Kabul Singh Vs. Kundan Singh & Ors
[1969] INSC 177 (13 August 1969)
13/08/1969 HEGDE, K.S.
HEGDE, K.S.
RAY, A.N.
CITATION: 1970 AIR 340 1970 SCR (1) 845 1969
SCC (2) 452
CITATOR INFO :
F 1971 SC2123 (6) RF 1973 SC 717 (10) R 1973
SC2602 (19,29) RF 1977 SC1992 (16) R 1984 SC1911 (3) R 1986 SC 103 (3)
ACT:
Representation of the People Act, 1951
Elections--Section 23 sub-s. (3)--Inclusion of name in electoral roll after
last date for filing nomination-Section 23(3) if mandatory--Electoral roll,
finality of--Recriminatory petition, nature of.
HEADNOTE:
In the elections to the Punjab Legislative
Council from the local authorities constituency the appellant who was declared
elected secured one vote more than the first respondent. The first respondent
challenged the election of the appellant on the ground that the vote of H
should have been held to be void as his name was included in the electoral roll
after the last date for the filing of nomination in defiance of the provisions
of s. 23(3) of the Act. To this the appellant filed a recriminatory petition
contending that the votes of two other persons B and S also were void as their
names were included in the electoral roll after the last date for filing
nominations. He also alleged that the vote of another voter T was void as he
had become a government servant by the time the polling took place and
therefore was disqualified to be a member of any local board. The High Court
came to the conclusion that the votes of H, B and S were void and counting the
validity cast votes declared the first respondent elected. But when on scrutiny
it was found that of B and S one of them had actually cast his first preference
to the appellant he contended that as the first respondent had not challenged
the validity of those votes the trial court could not have excluded from
consideration the vote cast in his favour by one of those persons.
HELD: Section 23(3) takes away the power of
the electoral registration officer or the chief electoral officer to correct
the entries in the electoral rolls or to include new names in the electoral
'rolls of a constituency after the last date for making the nominations for
election in that constituency. It prohibits inclusion of any name in the
electoral roll after the prescribed date whether the application for inclusion
was made before or after that date. [848 G] Baidyanath Panjiar v. Sita Ram
Mahto, [1970] 1 S.C.R. 839.
followed.
(ii) The election petition and the
recriminatory petition are parts of one enquiry. As the validity off the three
votes had come up for consideration and as it was held that those votes were
void it necessarily followed that the votes had to be excluded in determining
the result of the election. The fact that the first respondent did not
challenge the validity of those votes was immaterial in the circumstances of
the case. [848 D] (iii) There is no provision in the Act which disqualified T
from voting and the question whether a particular vote was a valid vote or not
has to be decided solely on the basis of the provisions of the Act. In view of
s. 30 of the 1950 Act the entries found in the electoral roll are final and
civil courts have no jurisdiction to.
entertain or adjudicate upon any question
whether any person is or is not entitled to register himself in the electoral
roll. [850 E] 846 B.M. Ramaswamy v.B.M. Krishnamurthy, [1963] 3 S.C.R.
479, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1359 1969.
Appeal under s. 116-A of the Representation
of the People Act, 1951 from the judgment and order dated March 20, 1969 of the
Punjab and Haryana High Court in Election Petition No. 1 of 1968.
Harder Singh, for the appellant.
R.K. Garg, S.C. Agarwala, D.P. Singh and
Sumitra Chakravarti for respondent No. 1.
The Judgment of the Court was delivered by Hegde,
J. This appeal under s. 116A of the Representation of People Act, 1951 (to be
shortly referred to hereinafter as the Act) is directed against the decision of
the High Court of Punjab and Haryana in Election Petition No. 1 of 1968 on its
file. In that election petition, Kundan Singh, the 1st respondent to this
appeal challenged the validity of the returning officer's declaration that the
appellant has been duly elected from the Hoshiarpur Local Authorities
Constituency to the Punjab Legislative Council in the election held in April,
1968. The High Court came to the conclusion that some of the votes polled in
that election were invalid votes ,and if the valid votes alone are taken into
consideration, as it should have been, then the 1st respondent is entitled to
be declared elected. It accordingly set aside the declaration made in favour of
the appellant and declared the 1st respondent as having been duly elected.
We may now briefly state the material facts.
In March 1968, the Hoshiarpur Local Authorities Constituency was called upon to
elect one member to the Punjab Legislative Council. The election calendar was
as follows:
(1) The last date for filing nomination
papers --12-3-1968.
(2) Date of scrutiny of the nomination papers
13-3-1968.
(3) The last date for withdrawal of
candidatures 16-3-1968.
(4) Date of polling-7-4-1968.
(5) Date of counting and declaration of
result 8-4-1968.
847 In that election, as many as five
candidates contested.
They are the appellant and the respondents
herein. On April 8, 1968, the returning officer after counting the votes cast
declared the appellant to be the successful candidate as he had secured one
vote more than the 1st respondent. The 1st respondent challenged that
declaration in the aforementioned election petition on various grounds of
which, at present, we are only concerned with one viz. that the vote of Hari
Singh should have been held to be a void vote as his name was included in the
electoral roll on April 5, 1968 i.e. just two days before the date of polling.
In his. turn the appellant filed a recriminatory petition contending inter alia
that the vote of Tarsem Singh was void as by the time the polling took place,
he had become a government servant and the votes of two. other persons namely
Harjinder Singh and Balwant Singh were void as their names were included in the
electoral roll after the last date for filing nominations for the election.
Other grounds taken in the recriminatory petition are not relevant for our
present purpose. They have not been pressed before us.
The election petition came up for trial
before Mahajan, J. The learned judge submitted the following question to a Full
Bench for decision:
"Whether allegation in para 4(a)
pertaining to the vote of Hari Singh is correct and the vote was void and was
polled in favour of respondent No. 1 in violation of the Rules and has.
materially affected the result of the election of respondent No. 1".
The Full Bench by majority came to. the
conclusion that the vote of Hari Singh was void as his name was included in the
electoral roll of the constituency after the last date for making nominations
for the election in that constituency.
Thereafter the case was sent back to Mahajan,
J. for deciding the issues left undecided. On the basis of the opinion
expressed by the Full Bench, the learned judge came to the conclusion that the
votes of Hari Singh, Harjinder Singh and Balwant Singh were void votes.
Consequently he recounted the votes validly cast and came to the conclusion
that the 1 st respondent had been duly elected. He gave a declaration to that
effect.
As seen earlier, the main contention in this
appeal relates to the true effect of sub-s. (3 ) of s. 23 of the Representation
of People Act, 1950 (to be hereinafter referred to as "the 1950 Act")
which prohibits the deletion of any entry or inclusion of any name in the
electoral roll of a constituency after the last date for making nominations for
an election in that constituency and before the completion of that election. We
have considered the scope of that provision in Baidyanath Panliar v. Sitaram
Mahto and Ors. (1) in (1) [1970] 1 S.C.R. 839.
L15 Sup. CI/69--10 848 which we have
delivered judgment just now. In view of that decision, the view taken by the
majority of the Full Bench must be held to be correct.
Evidently under an erroneous impression that
Harjinder Singh and Balwant Singh had voted against him, the appellant had
contended in his recriminatory petition that their votes were invalid. But on
scrutiny it was found that one of them had given his first preference to him.
Now it is contended on his behalf that as the 1st respondent had not challenged
the validity of those votes, the trial court could not have excluded from
consideration the vote cast in his favour by one of those persons. This is an
untenable contention. The votes of Harjinder Singh and Balwant Singh have been
rejected on the ground that their names were included in the electoral roll in
defiance of the mandate given under s. 23 (3) of the 1950 Act. What applies to.
Hari Singh equally applies to Harjinder Singh and Balwant Singh. The fact that
the 1st respondent did not challenge the validity of those votes is immaterial
in the circumstances of this case. The election petition and the recriminatory
petition were parts of one enquiry. As the validity of these three votes had
come up for consideration and as it has been held that those votes are void
votes, it necessarily ,follows that those votes must be excluded from
consideration in determining the result of the election.
Another contention urged by Shri Harder Singh
is that only the votes of those electors who had applied for the inclusion of
their names in the electoral roll after the period mentioned in s. 23(3) of the
1950 Act can be held to be void; as the person who cast his vote in favour of
the appellant had applied for inclusion of his name some days before the last
date for making nominations, the inclusion of his name in the roll after that
date will not make his vote void. in support of his contention, he placed tellance
on the decision of the Patna High Court in Ramswaroap Prasad Yadav v. Jagat
Kishore Prasad Narain Singh(1). The ratio of that decision has no application
to the facts of the present case. That decision was rendered before sub-s. (3)
of s. 23 of the 1950 Act was incorporated into the 1951 Act. The mandate of
that provision is plain and unambiguous. It prohibits inclusion of any name in
the electoral roll after the prescribed date whether the application for
inclusion was made before or after that date.
The only other contention that remains to be
considered is that the High Court should have held that the vote of Tarsem
Singh is invalid. It is not disputed that Tarsem Singh's name finds place in
the electoral roll of the constituency but the argument was that as he had
taken up government service subsequent to the inclusion of his name in the
electoral roll, he became disqualified to be a (1) XVII E.L.R., 110.
849 member of any local board and therefore
he was not entitled to vote in the elections This contention cannot be upheld.
Section 62 of the Act provides thus :
"62(1). No person who is not, and except
as expressly provided by this Act, every person who is, for the time being
entered in the electoral roll of any constituency shall be entitled to vote in
that constituency.
(2) No person shall vote at an election in
any constituency if he is subject to any of the disqualifications referred to
in section 16 of the Representation of the People Act, 1950.
(3) No person shall vote at a general election
in more than one constituency of the same class, and if a person votes in more
than one such constituency, his votes in all such constituencies shall be void.
(4) No person shall at any election vote in
the same constituency more than once, notwithstanding that his name may have
been registered in the electoral roll for that constituency more than once, and
if he does so vote, all his votes in that constituency shall be void.
(5) No person shall vote at any election if
he is confined in a prison, whether under a sentence of imprisonment or
transportation or otherwise, or is in the lawful custody of the police :
Provided that nothing in this sub-section
shall apply to a person subjected to preventive detention under any law for the
time being in force." In view of those -provisions read with s. 23(3) of
the 1950 Act every person who is for the time being entered in the electoral
roll of a constituency as it stood on the last date for making nominations for
an election in that constituency is entitled to vote unless it is shown that he
is prohibited by any of the provisions of the Act from exercising his vote. The
prohibitions contained in sub-ss.
3, 4 and 5 of S. 62 of the Act do not apply
to the case of Tarsem Singh. Therefore we have to see whether the prohibition
contained in sub-s. (2) applied to his case.
That sub-section says that no person shall
vote at an election in any constituency if he is subject to any of the
disqualifications referred to in S. 16 of the 1950 Act.
This takes us to S. 16 of the 1950 Act. It
reads thus:
"16(1) A person shall be disqualified
for registration in an electoral roll if he(a) is not a citizen of India; or
850 (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 to corrupt practices and other offences in connection with elections.
(2) The name of any person who becomes so
disqualified after registration shall forthwith be struck off the electoral
roll in which it is included :
Provided that the name of any person struck
off the electoral roll of a constituency by reason of a disqualification under
clause (c) of sub-section (1) shall forthwith be re-instated in that roll if
such disqualification is, during the period such roll is in force, removed
under any law authorizing such removal." It is not the case of the
appellant that Tarsem Singh had incurred any of the disqualifications mentioned
therein. No other provision of law in the Act or in any other law was brought
to our notice disqualifying him from exercising his vote. The right to vote
being purely a statutory right, the validity of any vote has to be examined on
the basis of the provisions of the Act. We cannot travel outside those
provisions to find out whether a particular vote was a valid vote or not. In
view of s. 30 of the 1950 Act, civil courts have no _jurisdiction to entertain
or adjudicate upon any question whether any person is or is not entitled to
register himself in the electoral roll in a constituency or to question the
illegality of the action taken by or under the authority of the electoral
registration officer or any decision given by any authority appointed under
that Act for the revision of any such roll. Part III of the 1950 Act deals with
the preparation of rolls in a constituency. The provisions contained therein
prescribe the qualifications for being registered as a voter (S. 19),
disqualifications which disentitle a person from being registered as a voter
(S. 16), revision of the rolls (s. 21), correction of entries in the electoral
rolls (s. 22), inclusion of the names in the electoral rolls (S. 23), appeals
against orders passed by the concerned authorities under ss. 22 and 23 (S. 24).
Sections 14 to 24 of the 1950 Act are integrated provisions. They form a
complete code by themselves in the matter of preparation and maintenance of
electoral rolls.
It is clear from those provisions that the
entries found in the electoral roll are final and they are not open to
challenge either before a civil court or before a tribunal which considers the
validity of any election. In B. M. Ramaswamy v. B. -M. Krishnamurthy and Ors.
(1) this Court (1) [1963] 3 S.C.R. 479.
851 came to. the conclusion that the finality
of the electoral roll cannot be challenged in a proceeding challenging the
validity of the election.
For the reasons mentioned above this appeal
fails and the same is dismissed with costs.
Y. P Appeal dismissed.
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