Pampakavi Rayappa Belagali Vs. B. D.
Jatti & Ors [1970] INSC 218 (15 October 1970)
15/10/1970 GROVER, A.N.
GROVER, A.N.
SHAH, J.C.
HEGDE, K.S.
CITATION: 1971 AIR 1348 1971 SCR (2) 611
CITATOR INFO:
F 1973 SC 717 (11,14) F 1973 SC2602
(20,24,28) D 1975 SC 290 (31) RF 1977 SC1992 (17) R 1985 SC1233 (25)
ACT:
Representation of the People Act VTEV-Section
100(1)(d)Election petition-Trial of-Whether there is jurisdiction of question
validity of entry of name in Electoral RollRepresentation of the People Act
1950 and under made there under-If only provisions under which such validity
may be questioned.
HEADNOTE:
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 Jamkhandi constituency. It
was alleged inter alia 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 malpractices 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 stand 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 for registration in an Electoral Roll for a constituency. There are
elaborate rides which have be-en 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 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 of 1951. 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 present case did not
also involve any violation or infringement of Article 173 or any other
provision of the Constitution.
[,615 H] The question whether respondent No.
1 was ordinarily resident in Jamkhandi constituency during the material period
and was entitled to 612 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 noncompliance 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 election on the ground of non-compliance with the
provisions of the Act of 1950 or of any rules made hereunder with the exception
of s. 16. [617 E] Durga Shankar Mehta v. Thakur Raghurai Singh & Others, [1955]
1 S.C.R. 267; K. Sriramulu v. K. Deviah (1965) 1 Mys.. L. J. 676; Roop Lal
Mehta v. Dhan 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 the Trial Judge on the allegations of
corrupt practices.
Meghraj Patodis v. R. K. Birla & Others,
Civil Appeal No. 1094/69 dated 10-9-1970; referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2394 of 1968.
Appeal under s. 116A of the Representation 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 Shyamala
Pappu, for the appellant.
A. V. Albal 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 High 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. The only contesting candidates were
respondent No. 1 and respondent No. 2 M. M. Shivappa. Respondent No. 1 secured
24,578 votes whereas respondent No. 2 got 21,261 votes. The election petition
was filed 613 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 December 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, hereinafter
called the "Act", dil not permit withdrawal by one petitioner without
the consent of his copetitioner. 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
produced by the parties is also voluminuous. The judgment of the learned judge
consists of 227 printed pages. A number of issues were framed but the
controversy before us has been confined only to certain points.
The first question which falls for
consideration arises out of issue No. 1 which consists of three clauses and was
framed in the following terms "1 (a) Do the petitioners prove that the 1st
respondent 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 1 st respondent as elector in the Electoral Roll
relating to Jamkhandi Constituency ? (c) Has this Court no jurisdiction to go
into the said question of validity ?" It was held by the leaned 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 Jamkhandi Constituency and that the c
court had the jurisdiction to go into that question. It was, however, found on
a consideration of the evidence that the petitioner& had failed to prove
that respondent No. I was not an elector and was not qualified to stand for
election to a seat in the Mysore Legislative assembly, from Jamkhandi
constituency.
12-LA36SupCI/71 614 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 precluded from deciding this matter it will be altogether
unnecessary to consider the evidence led for the purpose of clause (a) of issue
No. 1.
The principal allegations of the petitioners
on issue No. 1(a) were that respondent No. I had ceased to be a person
ordinarily resident within the constituency of Jamkhandi during the period
relevant to the 1967 General Elections.
It was further asserted that by long stay in
the city of Bangalore the name of respondent No. I had been entered in the
Electoral Roll relating to the municipal area of that 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 ,Constituency.
In order to decided the jurisdiction and
powers of, the court trying an election petition under the provisions of the
Act to determine 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 1950, to be called the "Act of 1950" and the
Constitution.
Part 11 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)............................
(c) in the case of any other seat he is an
elector for any Assembly constituency in that State." The word
"elector" is defined by s. 2 (1 ) (e) to mean in relation to a
constituency a person whose name is entered in the Electoral Roll of that Constituency
for the time being in force and who is 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
Legislative 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 615 the Act,. therefore,
is that in order to stand for election to a legislative assembly of a State a
person must be an elector for any assembly 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 delimitation
of constituencies for the purpose of elections, to the House of the People and
the legislatures of States, the qualifications of voters at such elections, the
preparation of Electoral Rolls.......... and matters connected therewith.
Part III 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
accordance with the provisions of the Act of 1950 under the superintendence,
direction and control of the Election Commission. Section 1 6 is in these terms:
S. 16. "Disqualifications for registration in an electoral roll.(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 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...........................
Section 19 gives the conditions of
registration in the Electoral Roll. It provides that every person who is not
less than 21 years of age on the qualifying date and is ordinarily resident in
a constituency shall be entitled to be registered in the Electoral Roll for
that constituency.
Section 20 deals with the meaning of
"ordinarily resident".
The preparation and revision of Electoral
Roll has to be made in accordance with s. 21 and the correction of entries' is
provided by s. 22. Section 24 contains a provision for an appeal which can be
filed to the Chief Electoral Officer from any order of the Electoral
Registration Officer under s. 22 or s. 23. Under s. 30 no civil court shall
have jurisdiction to entertain or 616 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
preparation 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 registration 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 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.
Article 173 of the Constitution relates to
qualifications for membership of the State legislature. It reads :Art. 173
"A person shall not be qualified to be chosen 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 Schedule;
(b) is, in the case of a seat in the
Legislative Assembly, not less than twentyfive years of age and, in the case of
a seat in the Legislative Council, not less than thirty years of age; and (c)
possesses such other qualifications as may be prescribed in that behalf by or
under any law made by Parliament." The qualifications, as mentioned
previously, have been prescribed by s. 5 of the Act. Condition (b) in s. 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 Raghurai Singh &
Others(1) involved non-compliance with the provisions of clause (b) of Art. 173
and in case of a candid-ate 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. 1 00 of the Act. The
present case is clearly not of that kind and.
no violation or in(1) [1955] 1 S.C.R. 267.
6 17 fragment 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
superintendence, direction and control of elections which are vested in the
Election Commission. Article 325 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 Assemblies 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 case the question whether respondent No. 1 was ordinarily
resident in Jamkhandi constituency 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 provisions 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 petition
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 and properly appreciated the correct ratio and true determination of
the points involved in Durga Shanker Mehta's(1) case. The distinction 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
decision of a Full bench of the Punjab and Haryana High Court in Roop Lal Mehta
v. Dhan Singh & Others(1) about the finality of the Electoral Roll was,
also not noticed. In this view of the matter the evidence relating to issue No.
1(a) becomes wholly irrelevant and redundant. The decision on that issue in
favour of respondent No. 1, is, however, affirmed.
(3) [1967] P. L. R. 618.
618 [His 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 discreet 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
Jamkhandi is situate because he had also figured similarly in the previous
contest 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 should also seem to be so conducted as to
inspire confidence in the minds of the electors that everything has been above
board and has been done to ensure 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 interfering for the benefit of one or the other
candidate. This is particularly so if a candidate is holding an important position
or assignment like respondent No. 1, who, at the material time was a Minister
in the State.
The appeal fails and is dismissed. In view of
all the facts and circumstances of the case we make no order as to costs in
this Court.
R.K.P.S. Appeal dismissed.
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