c PAMPAKAVI RAYAPPA BELAGALI v. B. D. JATI1 & OTHERS October 15, 1970 [J.C. SHAH, K, S. HEGDE AND A. N. GROVER, JJ.) Representation of the People A_ct VTEV-Section 100(1) (d)-Election petition-Trial of-Whether there is jurisdictiOn o question validity of ent~y of name in Electoral Roll-Representation of the People Act 1950 and ules nzade thert;under-1/ only provsions under which such validity may be qufstioned.
By an election petition two electors of the constituency, the appellants, challenged the election of the first respondent to the Mysore Legislative Assembly in 1967 from the famkhandi constituency.
It was alleged inter dia that the first respondent had ceased to be a person ordinarily resident within the constituency during the period relevant to the 1967 General Elections, and the validity of the entry of his name on the Electoral Roll was questioned; it was claimed that he was not therefore qualified to stand for election from the constituency.
The petition also contained allegations of corrupt practices including misuse by certain Police Officers of their position to prevent voters from voting freely, and mal-practices by the Presiding Officer at the time of polling, etc. After framing an issue on the question and taking the view that the Court had jurisdiction to determine the validity of the inclusion of the first respondent's name as an elector .on the Electoral Roll, the trial judge held on a consideration of the evidence, that the petitioners had failed to prove he first respondent was not an elector and was not qualified to •tand for election from the constituency.
The High Court also rejected the allegations of corrupt practices and dismissed the petition. On appeal to this Court, HELD : (i) Under section 30 of the Representation of the People Act, 1950, no civil court shall have jurisdiction to entertain or adjudicate upon any question whether any person .is or is not entitled fdr registration in an Electoral Roll for a constituency. There are elaborate rules which have been promulgated for preparation and revision of the Electoral Rolls, namely, Electors' Rules 1960.
The conditions about being ordinarily resident in a constituency for the purpose of registration are meant for that purpose alone and have nothing lo do with the disqualifications for registration which are prescribed by s. 16 of the Act of 1950, which alone are relevant to the definition of an "elector" as given in s .. 2(1) (e) of the Act of 195 I. The entire scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an Electoral Roll of a constituency can only be challenged in accordance with the machinery provided by it and not in any other manner or before any other forum unless some question of violation of the provisions of the Constitution is involved.
The plresent case did not alsQ' involve any violation or infringement of Article 173 or any other provision of the Constitution. [615 HJ The question whether respondent No. I was ordinarily re·ident in Jamkhandi constituency during the material period and was ' ·titled to be registered in the Electoral Roll could not therefore be the subject matter of enquiry except in accordance with the provisions of the Act of 1950.
Under s. 100(1) (d) an election can be declared void only if the result of the election, in so far as it concerns a returned candidate, has been materially affected by any non-compliance with the provisions of the Constitution or of the Act of 1951 or of any rules or orders made thereunder.
Nothing could be clearer than the ambit of this provision. It does not entitle the court in an election petition to set aside any elec· tion on the ground of non-compliance with the provisions of the Act of 1950 or of any rules made hereunde with the exception of s. 16. [617 El
Durga Shankar Mehta v. Thakur Raglmrai ·Singh & Others, [1955] 1 S.C.R. 267; K. Sriramulu v. K. Deriah (1965) 1 Mys. L. J. 676; Roop Lal Mehta v. Dilan Singh and Others (1967) P.L.R. 618; referred to. On the evidence, no reasons were shown for this court to differ from the findings of t.he Trial Judge on the allegations of corrupt practices. Meghra; Patodis v. R. K. Bir/a & Others; Civil Appeal No. 1094(~~ dated 10-9-1970; referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2394 of 1968. c Appeal under s. ll 6A of the Representatiop of the People ·,_ Act, 1951 .from the judgment and order dated July 24, 1968 of the Mysore High Court in Election Petition No. 9 of 1967.
B. S. Patil, Vineet Kumar and Shyalnala Pappu, for the appel- lant. A. V. All1al and M. Veerappa, for respondent No, 1. The Judgment of the Court was delivered by GROVER, J.-This _is an appeal from a judgment of the
Mysore Higlr Court dismissing an election petition which had been filed by two electors challenging the election of respondent No. 1 B. D. Jatti from the Jamkhandi Constituency at the
General Elections held in 1967. The last date for filing of nomination papers was January 19, 1967. The polling took place on February 2, 1967 and the result was declared on February 22, 1967. '.lhe only contesting candidates were respondent No. 1 and respondent No. 2 M. M. Shivappa. Respondent No, 1 secured 24,578 votes whereas res- pondent No. 2 got 21,261 votes. The election petition was filed P.R. BELAGALI v. B. D. JATTI (Grover, J.)
on April 6, 1967 by I. S. Ghattarki and P. R. Belagali who were electors in the Jamkhandi Constituency. Each of them had acted as an election agent of respondent No. 2. Petitioner No. 1 Ghattarki was his election agent from February 10, 1967 till the last date of the election and petitioner No. 2 Belagali acted as an election agent from January 19, 1967 to February 4, 1967. The trial of the petition commenced on Decerr.ber 11, 1967 and after certain witnesses had been examined on February 1, 1967 petitioner No. 1, Ghattarki, made an application praying for permission to withdraw from the petition "for all purposes". Petitioner No. 2 objected to his withdrawal. The learned judge dismissed the application of petitioner No. 1 on the ground that s. 110(1) of the Representation of the People Act, 1951, hcrein- after oalled the "Act", dil 111ot permit withdrawal by one petitioner without the consent of his co-petitioner.
It has, however, been noted by the learned judge that both the petitioners continued to be represented by one counsel Shri B. S. Patil. It may be mentioned at this stage that the election petition is a very long document and that the evidence which has been prod~ by the parties is also volum,inuous.
The judgment of the learned judge consists of 227 printed pa~. A number of . issues were framed but the controversy before us has been cOafined only to certain points. The first question which falls for consideration arises out of issue No. 1 which consi~ts of three clauses and was framed in the follO\\ing terms :-
"1 (a) Do the petitioners prove that jie 1st respon- dent was not an elector at all and therefore not qualified to stand for election ? (b) Are the petitioners precluded from questioning
the validity of the entry of the name of the 1st respondent as elector in the Electoral Roll relat- ing to 1 amkhandi Constituency ? ( c) Has this Court no jurisdiction to go into the said
question of validity ?" It was held by the learned trial judge that the petitioners (in the election petition) were not precluded from questioning the validity of the entry of the name of respondent No. 1 as an elector in the Electoral Roll relating to 1 amkhandi Constituency and that the court had the jurisdiction to go into that question. It was, how- ever, found on a consideration of the evidence tbat the petitioners had failed to prove that respondent No. 1 was not an elector and Jf8S not qualified to stand for election to a seat in the
Mysore Legislative assembly from Jamkhandi constituency. 12-L436SupCIJ71 ·614 [1971) 2 S.C.R. If the view of the trial judge that the court had the jurisdiction in an election petition to go into the question of the validity of an entry in an Electoral Roll is erroneous and if the court was pre- cluded from deciding this matter it will be altogether unnecessary to consider the evidence led for the purpose of clause (a) of issue No. l.
The principal allegatioss of the petitioners on issue No. 1 (a) were that respondent No. 1 had ceased to be a person ordinarily resident within the constituency of Jamkhandi during the period relevant to the l 967 General Elections. It was further asserted that by Jong stay in the city of Bang11lore the name of respoadent No. l had been entered in the Electoral Roll relating to the muni- cipal [irca of th.at city and that respondent No. 1 with the object of getting his name entered in the Roll of Jamkhandi Constituency had either got his name deleted from the Bangalore Roll or had tried to get it changed from that Roll to the Roll of Jamkhandi Conslituency.
In order to decide the jurisdiction and powers of the court trying an election petition under the provisions of the Act to deter- mine the validity or legality of an entry in an Electoral Roll we shall have to look at the relevant provisions of the Act.
The Representation of the People Act J.950, to be called the HAot ot 1950" and the Constitution. Part II of the Act deals with the qualifications and disqualifications for Membership of Parliament and State Legislature.
Section 5 ( c) is as follows : 'A person shall not be qualified to be chosen to fill a seat in the legislative assembly of a State unless. (a) ……………………… . (b) ……………………… .
I c) in the case of any other seat he is an elector for any Assembly constituency in that State." The word "elector" is defined bys. 2(1)(e) to mean in relation c to a constituency a person whose name is entered in the Electoral Roll of th;it Constituency for the time being in force and who i~ not subject to any of the disqualifications mentioned in s. 16 of the Act of 1950. Chapter III of the Act contains disqualifications for Membership of Parliament and State Legislatures. According to s. 7 (b) "disqualified" means disqualified for being chosen as and for being a Member of either House of Parliament or of the Legis- II.
lative Assembly etc. Sections 8 to 11 give the disqualifications on conviction for certain offences, for commission of corrupt practices and other matters which need not be noticed. The position under c
p p. R. BELAGALI v. B. D. JATTI (Grover, l.) the Act, therefore, is that in order to stand for election to a legisla- tive assembly of a State a person .must be an elector for any assem- bly constituency in that State and he must not be subject to any of the disqualifications mentioned in s. 16 of the Act of 1950 or the disqualifications given in Chapter III of the Act. The Act of 1950 was meant to provide for the allocation of seats and the delimita- tion of constituencies for the purpose of elections to the House of the People and the legislatures_ of States, the qualifications of Yoters at such elections, the preparation of Electoral Rolls_ ……… . and matters connected therewith.
Part Ill thereof contains provisions for Electoral Rolls for assembly constituencies. According to s. 15 for every constituency there shall be an Electoral Roll which shall be prepared in accor- dance with the provisions of the Act of 1950 under the superinten- dence, direction and control of the Election Commission. Se.:tion 16 is in these tem1s :-
S. 16. "Disqualifications for registration in an electoral fl':l.- (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 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 t0 corrupt practices. and other offences in con-
nection with elections. ( 2) The name of any person who becomes so dis- qualified after registration shall forthwith be struck off the electoral roll in which it is in- cluded : Provided that .. , …….. , ……… , … , ''
Section 19 gives the conditions of registration in the Ele.:.:or11l Roil. It provides that every person who is not less than 21 year< of age on the qnalifiying date und is ordinarily re1ident in a ~on; tituency shall be entitled to be registered in the Electoral Roil for that constituency.
Section 20 deals with the meaning of "ordi– narily resident", The preparation and revision of Electoral Roll has to be niade in accordance with s. 21 and the correctic·1 of entries' is pro~ided by ~. 2_2.
Section 24 contains a provisi0~ for an appeal which can be hied to !he Chief Electoral Offi :er from any order of t11e E.Ic~toral Registration Officer under s. 22 or-"· 23. Under s. 30 no c1v1! court 'hall ha\'e jurisdiction to entenain or adjudicate upon any question whether any person is or is not entitled for registration in an Electoral Roll for a constituency. There are elaborate rules which have been promulgated for pre- paration and revision of the Electoral .Rolls, namely, Electors' Rules 1960. It may be noted that the conditions about being ordinarily resident in a constituency for the purpose of registra- tion are meant for that purpose alone and have nothing to do with the disqualifications for registration which are prescribed by s. 16 of the Act of 1950 which alone are relevant to the definition of an "elector" as given in s. 2 ( 1 )( e) of the Act. The entire scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an Electoral Roll of a constituency can only be challenged in accordance with the machinery pro- vided by it and not in any other manner or before any other forum unless some question of violation of the provisions of the Constitu- tion is involved.
Article 17 3 of the Constitution relates to qualifications for membership of the State legislature. It reads :- Art. 173 "A person shall not be qualified to be chO'ien to fill a seat in the Legislature of a State unless he-
(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose.in
the Third Scbedule; (b) is, in the case of a seat in the Legislative Assem .. b!y, not less than twenty-five years of age and, in the case of a seat in the Legislative . Council, not less than thirty years of age; and
c ( c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament." 'I:he qualifications, as mentioned previously, have been prescribed bys. 5 of the Act. Condition (b) ins. 19 of the Act of 1950 of being ordinarily resident in a constituency finds no place in any of the provisions of the Act or in Art.
173 of the Constitution. The decision of this Court in Durga Shankar Mehta v. Thakur Raghuraj Singh & Others(1) involved non-compliance with the provisions of clause (b) of Art. 173 and in case of a candidate who was constitutionally incapable of being returned as a member it was held that the Election Tribunal could declare his election to be void by applying sub-s. (2) ( c) of s. 100 of the Act.
The present case is clearly not of that kind and no violation or in- (1) [1955] l S.C.R. 267. c p, R. BELAGALI v. B. D. JATTI (Grover, 1.) fringe:ment of any provision of Art. 173 has been or could be
established. The other provisions relating to election are contained in Part XV of the Constitution. Article 324 deals with the superinten- dence, directio_n and control of elections which are vested in the Election Commission. Article 3 25 declares that no person shall be ineligible for inclusion in an Electoral Roll on account only of religion, race, caste, sex or any of them. Article 326 says that the elections to the House of the People and the Legislative Assem- blies of States shall be on the basis of adult franchise.
Article 327 gives power to the Parliament to make provisions with respect to elections to Legislatures. Article 329 bars the interference of courts in electoral matters. By virtue of that Article no election shall be called in question except by an election petition. It is abundantly clear that in the present Rise the question whether respondent No.
1 was ordinarily resident in J amkhandi consti- tuency during the material period and was entitled to be registered in the Electoral Roll could not be the subject matter of enquiry except in accordance with the provisions of the Act of 1950. The grounds on which the election can be declared to be void under the Act are set out in s. 100 of the Act. Clause ( d) is "that the result of the election, in so far as it concerns a returned candidate, has been materially affected-(i) ………….. (ii) ……….. . (iii). . . . . . . . . . . . (iv) by any non-compliance with the pro· visions of the Constitution or of this Act or of any rules or orders made under this Act." Nothing could be clearer than the ambit of this provision. It does not entitle the court in an election peti- tion to set aside any election on the ground of non-compliance with the provisions of the Act Of 1950 or of any rules made there- under, with the exception of s. 16.
The learned trial judge does not appear to have fully ond properly appreciated the correct ratio and true detennination of the points involved.in Durga Shanker Melita's(') case. The di~
tinction is too obvious to bear repetition. It seems that a Bench decision of the-Mysore High Court in K. Sriramulu v. K. Deviah(2) was distinguished without any justification by the learned judge. It-was clearly laid therein that in an election petition the correctness of the Electoral Roll cannot be gone into.
The <!ecision of a Full bench of the Punjab and Haryana High Court in Roop Lal Mehta v. Dhan Singh & Others(') about the finality of the Electoral Roll was also not noticed. In this view of the matter the evidence relating to issue No. I (a) becomes wholly irrelevant and redundant. The decision on that issue in favour of respondent No.· I, is, however, affinned.
(l) [1965] IS. C. R. %7: 12) !1965) I Mys. L. J, 676. (3) (1967) P. LR. 618. {i 18 [1971 J 2 S.C.R. LHis Lordship next considered the evidence in respect of the allegations of corrupt practice and then proceeded :]
In conclusion it may be observed that the impression left by the facts and circumstances of this case on our mind is that the authorities concerned in the Mysore State were not careful or dis- creet enough in posting Hasbi for the second time to Jamkhandi in July 1966 when it was known that the relations between him and respondent No. 2 had been very unhappy in the past and by which time it could also be foreseen and appears to be known that there would be another contest between respondent No. 1 and respondent No. 2 who had been fighting elections since 1952. Similarly with regard to Kallur it would have been a wise step to transfer him before the elections from the area in which J arn- khandi is situate because he had also figured similarly in the pre- vious oontest between the two respondents. Free and fair elections are the very foundation of democratic institutions and just as it is said that justice must not only be done but must also seen to be done; similarly elections should not only be fairly and properly held but shoL1ld also seem to be so conducted as to inspire·confi- .dence in the minds of the electors that everything has been above board and has been done to eruure free elections. It will be a sad day in the history of our country when the police and the government officers create even an impression that they are interfer- ing for the benefit of one or the other candidate. This is parti- cularly so if a candidate is holding an important position or assign- ment like respondent No. 1, who, at the material time was a Minister in the State.
The appeal fa'.ils and is dismissed. In view of all the facts and circumstance> of the case we make no order as to costs in this Court. R.K.P.S. Appeal dismissed. c