Baidyanath Panjiar Vs. Sitaram Mahto
& Ors  INSC 178 (13 August 1969)
13/08/1969 HEGDE, K.S.
CITATION: 1970 AIR 314 1970 SCR (1) 839 1969
SCC (2) 447
RF 1971 SC2123 (9) E 1973 SC2602
(18,19,20,21,27) RF 1977 SC1992 (15) RF 1977 SC2171 (18)
Representation of the People Act, 1950
Elections- Section 22, sub-s. (3), s. 27(2)--Inclusion of names in electoral
roll after last date of filing nomination--Validity of votes cast--Section
22(3) if mandatory.
Sub-section (3) of s. 23 provides that no
direction for the inclusion of name in the electoral roll of a constituency
shall be given after the last date for making nomination for an election in
that constituency and before the completion of that election.
The appellant's election to the Bihar
Legislative Council was challenged on the ground that some of the votes cast in
his favour were not valid because the names of the voters were included in the
electoral roll after the last date for filing nomination. The High Court set
aside the election and declared the second respondent elected since on counting
the validly cast votes the second respondent secured more votes than the
On the question whether it was within the
competence of the electoral registration officer to amend the electoral rolls
after the last date for making the nomination was over,
HELD: The legislative mandate like the one
embodied in s. 23 sub-s. (3) must be considered as mandatory not merely because
of the language employed in that sub- section but also in view of the purpose
behind the provision. The sub-section does not deal with any mode or procedure
in the matter off registering the voters. It interdicts the concerned officers
from interfering with the electoral rolls under the prescribed circumstances.
It puts a stop to the power conferred on them. Therefore it is not a question
of irregular exercise of power but a lack of power. [842 D.F.] There is no
conflict between sub-s.. (2) of s. 23 and subs. (2) of s. 27 because a fair
reading of the various clauses in s. 27(2) will make it clear that it is the
electoral roll of a constituency as it stood on the last date for making the
nominations for an election in that constituency that is to be considered final
for the purpose of that election. [842 H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 25 of 1969.
Appeal under s. 116-A of the Representation
of the People Act, 1951 from the judgment and order dated December 11, 1968 of
the Patna High Court in Election Petition No. 4 of 1968.
D. Goburdhun, for the appellant.
Birendra Prasad Sinha, S.K. Bagga, Harder
Singh and S.
Bagga, for respondent No. 1.
Harder Singh, for respondents Nos. 2 and 3.
840 The Judgment of the Court was delivered
by Hegde, J. The principal question raised in this appeal under s. 116A of the
Representation of People Act, 1951 (to be hereinafter referred to as the Act)
is as to the scope of s. 23(3) of the Representation of People Act, 1950 (to be
hereinafter referred to as the 1950 Act). A few subsidiary contentions have
also been canvassed. They will be considered at the appropriate stage.
The election petition from which this appeal
arises relates to the Darbhanga Local Authorities Constituency of the Bihar
Legislative Council. The calendar for the election for that constituency was as
1. Last date for filing nomination papers
2. Date of scrutiny of nomination papers
3. Last date for withdrawal of candidatures
4. Date of Poll 28-4-1968.
5. Date of declaration of result 29-4-1968.
Originally five candidates submitted their
nomination for the election in question. On scrutiny all of them were held to
have been validly nominated. Two of them later withdrew their candidatures
within the period prescribed leaving in the field Shri Baidyanath Panjiar, the
appellant herein, Shri Raj Kumar Mahaseth, respondent No. 2 and Shri Gangadhar,
respondent No. 3. There were six polling stations in the constituency. 134
votes were polled out of which 33 votes were polled at Dalsingsarai polling
Counting of the votes showed that the
appellant had secured 45, the second respondent 49 and the third respondent 40,
first preference votes. As none of them obtained an absolute majority of the
votes cast, the third respondent was eliminated and his second preference votes
were taken into. consideration. 14 of his second preference votes went to the
appellant and 5 to the second respondent. Therefore the appellant was declared
elected. His election was later challenged by the 1st respondent herein. The
High Court has set aside the election and declared the 2nd respondent elected
on the ground that on counting the validly cast votes, the second respondent
has secured more votes than the appellant. It held that some of the votes Cast
were not valid votes.
The controversy relating to the validity of
some of the votes polled arose under the following circumstances. In the
electoral roll as it stood on the last date of filing nomination papers, the
registered voters were only 123; 16 of the registered voters were of the
members of Dalsingsarai Notified Area Committee. On April 13, 1968, as per a
notification under s. 389(c) of the Bihar 841 and Orissa Municipal Act, 1922,
40 members were nominated as members to the said Notified Area Committee in
place of the old members. Most of them were newly appointed members. To be
exact 35 of the 40 members nominated were new members.
Thereafter the electoral roll was amended on
the 27th April, 1968, just a day prior to the polling. As per the amended
electoral roll, there were 39 electors in the Dalsingsarai polling station.
Only four of them stood registered in the electoral roll as it stood on April
2, 1968. 12 of those who were electors under the original roll were removed
from the roll. 33 out of the 39 electors included in the electoral roll
relating to. Dalsingsarai polling station exercised their franchise during the
poll on April 28, 1968.
The question for consideration is whether it
was within the competence of the electoral registration officer to amend the
electoral rolls after the last date for making the nomination was over.
Provisions relating to the preparation of
electoral rolls for the Legislative Councils' Constituencies are found in Part
IV of the 1950 Act. Section 27(2) of the Act prescribes the mode of preparation
of the electoral rolls regarding the local authorities constituencies of a
Legislative Council. Clause (e) of that sub-section stipulates that provisions
of ss. 15, 16, 18, 22 and 23 shall apply in relation to local authorities'
constituencies as they apply in relation to assembly constituencies.
Section 22 deals with correction of entries
in the electoral rolls. Section 23 deals with the inclusion of names in the
electoral rolls. Sub-s. (3) of that section provides that:
"No amendment, transposition or deletion
of any entry shall be made under section 22 and no direction for the inclusion
of a name in the electoral roll of a constituency shall be given under this
section, after the last date for making nomination for an election in that
constituency or in the parliamentary constituency within which that
constituency is comprised and before the completion of that election." The
object behind sub-s. (3) of s. 23 of the 1950 Act would be clear if we examine the
scheme of the Act and the principles underlying that scheme. Part III of the
1950 Act provides for the preparation of the electoral rolls for assembly
constituencies. Section 15 provides that for every constituency, there shall be
an electoral roll which shall be prepared in accordance with the provisions of
that Act under the superintendence, direction and control of the Election
Commission. Section 16 enumerates what disqualifications will disentitle a
person from being enrolled as a voter. Section 18 provides that no person shall
be entitled to be registered in the electoral roll for any constituency more
842 Section 18 enunciates the principle
"one person-one vote".
Section 22 provides for correction of entries
in the electoral rolls. Section 23 (1 ) permits a person whose name is omitted
from the rolls to apply for inclusion. Sub- s. (2) of s. 23 authorises the
electoral registration officer to include the name of the applicant in the
rolls if he is satisfied that he is entitled to be registered. The ,object of
the aforementioned provision is to. see that to the extent possible, all
persons qualified to be registered as voters in any particular constituency
should be duly registered and to remove from the rolls all those who are not
qualified to be registered. Subs. (3 ) of s. 23 is an important exception to
the rules noted earlier. It gives a mandate to the electoral registration
officers not to amend, transpose or delete any entry in the electoral roll of a
constituency after the last date for making nominations for election in that
constituency and before the completion of that election. If there was no such
provision, there would have been room for considerable manipulations,
particularly when there are only limited number of electors in a constituency.
But for that provision, it would have been possible before the concerned
authorities to so. manipulate the electoral rolls as to advance the prospects
of a particular candidate. This would be more so if either all or a section of
the electors are persons nominated to local authorities. The legislative
mandate like the one embodied in s. 23(3) must be considered as mandatory not
merely because of the language employed in that sub- section but also in view
of the purpose behind the provision in question. In our opinion, cl. 23(a)
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 and before the
completion of that election. Section 23(3) does not deal with any mode or
procedure in the matter of registering the voters. It interdicts the concerned
officers from interfering with the electoral rolls under the prescribed
circumstances. It puts a stop to the power conferred on them. Therefore it is
not a question of irregular exercise of power but a lack of power.
It was next urged by Mr. Goburdhan, learned
Counsel for the appellant that s. 23(3) of the 1950 Act is subject to s.
27(2) of the same Act and therefore in view
of the direction issued by the electoral registration officer to include the
names of the electors in question, it was not open to the election petitioner
to take any objection to the same. We see no substance in this contention.
There is no conflict between sub-s. (2) of s. 23 and sub-s. (2) of s. 27. In
fact, as noticed earlier, the provisions of s. 23 have been incorporated into
s. 27(2) in view of s. 27(2)(e). A fair reading of the various clauses in s.
27(2) will make it clear that 843 the entries in an electoral roll of a
constituency, as they stood on the last date for making the nominations for an
election in that constituency should be considered as final for the purpose of
It was next urged that in view of s. 62 (1 )
of the Act no valid. objection can be taken to the franchise exercised by the
electors whose names were included in the electoral roll on April 27, 1968.
Section 62 (1 ) says that "no person who is not, 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." That provision no doubt stipulates that every person who is
for the time being registered in the electoral roll of any constituency except
as expressly provided by the Act shall be entitled to vote in that
constituency. The question is which is the electoral roll referred to in that
section ? Is it the electoral roll that was in force on the last date for
making nominations for an election or is it the electoral roll as it stood on
the date of the polling ? For answering that question we have to go' ' back to
s. 23(3) of the 1950 Act. In view of that provision the electoral roll referred
to in s. 62 ( 1 ) of the Act must be understood to be the electoral roll that
was in force on the last day for making* the nominations for the election.
It was next urged that even if we hold that
in including fresh electors in the electoral roll on April 27, 1968, the
electoral registration officer contravened s. 23(3) of the 1950 Act, the same
cannot be made a ground for invalidating the election as the contravention in
question does not come within the purview of subs. (1) ors. 100 of the Act.
This contention again does not appear to be sound.
Clause (d)(iii) of sub-s. (1) of s. 100 of
the Act provides that if the High Court is of the opinion that the result of
the election in so far as it concerns the returned candidate has been
materially affected by the improper reception, refusal or rejection of any vote
or the reception of any vote which is void, it shall declare the election void.
We have earlier come to. the conclusion that the electoral registration officer
had no power to include new names in the electoral roll on April 27, 1968.
Therefore votes. of the electors whose names were included in the roll on that
date must be held to be void votes. That conclusion satisfies one of the
conditions prescribed in s. 100(1)(d).
We have now to see whether the other
conditions prescribed in that clause namely whether the High Court on the
material before it could have been of the opinion that the result of the
election in so far as it concerned the returned candidate has been materially
affected' because of the reception of the votes which are void. The High Court
elaborately considered that question. It has examined each one of the disputed
votes and has come to the conclusion that if 844 those votes had been excluded,
the valid votes received by the contesting candidates in the first count would
have been as follows:
Appellant 32 Respondent No. 2 46 Respondent
No. 3 23.
In the second count after the elimination of
the third respondent and taking into consideration the second preferences give
by the electors, who gave their first preference to him the following would
have been the position:
Appellant 43 votes and Respondent No. 2 57
No matter was placed before us to show that
this conclusion was wrong. There was some controversy about two votes but we do
not think it necessary to go into the same as any decision as regards their
validity will not affect the final conclusion.
Before leaving this case, it is necessary to
mention that at one stage of the arguments, the learned Counsel for the
appellant contended that the decision of this Court in B.M. Ramaswamy v. B.M.
Krishnamurthy and Ors.(1) governs the facts of this case. But after some
discussion he gave up that contention. The ratio of that decision has no relevance
for our present purpose. In that case, the High Court came to the conclusion
that the corrections in the concerned electoral roll had been made before the
last date prescribed for filing nominations to the election but it came to the
conclusion that the electors newly added to the list were not qualified to be
registered as electors- This Court overruled that finding holding that every
person whose name finds place in the electoral roll must be' held to be
qualified to be a candidate whether he was qualified to be registered as an
elector or not. In other words it upheld the finality of the electoral roll as
it stood on the last date for filing nominations for the election.
For the reasons mentioned above this appeal
fails and the same is dismissed with costs.
Y.P. Appeal dismissed.