprovisions  of The Bihar Intermediate Education Council Act,
\n1992.\tOn 26.12.1995 Dr.  P.N.\t Sharma, the then member  of
\nLegislative  Council from Patna Teachers Constituency, filed
\nobjections  to the inclusion of the names of such ineligible
\npersons\t in  the  electoral roll seeking deleting  of  their
\nnames.\t In spite of repeated persuasions made by Dr.\tP.N.
\nSharma,\t the  authorities  did\tnot   hear  and\t decide\t the
\nobjections  and\t in the meantime the Governor of  Bihar,  as
\nrecommended  by\t the  Election Commission of  India,  issued
\nnotification dated 26.3.1996 fixing the schedule of election
\nprogramme.   On\t or  about 1.3.1996,  objections  were\talso
\npreferred  by one Dr.  Ram Padmadeo seeking deletion of\t the
\nnames  of 1625 ineligible electors from the electoral  roll.
\nOn   30.3.1996\t the\tAssistant   Electoral\tRegistration
\nOfficer-cum-District  Magistrate, Patna refused to  consider
\nthe  objection\tpetition filed by Dr.  Ram Padamdeo  on\t the
\nground\tthat the objection petition was not preferred in the
\nprescribed  proforma  and further there was not enough\ttime
\navailable  before  the date of filing of  nominations,\ti.e.
\n2.4.1996  to  hear  and\t dispose of  objections\t calling  in
\nquestion  the  inclusion  of as many as 1625  names  in\t the
\nelectoral  roll.   There were other objections filed  by  17
\npersons\t laying\t challenge to the inclusion of 384 names  of
\nelectors  in the electoral roll which too met with the\tsame
\nfate on 30.3.1996.  The election petitioner alleged that the
\nelection  was  vitiated by the improper reception  of  votes
\ncast  by ineligible persons and by non- compliance with\t the
\nprovisions  of the Constitution, the 1950 Act and rules\t and
\norders\trelevant  to  the election.   Such  allegations,  as
\nabovesaid, formed contents of paragraphs 15 to 42 along with
\nannexures  1 to 20 of the election petition.  The respondent
\nmoved  an application before the learned Designated Election
\nJudge  seeking striking out of the said paragraphs 15 to  42
\nalong  with  annexures 1 to 20 of the election petition\t and
\nsubmitting  that  the  commission of any  illegality  and\/or
\nirregularity  in  the preparation of the electoral roll\t was
\nbeyond\tthe  ambit and scope of Section 100 of the 1951\t Act
\nand  therefore the averments made in the said paragraphs  15
\nto 20 of the election petition along with the said annexures
\nwere  liable  to  be  struck  down  as\tirrelevant  and\t not
\nfurnishing  any\t cause of action to the appellant.   It\t was
\nprayed\tthat  the  election petition was also liable  to  be
\nsummarily dismissed as consequent upon striking out the part
\nof pleadings as above said, nothing survived for being tried
\nand adjudicated upon at the trial of the election petition.\n<\/p>\n
    The plea raised by the respondent has prevailed with the
\nlearned\t Designated  Election Judge.  He has held  that\t the
\npleadings  contained in paragraphs 15 to 42 of the  Election
\nPetition  read along with the annexures 1 to 20 were  liable
\nto  be\tstruck\tdown  under  order 6  Rule  16\tof  the\t CPC
\nconsequent  whereupon  no  cause  of  action  survived\t for
\nproceeding  with  the trial of the election  petition  under
\nSection\t 86  of\t the 1951 Act and hence the  same  was\talso
\nliable\tto be dismissed.  The aggrieved election  petitioner
\nhas filed this appeal under Section 116A of the 1951 Act.\n<\/p>\n
    The sole question arising for decision in this appeal is
\nwhether the averments made in the election petition made out@@
\n\tJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
\na  ground  for\tdeclaring  election to be  void\t within\t the@@
\nJJJJJJJJJJJJJJ
\nmeaning\t of  Section  100  of the 1951\tAct  obligating\t the
\nlearned\t Designated Election Judge to proceed with the trial
\nof the Election Petition instead of summarily dismissing the
\nsame.\n<\/p>\n
    Sub-section\t (1) of Section 100 of the 1951 Act provides
\nas under:- 100.\t Grounds for declaring election to be void.-
\n(1)  Subject  to the provisions of sub-section (2)  if\t[the
\nHigh Court] is of opinion –\n<\/p>\n
    (a)\t that  on  the\tdate  of  his  election\t a  returned
\ncandidate  was\tnot  qualified, or was disqualified,  to  be
\nchosen\tto fill the seat under the Constitution or this\t Act
\n[or  the  Government of Union Territories Act, 1963  920  of
\n19630];\t or<\/p>\n
    (b)\t that  any corrupt practice has been committed by  a
\nreturned  candidate  or his election agent or by  any  other
\nperson\twith  the  consent of a returned  candidate  or\t his
\nelection agent;\t or<\/p>\n
    (c)\t that  any nomination has been improperly  rejected;
\nor<\/p>\n
    (d)\t that  the result of the election, in so far  as  it
\nconcerns a returned candidate, has been materially affected-\n<\/p>\n
    (i) by the improper acceptance or any nomination, or<\/p>\n
    (ii)  by any corrupt practice committed in the interests
\nof  the\t returned  candidate  [by an agent  other  than\t his
\nelection agent], or<\/p>\n
    (iii) by the improper reception, refusal or rejection of
\nany vote or the reception of any vote which is void, or<\/p>\n
    (iv)  by  any non-compliance with the provisions of\t the
\nConstitution  or of this Act or of any rules or orders\tmade
\nunder this Act.\n<\/p>\n
    the\t High  Court  shall  declare  the  election  of\t the
\nreturned candidate to be void.\n<\/p>\n
    It\twas  conceded  by  the\t learned  counsel  for\t the
\nappellant,  as\twas  done  by the learned  counsel  for\t the
\nelection  petitioner before the learned Designated  Election
\nJudge, that the grounds canvassed by the election petitioner
\nfor  avoiding the election of the respondent were covered by
\nsub-clauses  (iii) and (iv) of clause (d) of sub-section (1)
\nof  Section  100 of the 1951 Act and it was by reference  to
\nthese two sub- clauses alone that the maintainability of the
\nelection petition was required to be decided by the Court.\n<\/p>\n
    Shri  P.S.\t Mishra, the learned senior counsel for\t the
\nappellant submitted that election of a returned candidate is
\nliable\tto be set aside if there has been improper reception
\nof  any\t vote  or the reception of any vote which  is  void.
\nWhat  has to be seen is whether a person not entitled to  be
\nenrolled  under the law as an elector has voted and if\tthat
\nbe  so\tthen it will be a case of improper reception of\t any
\nvote  or the reception of a void vote and it would not\tmake
\nany  difference if the inelligible person was enrolled as an
\nelector\t in the electoral list.\t It was further submitted by
\nShri Mishra that if a person is not qualified to be enrolled
\nas  a voter or is disqualified from voting and still casts a
\nvote taking advantage of his being enrolled in the electoral
\nlist  then the enrolment itself being in non-compliance with
\nthe provisions of the Constitution or an enactment, the case
\nwould  be  covered  by\tsub- clause(iv)\t of  clause  (d)  of
\nSub-section  (1)  of Section 100 of 1951 Act.  On a  further
\nproof of the fact that the result of the election insofar as
\nit  concerns the returned candidate was materially affected,
\nthe  election would be liable to be set aside.\tTo test\t the
\nvalidity  of the plea so put- forth and forcefully canvassed
\nwe  may\t proceed to notice the relevant\t constitutional\t and
\nstatutory provisions.\n<\/p>\n
    Article  326  of  the  Constitution is  founded  on\t the
\ndoctrine  of adult suffrage.  It provides that every  person
\nwho  is a citizen of India and who is not less than 18 years
\nof  age\t on such date as may be fixed in that behalf  by  or
\nunder any law made by the appropriate Legislature and is not
\notherwise  disqualified\t under the Constitution or  any\t law
\nmade  by  the  appropriate  Legislature\t on  the  ground  of
\nnon-residence,\tunsoundness  of\t mind, crime or\t corrupt  or
\nillegal\t practice,  shall be entitled to be registered as  a
\nvoter\tat   any  such\t election.   This  Article   clearly
\ncontemplates law being enacted by an appropriate Legislature
\nproviding  for qualifications and disqualifications  subject
\nto  which  a citizen of India not less than 18 years of\t age
\nshall  be entitled to be registered as a voter and  exercise
\nhis  right to franchise.  Article 327 provides for law being
\nmade  by  Parliament  subject  to   the\t provisions  of\t the
\nConstitution  with respect to all matters relating to or  in
\nconnection  with elections to either House of Parliament  or
\nto  the House or either House of the Legislature of a  State
\nwhich  law  may\t include provisions for the  preparation  of
\nelectoral rolls, the de-limitation of constituencies and all
\nother matters necessary for securing the due constitution of
\nsuch House or Houses.\n<\/p>\n
    The\t Representation of the People Act, 1951 was  enacted
\nto  provide  for the conduct of elections to the  Houses  of
\nParliament  and to the House or Houses of the Legislature of
\neach  State,  the qualifications and  disqualifications\t for
\nmembership  of those Houses, the corrupt practices and other
\noffences  at  or in connection with such elections  and\t the
\ndecision  of  doubts  and  disputes  arising  within  or  in
\nconnection  with such elections.  So far as the exercise  of
\nright  to franchise is concerned there are only two relevant
\nprovisions  in\tthis Act.  Clause (e) of sub-section (1)  of
\nSection\t 2 defines elector in relation to a constituency  to
\nmean a person whose name is entered in the electoral roll of
\nthat constituency for the time being in force and who is not
\nsubject to any of the disqualifications mentioned in Section
\n16  of the Representation of the People Act, 1950.   Section
\n62 provides as under:-\n<\/p>\n
    62.\t  Right\t to  vote – (1) No person who  is  not,\t and
\nexcept\tas expressly provided by this Act, every person\t who
\nis,  for the time being entered in the electoral roll of any
\nconstituency shall be entitled to vote in that constituency.\n<\/p>\n
    (2)\t No  person  shall  vote  at  an  election  in\t any
\nconstituency   if   he\t is   subject\t to   any   of\t the
\ndisqualifications   referred  to  in   section\t16  of\t the
\nRepresentation of the People Act, 1950 (43 of 1950).\n<\/p>\n
    (3)\t No person shall vote at a general election in\tmore
\nthan  one  constituency of the same class, and if  a  person
\nvotes  in more than one such constituency, his votes in\t all
\nsuch constituencies shall be void.\n<\/p>\n
    (4)\t No  person shall at any election vote in  the\tsame
\nconstituency  more than once, notwithstanding that his\tname
\nmay  have  been\t registered in the electoral roll  for\tthat
\nconstituency more that once, and if he does so vote, all his
\nvotes in that constituency shall be void.\n<\/p>\n
    (5)\t No  person  shall  vote at any election  if  he  is
\nconfined   in  a  prison,  whether   under  a  sentence\t  of
\nimprisonment  or  transportation or otherwise, or is in\t the
\nlawful custody of the police.\n<\/p>\n
    Provided that nothing in this sub-section shall apply to
\na person subjected to preventive detention under any law for
\nthe time being in force.\n<\/p>\n
    Section  62 can clearly be divided into two parts.\t One
\npart is sub-section (1), which is couched partly in positive
\nform  and  partly  in  the negative.  A person\twho  is\t not
\nentered\t in  the electoral roll of any constituency  is\t not
\nentitled  to  vote  in that constituency though\t he  may  be
\nqualified under the Constitution and the law to exercise the
\nright  to  franchise.  To be entitled to cast a\t ballot\t the
\nperson\tshould\tbe  entered in the electoral roll.   Once  a
\nperson\tis  so\tentered\t he  is entitled  to  vote  in\tthat
\nconstituency.\tThe  phrase  for the time being\t has  been
\nsignificantly and strategically cast into the framing of the
\nprovision  and\tqualifies  the expression  entered  in\tthe
\nelectoral roll of any constituency.  It gives the factum of
\nentry  in the electoral roll of any constituency a  decisive
\nrole  to  play\tfor  finding out whether he  is\t or  is\t not
\nentitled  to  vote in that constituency.  The other part  of
\nSection 62 consists of sub-sections (2) to (5).\t In spite of
\na  person having been entered into an electoral roll and  by
\nvirtue\tof such entry having been conferred with a right  to
\nvote,  such right may yet be defeated by existence of any of
\nthe   disqualifications\t  or   ineligibilities\tenacted\t  by
\nsub-sections (2) to (5).\n<\/p>\n
    The\t Representation of the People Act, 1950 was  enacted
\nto  provide for, inter alia, the qualifications of voters at
\nelection  to the House of the People and the Legislatures of
\nStates,\t the  preparation  of electoral rolls,\tand  matters
\nconnected  therewith  –\t the subjects which have  been\tleft
\nuntouched  by  the latter Act of 1951.\tElectoral rolls\t for
\nCouncil\t constituencies\t are prepared under part IV  of\t the
\n1950  Act which part now consists of only one section, i.e.,
\nSection 27, the relevant part whereof reads as under:-\n<\/p>\n
    27.\t   Preparation\tof  electoral\troll   for   Council
\nconstituencies.-  (1)  In this section, local  authorities
\nconstituency,  graduates  constituency\t and  teachers
\nconstituency  mean  a  constituency   for  the\tpurpose\t of
\nelections  to  a Legislative Council under  sub-clause\t(a),
\nsub-clause  (b) and sub-clause (c), respectively, of  clause
\n(3) of article 171.\n<\/p>\n
    (2) xxxx xxxx xxxx xxxx@@
\n\t\t       IIII<\/p>\n
    xxxx xxxx xxxx xxxx<\/p>\n
    (3)\t For  the  purpose of elections to  the\t Legislative
\nCouncil\t of a State in the graduates constituencies and the
\nteachers  constituencies,  the State  Government  concerned
\nmay,  with  the concurrence of the Election  Commission,  by
\nnotification  in  the  Official Gazette, specify –  (a)\t the
\nqualifications\twhich  shall be deemed to be  equivalent  to
\nthat  of  a  graduate of a university in  the  territory  of
\nIndia, and<\/p>\n
    (b)\t the  educational institutions within the State\t not
\nlower in standard that that of a secondary school.\n<\/p>\n
    [(4)  The  provisions of sections 15,16,18,21,22 and  23
\nshall  apply  in relation to graduates\tconstituencies\tand
\nteachers  constituencies  as  they  apply  in  relation\t to
\nassembly constituencies.]<\/p>\n
    (5) Subject to the foregoing provisions of this section,\n<\/p>\n
–\n<\/p>\n
    [(a)]  every  person who [is] ordinarily resident  in  a
\ngraduates  constituency\t and has, for at least three  years
\n[before\t the  qualifying date] been either a graduate  of  a
\nuniversity in the territory of India or in possession of any
\nof  the\t qualifications specified under clause (a)  of\tsub-
\nsection\t 3)  by\t the State Government  concerned,  shall  be
\nentitled  to  be registered in the electoral roll  for\tthat
\nconstituency;  and<\/p>\n
    ([b)]  every  person who [is] ordinarily resident  in  a
\nteachers  constituency,\t and  has,  within  the\t six  years
\nimmediately  [before the qualifying date for a total  period
\nof  at least three years, been engaged in teaching in any of
\nthe  educational institutions specified under clause (b)  of
\nsub-section  (3) by the State Government concerned shall  be
\nentitled  to  be registered in the electoral roll  for\tthat
\nconstituency.\n<\/p>\n
    [(6)]  For\tthe purpose of sub-sections (4) and (5)\t the
\nqualifying date shall be the 1st day of November of the year
\nin  which the preparation or revision of the electoral\troll
\nis commenced.]<\/p>\n
    Sub-section\t (4)  above-said  refers to a  few  sections
\nplaced\tin  part III entitled Electoral Rolls for  Assembly
\nConstituencies\tand  makes  them  applicable  to  teachers
\nconstituencies also.  Sections 16 and 19 provide as under:-\n<\/p>\n
    16.\t  Disqualifications for registration in an electoral
\nroll.  – (1) A person shall be disqualified for registration
\nin an electoral roll if he –\n<\/p>\n
    (a) is not a citizen of India;  or<\/p>\n
    (b)\t is  of unsound of mind and stands so declared by  a
\ncompetent court;  or<\/p>\n
    (c) is for the time being disqualified from voting under
\nthe  provisions of any law relating to corrupt practices and
\nother offences in connection with elections.\n<\/p>\n
    (2)\t The name of any person who becomes so\tdisqualified
\nafter  registration  shall  forthwith  be  struck  off\t the
\nelectoral roll in which it is included :\n<\/p>\n
    [Provided  that  the name of any person struck  off\t the
\nelectoral   roll   of  a  constituency\t by  reason   of   a
\ndisqualification  under clause (c) of sub-section (10  shall
\nforthwith   be\t reinstated   in     that   roll   if\tsuch
\ndisqualification  is,  during  the period such\troll  is  in
\nforce, removed under any law authorising such removal.]<\/p>\n
    [19.   Conditions  of  registration.  – Subject  to\t the
\nforegoing provisions of this Part, every person who –\n<\/p>\n
    (a)\t is  not  less than [eighteen years] of age  on\t the
\nqualifying date, and<\/p>\n
    (b) is ordinarily resident in a constituency.\n<\/p>\n
    Shall be entitled to be registered in the electoral roll
\nfor that constituency.]<\/p>\n
    Section 15 provides for an electoral roll being prepared
\nfor  every  constituency.  Section 18 restrains\t any  person@@
\n\t    JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
\nbeing  registered in more than one electoral roll.   Section@@
\nJJJJJJJJJJJJJJJJJJJJ
\n21  prescribes\tthe manner for preparation and\trevision  of
\nelectoral  rolls.  Correction of entries in electoral  rolls
\nis  provided  for by Section 22.  Section 23 prescribes\t for
\ninclusion   of\tnames  in  electoral   rolls  as  also\t for
\ntransposition  of  names from one electoral roll to  another
\none.\n<\/p>\n
    A  perusal of the above-said provisions leads to certain
\nirresistible  inferences.   Article 326 of the\tConstitution
\nhaving\trecognised  the doctrine of adult suffrage has\tlaid
\ndown   constitutional\tparameters   determinative  of\t the
\nqualifications\t  and\t disqualifications    relating\t  to
\nregistration  as a voter at any election.  The two Articles,
\ni.e.,\tArticle\t 326  and   Article  327  contemplate\tsuch
\nqualifications\tand  disqualifications being  provided\tfor,
\namongst\t other things, by the appropriate Legislature.\t The
\nfountain  source  of  the  1950 Act and\t 1951  Act  enacting
\nprovisions  on such subject are the said two Articles of the
\nConstitution.\tThe provisions of Section 16 of the 1950 Act
\nand  Section 62 of the 1951 Act read in juxtaposition go  to
\nshow  that  while  Section 16 of the 1950 Act  provides\t for
\ndisqualifications  for registration in an electoral  roll,
\n(qualifications\t having\t been  prescribed   by\tSection\t  27
\nthereof),  Sections  62 of the 1951 Act speaks of right\t to
\nvote  which  right is to be determined by reference to\tthe
\nelectoral  roll of the constituency prepared under the\t1950
\nAct.   The  eligibility for registration of  those  enrolled
\nhaving\tbeen tested by reference to Section 16 or Section 27
\nof  the\t Act,  as the case may be, and\tthe  electoral\troll
\nhaving\tbeen prepared, under the 1950 Act if a person is  or
\nbecomes\t subject to any of the disqualifications provided in
\nclauses\t (a)  (b) (c) of sub-section (1) of Section 16,\t two
\nconsequences  may follow.  His name may forthwith be  struck
\noff the electoral roll, in which the name is included, under
\nsub-section  (2) of Section 16 of the 1950 Act.\t Even if the
\nname  is  not so struck off yet the person  is\tdisqualified
\nfrom  exercising right to vote at the election by virtue  of
\nsub-section  (2)  of  Section  62  of  the  1951  Act.\t The
\nqualifications\tprescribed  for enrolment in  the  electoral
\nroll as provided by clause (b) of sub-section (5) of Section
\n27  of\tthe  1950  Act are :  (i) ordinary  residence  in  a
\nteachers  constituency, (ii) being engaged in the  relevant
\neducational institution for a total period of at least three
\nyears within the six years immediately before the qualifying
\ndate.\tThe  enquiry into availability of these\t eligibility
\nqualifications,\t under\tthe scheme of the 1950 Act is to  be
\nmade  at  the time of preparation of the electoral  roll  or
\nwhile  entering\t or  striking  out a name  in  or  from\t the
\nelectoral roll.\t Section 62 of the 1951 Act does not provide
\nthat  a\t person\t who is not qualified to be enrolled  as  an
\nelector\t in the electoral roll shall not be entitled to vote
\nat the election.  To put it briefly a disqualification under
\nSection 16 of the 1950 Act has a relevance for and a bearing
\non  the\t right to vote under Section 62 of the 1951 Act\t but
\nbeing  not  qualified  for enrolment in the  electoral\troll
\nunder  Section\t27 of the 1950 Act has no relevance  for  or
\nbearing on the right to vote at an election under Section 62
\nof  the\t 1951  Act.   That  is\tthe  distinction  between  a
\ndisqualification and not being qualified.\n<\/p>\n
    It\twill  be appropriate to take stock of the  available
\njudicial opinion on the issue at hand.\tWe will straightaway
\nproceed\t to  refer  to\ta  Constitution\t Bench\tdecision  in
\nHariprasad  Mulshanker\tTrivedi Vs.  V.B.  Raju and Ors.   –
\n1974  (1)  SCR\t548.  All the decided cases  of\t this  Court
\navailable  till then were noticed by the Constitution Bench.
\nThe  dispute arose out of an election to elect four  members
\nof  the Council of States from the State of Gujarat held  in
\nApril  1972.  The main ground urged in the election petition
\nfor declaring the election of the respondents 4 and 5 in the
\nelection  petition  void  was that they\t were  not  ordinary
\nresidents   in\tthe  area   covered  by\t any   Parliamentary
\nconstituency  in  the State of Gujarat and that their  names
\nhad  been  illegally  entered in the electoral roll  of\t the
\nrespective constituency in Gujarat and as such they were not
\nelectors  within  the meaning of Section 2 (1)(e)  of  the
\n1951  Act  and\tconsequently were also not  eligible  to  be
\ncandidates  in\tthe election.  The Constitution\t Bench\theld
\nthat  the question whether a person suffers from any of\t the
\ndisqualifications  specified  in Section 16 of the 1951\t Act
\ncan  always  be\t gone into by the Court trying\tan  election
\npetition  and the electoral roll was not conclusive or final
\nin  respect  of\t these matters but the ground taken  in\t the
\nelection petition to declare the election of the respondents
\n4  and\t5  void was not that they suffered from any  of\t the
\ndisqualifications mentioned in Section 16;  the ground taken
\nwas  that since the elected respondents were not  ordinarily
\nresident  in  any  of the  Parliamentary  constituencies  of
\nGujarat,  they\thad  not  fulfilled one\t of  the  conditions
\nnecessary  to be satisfied for registration in the electoral
\nroll.\t In  other  words,  the\t  ground  taken\t was  not  a
\ndisqualification  but not being qualified to be enrolled
\nas  an\telector.   The\tConstitution   Bench  also  drew   a
\ndistinction  between  lack  of\tjurisdiction  or  power\t and
\nerroneous exercise thereof, placing on record the difficulty
\nin formulating an exhaustive rule to tell when there is lack
\nof power and when there is an erroneous exercise of it.\t The
\nConstitution  Bench  concluded\tthat a wrong decision  on  a
\nquestion of ordinary residence for the purpose of entering a
\npersons\t name in the electoral roll cannot be treated as  a
\njurisdictional error which can be judicially reviewed either
\nin  a  Civil  Court  or before an  Election  Tribunal.\t The
\nConstitution Bench also held that the 1950 Act is a complete
\ncode  in  the  manner  of  preparation\tand  maintenance  of
\nelectoral  rolls.  The relief of enrolment, or striking\t out
\nthe  name of a person enrolled therein on the ground of\t his
\nlacking in qualifications conferring a right to be enrolled,
\nmust be adjudicated in the manner prescribed by the 1950 Act
\ninvoking  the  jurisdiction of the authorities\tcontemplated
\ntherein.   The\tConstitution Bench held that  non-compliance
\nwith  the provisions of Section 19 of the 1951 Act (which in
\nthe  case at hand is pari materia with Section 27 (5)(b)  of
\nthe  1950  Act)\t cannot furnish a ground  for  declaring  an
\nelection void.\n<\/p>\n
    In\tNripendra Bahadur Singh Vs.  Jai Ram Verma and\tOrs.\n<\/p>\n
–  AIR\t1977 SC 1992 the election of the returned  candidate
\nwas  challenged and sought to be set aside on the ground  of
\ninclusion  of certain electors in the electoral rolls though
\nthey  had ceased to be qualified from being so enrolled\t and
\nas  such  were\tnot  entitled to  vote\tnotwithstanding\t the
\npresence  of  their  names in the electoral rolls  and\tthat
\ntheir  participation in the election had materially affected
\nthe  result.   This Court, following the Constitution  Bench
\ndecision in Hariprasad Trivedis case (supra), held :\n<\/p>\n
    The finality of the electoral roll cannot be challenged
\nin  an election petition even if certain irregularities\t had
\ntaken  place in the preparation of the electoral roll or  if
\nsubsequent   disqualification  had  taken   place  and\t the
\nelectoral  roll had on that score not been corrected  before
\nthe  last hour of making nominations.  After that dead\tline
\nthe  electoral\troll of a constituency cannot be  interfered
\nwith  and  no one can go behind the entries except  for\t the
\npurpose\t of considering disqualification under Section 16 of
\nthe  1950  Act.\t In the case in question the  persons  whose
\nnames  were recorded in the electoral roll and\tparticipated
\nin  the voting were not disqualified under Section 16 of the
\n1950  Act.  That being the position it would have been wrong
\non the part of the Presiding Officer not to allow the voters
\nwhose  names  were  recorded in the electoral  roll  of\t the
\nconstituency to participate in the voting, even though their
\nnames  could  have  been  earlier at  the  appropriate\ttime
\nlegitimately excluded from the electoral roll.\tThese voters
\nare  electors within the meaning of Section 2 (1) (e) of the
\n1951  Act and were entitled to vote under Section 62 of\t the
\n1951 Act.\n<\/p>\n
    In\ta  democracy  and for that matter  in  an  election,
\nperennial  vigilance should be the watch-word for all.\t If,
\ntherefore,  notwithstanding  the  provisions   of  the\tlaw,
\nappropriate  action  was not taken at the appropriate  time,
\nthe  provisions\t of  the election law which have got  to  be
\nconstrued   strictly,  must  work   with   indifference\t  to
\nconsequences, immediate or mediate. [emphasis supplied]<\/p>\n
    The\t Court in Nripendra Bahadurs case also noticed\tthe
\nprovisions  of sub-section (3) of Section 23 of the 1950 Act
\nwhich  is  applicable  to  electoral rolls  in\trelation  to
\nteachers  constituencies  and provides that  no\t amendment,
\ntransposition  or deletion of any entry shall be made  under
\nSection\t 22 and no direction for the inclusion of a name  in
\nthe  electoral\troll of a constituency shall be given  under
\nSection 23 after the last date for making nominations for an
\nelection  in  that  constituency  or  in  the  Parliamentary
\nconstituency within which that constituency is comprised and
\nbefore\tthe completion of that election.  During the  course
\nof  its\t judgment  this Court has also\tobserved  that\tmere
\nremissness  of\tthe  officers in performing  their  duty  in
\npreparation  of the electoral rolls is not relevant for\t the
\npurpose\t of  determining the legality of an election in\t the
\nentire\tscheme\tof  the Act and the object  and\t purpose  of
\npreparation of electoral rolls under the 1950 Act.\n<\/p>\n
    A  plea for avoiding an election on a ground akin to the
\none  raised  in\t the  case  before   us\t came  up  for\t the
\nconsideration of a Constitution Bench of this Court in Laxmi
\nCharan\tSen  and Ors.  Vs.  A.K.M.  Hassan Uzzaman and\tOrs.\n<\/p>\n
-(1985)\t 4 SCC 689.  It was held:- Notwithstanding the fact
\nthat  the roll contains these errors and they have  remained
\nto  be corrected, or that the appeals in respect thereof are
\nstill\tpending,  the  Registration   Officer  is  under  an
\nobligation to publish the roll by virtue of Rule 22.\n<\/p>\n
    ..that  the\t fact that certain claims and  objections
\nare  not  finally disposed of, even assuming that  they\t are
\nfiled  in accordance with law, cannot arrest the process  of
\nelection to the Legislature.  The election has to be held on
\nthe  basis  of the electoral roll which is in force  on\t the
\nlast date for making nominations.\n<\/p>\n
    During the course of its judgment the Constitution Bench
\nhas  observed  that  election  laws  abhor  a  vacuum;\t the
\nelectoral rolls may contain errors and they may remain to be
\ncorrected  or the appeals in respect thereof may be pending,
\nthe  electoral roll effective for the ensuing election\tmust
\nachieve\t a  finality at a given point of time (such  as\t the
\nlast date prescribed for filing the nominations).  It has to
\nbe  remembered that right to contest an election, a right to
\nvote  and  a  right  to\t  object  to  an  ineligible  person
\nexercising  right  to  vote are all rights  and\t obligations
\ncreated\t by Statute.  They are not the rights in common law.
\nBringing  into existence Houses or Institutions\t responsible
\nfor  functioning of a democracy have a vital  constitutional
\nobjective  to  achieve\tas  they are so\t essential  for\t the
\nfunctioning of a democracy.  A breach of any statutory right
\nor  obligation\tshould\tnot come in the way of\tthe  process
\ndirected  towards fulfilling the high objective of  bringing
\ninto  existence\t of a House or Institution  contemplated  by
\nConstitution  as  enabling  democratic\tfunctioning  of\t the
\ncountry.\n<\/p>\n
    Two Full Bench decisions of two High Courts have come to
\nour  notice.  In Ghulam Mohiuddin Vs.  Election Tribunal for@@
\n     JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
\nTown Area Sakit and Anr.  – AIR 1959 Allahabad 357, Raghubar@@
\nJJJJ
\nDayal, J.  (as His Lordship then was) expressed the majority
\nopinion\t by  holding that a persons non-residence  for\tthe
\nprescribed  period  or not attaining the age of 21 years  is
\nnot his disqualification for registration but amounts to his
\nbeing not qualified to be registered;  so long as one is not
\nqualified no question of disqualification arises.  A vote is
\nnot  unlawful merely on account of the fact that the  person
\nhad no right to have his name entered in the electoral roll.
\nM.L.  Chaturvedi, J.  agreeing with Raghubar Dayal, J.\theld
\nthat the electoral roll is to be deemed final and conclusive
\nas  far\t as  the fulfilment of qualification of a  voter  is
\nconcerned but it is not to be deemed final and conclusive by
\nthe  Election  Tribunal\t so  far  as  the  disqualifications
\nattaching  to  such persons are concerned.   Chaturvedi,  J.
\nnoticed\t the  well-settled practice in England\thaving\tbeen
\nadopted\t in  the Representation of the People Act  and\theld
\nthat  an  entry in the electoral roll has to be taken to  be
\nconclusive  proof  of the fact that the person\tfulfils\t the
\nrequisitive  conditions\t as  to\t age and  residence  in\t the
\nConstituency;\tfinality  has been given to the decision  of
\nthe  officer preparing the roll insofar as the fulfilment of
\nconditions  of registration is concerned but it has not been
\nconsidered  desirable  to  extend the same finality  to\t the
\ndecision on the subject of disqualification as the latter is
\na more serious matter.\n<\/p>\n
    The Full Bench decision of Allahabad High Court has been
\nfollowed  by  the  Punjab & Haryana High Court in  Rool\t Lal
\nMehta  Vs.  Dhan Singh – 1967 (69) PunLR 618.  The  question
\narising for decision was whether an election petition can be
\nfiled  on the ground of the voter below the age of 21  years
\nhaving\tbeen allowed to cast vote at the election by  virtue
\nof  his being enrolled as an elector in the electoral  list.
\nThe Full Bench held that after the electoral rolls have been
\nfinalised  the\tvoting\tof  a person whose name\t is  on\t the
\nelectoral  roll\t cannot be challenged as being void  on\t the
\nground\tthat he was under 21 years of age on the  qualifying
\ndate  and resort cannot be had to Section 100 (1)(d)(iv)  of
\nthe  1951 Act to enable the dispute as to age being tried as
\nan issue by an Election Tribunal in an election petition.\n<\/p>\n
    We find ourselves in agreement with the law so stated by
\nthe  two  Full Benches in Ghulam Mohiuddin (supra) and\tRoop
\nLal Mehta (supra) and record our approval of the same.\n<\/p>\n
    One\t of  the  principles underlying the plenary  bar  on
\njudicial  proceedings in election matters created by Article
\n329(b)\tis the pre- emptory urgency of prompt engineering of
\nthe    whole   election\t    process   without\tintermediate
\ninterruptions  by  way of legal proceedings challenging\t the
\nsteps  and  stages  in\tbetween\t the  commencement  and\t the
\nconclusion.   (See Mohinder Singh Gill AIR 1978 SC 851, Para\n<\/p>\n
30)  The same principle underlies sub-section (3) of Section
\n23  of\t1950 Act.  The last date for making  nomination\t for
\nelections  in a constituency and the date of declaration  of
\nresult\tare the terminus a quo and terminus ad quem  between
\nwhich  the electoral rolls must remain untouched.  Amendment
\n(which will include inclusion), transposition or deletion of
\nentries\t  in  electoral\t rolls\tare   all  taboos  in\tthis
\ninterregnum.\n<\/p>\n
    It\tis  true that the Assistant  Electoral\tRegistration
\nOfficer-cum- District Magistrate, Patna was not justified in
\nsitting\t over the objections laying serious challenge to the
\nlegality  of  enrolment of a large number of voters  in\t the
\nelectoral  roll.  Such objections should have been  promptly
\ndealt with and disposed of.  Withholding of dealing with the
\nobjections  on the ground that the officer did not have time
\nenough\t available   at\t  his\tdisposal  was\thardly\t any
\njustification  for the inaction on the part of the  officer.
\nThe  failure  on the part of the officer to dispose  of\t the
\nobjections  has\t laid  to an allegation being  made  in\t the
\nelection  petition that the officer was obliging the  ruling
\nparty in the State of Bihar as it stood to gain by inclusion
\nof  the\t names of ineligible voters in the  electoral  roll.
\nSuch  delay  in\t disposal  of\tthe  objections\t has  to  be
\ndeprecated.   Preparation and maintenance of electoral rolls
\nis  an\tongoing\t process.   A  meaningful  democracy   means
\nparticipation  of  all eligible citizens in the exercise  of
\nright  to vote and exclusion of ineligible voters therefrom.
\nSuch goal achieved, the result of election would reflect the
\nwill  of the people.  Watchful and alert citizenry  assisted
\nby responsible and responsive bureaucracy entrusted with the
\ntask as to electoral rolls is needed to reach the said goal.
\nThe  need  to  hear and decide claims for  inclusion  in  or
\nexclusion  from\t electoral  rolls promptly  and\t objectively
\nhardly\tneeds  to be emphasised.  However, we  have  already
\nheld  this  could  not have been a ground for  avoiding\t the
\nelection and we leave the matter at that.\n<\/p>\n
    To sum up we are of the opinion that inclusion of person
\nor  persons in the electoral roll by an authority  empowered
\nin  law to prepare the electoral rolls though they were\t not
\nqualified  to be so enrolled cannot be a ground for  setting
\naside  an election of a returned candidate under  sub-clause\n<\/p>\n
(iii)  or  (iv) of clause (d) of sub-section (1) of  Section
\n100 of the Representation of the People Act, 1951.  A person
\nenrolled  in the electoral list by an authority empowered by
\nlaw  to\t prepare  an  electoral roll or to  include  a\tname
\ntherein is entitled to cast a vote unless disqualified under
\nsub-section  (2) to (5) of Section 62 of the  Representation
\nof the People Act, 1951.  A person enrolled in the electoral
\nroll  cannot  be excluded from exercising his right to\tcast
\nvote  on the ground that he did not satisfy the\t eligibility
\nrequirement  as\t laid  down in Section 19 or  27(5)  of\t the
\nRepresentation of the People Act, 1950.\n<\/p>\n
    The\t view taken by the learned Designated Election Judge
\nin  the\t judgment under appeal cannot be found\tfault  with.
\nThe  appeal is held liable to be dismissed and is  dismissed
\naccordingly.   The  respondent\thas chosen  not\t to  appear.
\nHence no order as to the costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shyamdeo Pd. Singh vs Nawal Kishore Yadav on 28 August, 2000 Author: R Lahoti Bench: Cji, R.C. Lahoti, K.G. Balakrishnan 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. L…I…T…….T…….T…….T…….T…….T…….T..J Pursuant to a Notification issued […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-157827","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShyamdeo Pd. 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