Pd. Singh Vs. Nawal Kishore Yadav  INSC 452 (28 August 2000)
R.C. Lahoti & K.G. Balakrishnan
Pursuant to a Notification issued by the Governor of Bihar under Section 16 of
the Representation of the People Act, 1951 (hereinafter the 1951 Act, for
short), biennial elections to the Bihar Legislative Council from the Patna
Teachers Constituency were held in April, 1996. There were four candidates in
the fray including Nawal Kishore Yadav, the respondent, who defeated his
nearest rival candidate Dr.
Sharma by a margin of 870 votes. Polling was held on 28.4.1996 whereat the
respondent secured 3414 votes as against 2544 votes secured by Dr. P.N. Sharma.
The respondent was declared elected.
24.4.1996 the appellant, an elector duly enrolled in the electoral list of the
constituency filed an election petition under Section 80 of the 1951 Act
calling in question the election of the respondent. The only ground alleged in
support of prayer for avoiding the election of the respondent was the
registration and enrolment of a large number of ineligible persons as electors
in the electoral roll and consequently improper reception of votes cast by such
illegal electors which had resulted in materially affecting the result of the
election insofar as the returned candidate was concerned. The bundle of facts
constituting the cause of action as alleged by the appellant are briefly stated
in the succeeding paragraph.
22.10.1986 the Chief Electoral Officer, Bihar in exercise of the powers
conferred by Section 27 (3)(b) of the Representation of the People Act, 1950
(hereinafter the 1950 Act, for short) issued a notification No.1248 publishing
a list of educational institutions of the State which shall be deemed to be not
lower in standard than that of a secondary school. On 29.9.1995 a notice under
Rule 31(3) of the Electors Registration Rules, 1960 was published by the Chief
Electoral Officer, Bihar calling upon all eligible voters
who wished to get their names entered in the electoral roll to apply in Form 19
on or before 6.11.1995. All persons who are citizens of India and are
ordinarily residents of the constituency and engaged in teaching work for not
less than three years during the preceding six years calculated from 1.11.1995
in an educational institution not lower in standard than that of a secondary
school were eligible for enrolment as electors in the electoral roll. According
to the election petitioner the authorities entrusted with the task of preparing
the electoral roll included the names of many a voters in the electoral roll
who were not at all eligible for being so included as they were teaching in the
educational institutions which were neither permitted to be established nor
affiliated nor recognised by the State Government which was mandatorily
required under the provisions of The Bihar Intermediate Education Council Act,
1992. On 26.12.1995 Dr. P.N. Sharma, the then member of Legislative Council
from Patna Teachers Constituency, filed objections to the inclusion of the
names of such ineligible persons in the electoral roll seeking deleting of
their names. In spite of repeated persuasions made by Dr. P.N.
the authorities did not hear and decide the objections and in the meantime the
Governor of Bihar, as recommended by the Election Commission of India, issued
notification dated 26.3.1996 fixing the schedule of election programme. On or
about 1.3.1996, objections were also preferred by one Dr. Ram Padmadeo seeking
deletion of the names of 1625 ineligible electors from the electoral roll.
30.3.1996 the Assistant Electoral Registration Officer-cum-District Magistrate,
Patna refused to consider the objection
petition filed by Dr. Ram Padamdeo on the ground that the objection petition
was not preferred in the prescribed proforma and further there was not enough
time available before the date of filing of nominations, i.e.
to hear and dispose of objections calling in question the inclusion of as many
as 1625 names in the electoral roll. There were other objections filed by 17
persons laying challenge to the inclusion of 384 names of electors in the
electoral roll which too met with the same fate on 30.3.1996. The election
petitioner alleged that the election was vitiated by the improper reception of
votes cast by ineligible persons and by non- compliance with the provisions of
the Constitution, the 1950 Act and rules and orders relevant to the election.
Such allegations, as abovesaid, formed contents of paragraphs 15 to 42 along
with annexures 1 to 20 of the election petition. The respondent moved an
application before the learned Designated Election Judge seeking striking out
of the said paragraphs 15 to 42 along with annexures 1 to 20 of the election
petition and submitting that the commission of any illegality and/or
irregularity in the preparation of the electoral roll was beyond the ambit and
scope of Section 100 of the 1951 Act and therefore the averments made in the
said paragraphs 15 to 20 of the election petition along with the said annexures
were liable to be struck down as irrelevant and not furnishing any cause of
action to the appellant. It was prayed that the election petition was also
liable to be summarily dismissed as consequent upon striking out the part of
pleadings as above said, nothing survived for being tried and adjudicated upon
at the trial of the election petition.
plea raised by the respondent has prevailed with the learned Designated
Election Judge. He has held that the pleadings contained in paragraphs 15 to 42
of the Election Petition read along with the annexures 1 to 20 were liable to
be struck down under order 6 Rule 16 of the CPC consequent whereupon no cause
of action survived for proceeding with the trial of the election petition under
Section 86 of the 1951 Act and hence the same was also liable to be dismissed.
The aggrieved election petitioner has filed this appeal under Section 116A of
the 1951 Act.
sole question arising for decision in this appeal is whether the averments made
in the election petition made out@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ a ground for declaring
election to be void within the@@ JJJJJJJJJJJJJJ meaning of Section 100 of the
1951 Act obligating the learned Designated Election Judge to proceed with the
trial of the Election Petition instead of summarily dismissing the same.
(1) of Section 100 of the 1951 Act provides as under:- 100. Grounds for
declaring election to be void.- (1) Subject to the provisions of sub-section
(2) if [the High Court] is of opinion - (a) that on the date of his election a
returned candidate was not qualified, or was disqualified, to be chosen to fill
the seat under the Constitution or this Act [or the Government of Union
Territories Act, 1963 920 of 19630]; or (b) that any corrupt practice has been
committed by a returned candidate or his election agent or by any other person
with the consent of a returned candidate or his election agent; or (c) that any
nomination has been improperly rejected;
that the result of the election, in so far as it concerns a returned candidate,
has been materially affected- (i) by the improper acceptance or any nomination,
or (ii) by any corrupt practice committed in the interests of the returned
candidate [by an agent other than his election agent], or (iii) by the improper
reception, refusal or rejection of any vote or the reception of any vote which
is void, or (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.
High Court shall declare the election of the returned candidate to be void.
conceded by the learned counsel for the appellant, as was done by the learned
counsel for the election petitioner before the learned Designated Election
Judge, that the grounds canvassed by the election petitioner for avoiding the
election of the respondent were covered by sub-clauses (iii) and (iv) of clause
(d) of sub-section (1) of Section 100 of the 1951 Act and it was by reference to
these two sub- clauses alone that the maintainability of the election petition
was required to be decided by the Court.
P.S. Mishra, the learned senior counsel for the appellant submitted that
election of a returned candidate is liable to be set aside if there has been
improper reception of any vote or the reception of any vote which is void.
has to be seen is whether a person not entitled to be enrolled under the law as
an elector has voted and if that be so then it will be a case of improper reception
of any vote or the reception of a void vote and it would not make any
difference if the inelligible person was enrolled as an elector in the
electoral list. It was further submitted by Shri Mishra that if a person is not
qualified to be enrolled as a voter or is disqualified from voting and still
casts a vote taking advantage of his being enrolled in the electoral list then
the enrolment itself being in non-compliance with the provisions of the
Constitution or an enactment, the case would be covered by sub- clause(iv) of
clause (d) of Sub-section (1) of Section 100 of 1951 Act. On a further proof of
the fact that the result of the election insofar as it concerns the returned
candidate was materially affected, the election would be liable to be set aside.
To test the validity of the plea so put- forth and forcefully canvassed we may
proceed to notice the relevant constitutional and statutory provisions.
326 of the Constitution is founded on the doctrine of adult suffrage. It
provides that every person who is a citizen of India and who is not less than
18 years of age on such date as may be fixed in that behalf by or under any law
made by the appropriate Legislature and is not otherwise disqualified under the
Constitution or any law made by the appropriate Legislature on the ground of
non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall
be entitled to be registered as a voter at any such election. This Article
clearly contemplates law being enacted by an appropriate Legislature providing
for qualifications and disqualifications subject to which a citizen of India
not less than 18 years of age shall be entitled to be registered as a voter and
exercise his right to franchise. Article 327 provides for law being made by
Parliament subject to the provisions of the Constitution with respect to all
matters relating to or in connection with elections to either House of
Parliament or to the House or either House of the Legislature of a State which
law may include provisions for the preparation of electoral rolls, the
de-limitation of constituencies and all other matters necessary for securing
the due constitution of such House or Houses.
Representation of the People Act, 1951 was enacted to provide for the conduct
of elections to the Houses of Parliament and to the House or Houses of the
Legislature of each State, the qualifications and disqualifications for
membership of those Houses, the corrupt practices and other offences at or in
connection with such elections and the decision of doubts and disputes arising
within or in connection with such elections. So far as the exercise of right to
franchise is concerned there are only two relevant provisions in this Act.
Clause (e) of sub-section (1) of Section 2 defines elector in relation to a
constituency to mean 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 Section 16 of the Representation of the
People Act, 1950. Section 62 provides as under:-
Right to vote - (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.
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 (43 of 1950).
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.
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 that once, and if he does so vote, all his votes in
that constituency shall be void.
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.
that nothing in this sub-section shall apply to a person subjected to
preventive detention under any law for the time being in force.
62 can clearly be divided into two parts. One part is sub-section (1), which is
couched partly in positive form and partly in the negative. A person who is not
entered in the electoral roll of any constituency is not entitled to vote in
that constituency though he may be qualified under the Constitution and the law
to exercise the right to franchise. To be entitled to cast a ballot the person
should be entered in the electoral roll. Once a person is so entered he is
entitled to vote in that constituency. The phrase for the time being has been
significantly and strategically cast into the framing of the provision and
qualifies the expression entered in the electoral roll of any constituency. It
gives the factum of entry in the electoral roll of any constituency a decisive
role to play for finding out whether he is or is not entitled to vote in that
constituency. The other part of Section 62 consists of sub-sections (2) to (5). In spite of a person having been entered into an
electoral roll and by virtue of such entry having been conferred with a right
to vote, such right may yet be defeated by existence of any of the
disqualifications or ineligibilities enacted by sub-sections (2) to (5).
Representation of the People Act, 1950 was enacted to provide for, inter alia,
the qualifications of voters at election to the House of the People and the
Legislatures of States, the preparation of electoral rolls, and matters
connected therewith - the subjects which have been left untouched by the latter
Act of 1951. Electoral rolls for Council constituencies are prepared under part
IV of the 1950 Act which part now consists of only one section, i.e., Section
27, the relevant part whereof reads as under:-
Preparation of electoral roll for Council constituencies.- (1) In this section,
local authorities constituency, graduates constituency and teachers
constituency mean a constituency for the purpose of elections to a Legislative
Council under sub-clause (a), sub-clause (b) and sub-clause (c), respectively,
of clause (3) of article 171.
xxxx xxxx xxxx@@ IIII xxxx xxxx xxxx xxxx (3) For the purpose of elections to
the Legislative Council of a State in the graduates constituencies and the
teachers constituencies, the State Government concerned may, with the
concurrence of the Election Commission, by notification in the Official
Gazette, specify - (a) the qualifications which shall be deemed to be
equivalent to that of a graduate of a university in the territory of India, and
(b) the educational institutions within the State not lower in standard that
that of a secondary school.
The provisions of sections 15,16,18,21,22 and 23 shall apply in relation to
graduates constituencies and teachers constituencies as they apply in relation
to assembly constituencies.] (5) Subject to the foregoing provisions of this
section, - [(a)] every person who [is] ordinarily resident in a graduates
constituency and has, for at least three years [before the qualifying date]
been either a graduate of a university in the territory of India or in
possession of any of the qualifications specified under clause (a) of sub-
section 3) by the State Government concerned, shall be entitled to be
registered in the electoral roll for that constituency; and ([b)] every person
who [is] ordinarily resident in a teachers constituency, and has, within the
six years immediately [before the qualifying date for a total period of at
least three years, been engaged in teaching in any of the educational
institutions specified under clause (b) of sub-section (3) by the State
Government concerned shall be entitled to be registered in the electoral roll
for that constituency.
For the purpose of sub-sections (4) and (5) the qualifying date shall be the
1st day of November of the year in which the preparation or revision of the
electoral roll is commenced.] Sub-section (4) above-said refers to a few
sections placed in part III entitled Electoral Rolls for Assembly
Constituencies and makes them applicable to teachers constituencies also.
Sections 16 and 19 provide as under:-
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 of 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.
The name of any person who becomes so disqualified after registration shall
forthwith be struck off the electoral roll in which it is included :
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 (10 shall
forthwith be reinstated in that roll if such disqualification is, during the
period such roll is in force, removed under any law authorising such removal.] [19.
Conditions of registration. - Subject to the foregoing provisions of this Part,
every person who - (a) is not less than [eighteen years] of age on the
qualifying date, and (b) is ordinarily resident in a constituency.
be entitled to be registered in the electoral roll for that constituency.]
Section 15 provides for an electoral roll being prepared for every
constituency. Section 18 restrains any person@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ being registered in more than
one electoral roll. Section@@ JJJJJJJJJJJJJJJJJJJJ 21 prescribes the manner for
preparation and revision of electoral rolls. Correction of entries in electoral
rolls is provided for by Section 22. Section 23 prescribes for inclusion of
names in electoral rolls as also for transposition of names from one electoral
roll to another one.
perusal of the above-said provisions leads to certain irresistible inferences.
Article 326 of the Constitution having recognised the doctrine of adult
suffrage has laid down constitutional parameters determinative of the
qualifications and disqualifications relating to registration as a voter at any
election. The two Articles, i.e., Article 326 and Article 327 contemplate such
qualifications and disqualifications being provided for, amongst other things,
by the appropriate Legislature. The fountain source of the 1950 Act and 1951
Act enacting provisions on such subject are the said two Articles of the
Constitution. The provisions of Section 16 of the 1950 Act and Section 62 of
the 1951 Act read in juxtaposition go to show that while Section 16 of the 1950
Act provides for disqualifications for registration in an electoral roll,
(qualifications having been prescribed by Section 27 thereof), Sections 62 of
the 1951 Act speaks of right to vote which right is to be determined by
reference to the electoral roll of the constituency prepared under the 1950
Act. The eligibility for registration of those enrolled having been tested by
reference to Section 16 or Section 27 of the Act, as the case may be, and the
electoral roll having been prepared, under the 1950 Act if a person is or
becomes subject to any of the disqualifications provided in clauses (a) (b) (c)
of sub-section (1) of Section 16, two consequences may follow. His name may
forthwith be struck off the electoral roll, in which the name is included,
under sub-section (2) of Section 16 of the 1950 Act. Even if the name is not so
struck off yet the person is disqualified from exercising right to vote at the
election by virtue of sub-section (2) of Section 62 of the 1951 Act. The
qualifications prescribed for enrolment in the electoral roll as provided by
clause (b) of sub-section (5) of Section 27 of the 1950 Act are : (i) ordinary
residence in a teachers constituency, (ii) being engaged in the relevant
educational institution for a total period of at least three years within the
six years immediately before the qualifying date. The enquiry into availability
of these eligibility qualifications, under the scheme of the 1950 Act is to be
made at the time of preparation of the electoral roll or while entering or
striking out a name in or from the electoral roll. Section 62 of the 1951 Act
does not provide that a person who is not qualified to be enrolled as an
elector in the electoral roll shall not be entitled to vote at the election. To
put it briefly a disqualification under Section 16 of the 1950 Act has a
relevance for and a bearing on the right to vote under Section 62 of the 1951
Act but being not qualified for enrolment in the electoral roll under Section
27 of the 1950 Act has no relevance for or bearing on the right to vote at an
election under Section 62 of the 1951 Act. That is the distinction between a
disqualification and not being qualified.
will be appropriate to take stock of the available judicial opinion on the
issue at hand. We will straightaway proceed to refer to a Constitution Bench
decision in 1974 (1) SCR 548. All the decided cases of this Court available
till then were noticed by the Constitution Bench.
dispute arose out of an election to elect four members of the Council of States
from the State of Gujarat held in April 1972. The main ground
urged in the election petition for declaring the election of the respondents 4
and 5 in the election petition void was that they were not ordinary residents
in the area covered by any Parliamentary constituency in the State of Gujarat
and that their names had been illegally entered in the electoral roll of the
respective constituency in Gujarat and as such they were not electors within
the meaning of Section 2 (1)(e) of the 1951 Act and consequently were also not
eligible to be candidates in the election. The Constitution Bench held that the
question whether a person suffers from any of the disqualifications specified
in Section 16 of the 1951 Act can always be gone into by the Court trying an
election petition and the electoral roll was not conclusive or final in respect
of these matters but the ground taken in the election petition to declare the
election of the respondents 4 and 5 void was not that they suffered from any of
the disqualifications mentioned in Section 16; the ground taken was that since
the elected respondents were not ordinarily resident in any of the
Parliamentary constituencies of Gujarat, they had not fulfilled one of the
conditions necessary to be satisfied for registration in the electoral roll. In
other words, the ground taken was not a disqualification but not being
qualified to be enrolled as an elector. The Constitution Bench also drew a
distinction between lack of jurisdiction or power and erroneous exercise
thereof, placing on record the difficulty in formulating an exhaustive rule to
tell when there is lack of power and when there is an erroneous exercise of it.
The Constitution Bench concluded that a wrong decision on a question of
ordinary residence for the purpose of entering a persons name in the electoral
roll cannot be treated as a jurisdictional error which can be judicially
reviewed either in a Civil
Court or before an
Election Tribunal. The Constitution Bench also held that the 1950 Act is a
complete code in the manner of preparation and maintenance of electoral rolls.
The relief of enrolment, or striking out the name of a person enrolled therein
on the ground of his lacking in qualifications conferring a right to be
enrolled, must be adjudicated in the manner prescribed by the 1950 Act invoking
the jurisdiction of the authorities contemplated therein. The Constitution
Bench held that non-compliance with the provisions of Section 19 of the 1951
Act (which in the case at hand is pari materia with Section 27 (5)(b) of the
1950 Act) cannot furnish a ground for declaring an election void.
1977 SC 1992 the election of the returned candidate was challenged and sought
to be set aside on the ground of inclusion of certain electors in the electoral
rolls though they had ceased to be qualified from being so enrolled and as such
were not entitled to vote notwithstanding the presence of their names in the
electoral rolls and that their participation in the election had materially
affected the result. This Court, following the Constitution Bench decision in Hariprasad
Trivedis case (supra), held :
finality of the electoral roll cannot be challenged in an election petition
even if certain irregularities had taken place in the preparation of the
electoral roll or if subsequent disqualification had taken place and the
electoral roll had on that score not been corrected before the last hour of
making nominations. After that dead line the electoral roll of a constituency
cannot be interfered with and no one can go behind the entries except for the
purpose of considering disqualification under Section 16 of the 1950 Act. In
the case in question the persons whose names were recorded in the electoral
roll and participated in the voting were not disqualified under Section 16 of
the 1950 Act. That being the position it would have been wrong on the part of
the Presiding Officer not to allow the voters whose names were recorded in the
electoral roll of the constituency to participate in the voting, even though
their names could have been earlier at the appropriate time legitimately
excluded from the electoral roll. These voters are electors within the meaning
of Section 2 (1) (e) of the 1951 Act and were entitled to vote under Section 62
of the 1951 Act.
democracy and for that matter in an election, perennial vigilance should be the
watch-word for all. If, therefore, notwithstanding the provisions of the law,
appropriate action was not taken at the appropriate time, the provisions of the
election law which have got to be construed strictly, must work with
indifference to consequences, immediate or mediate. [emphasis supplied] The
Court in Nripendra Bahadurs case also noticed the provisions of sub-section (3)
of Section 23 of the 1950 Act which is applicable to electoral rolls in
relation to teachers constituencies and 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 Section 23 after the last date for making nominations for an election in
that constituency or in the Parliamentary constituency within which that
constituency is comprised and before the completion of that election. During
the course of its judgment this Court has also observed that mere remissness of
the officers in performing their duty in preparation of the electoral rolls is
not relevant for the purpose of determining the legality of an election in the
entire scheme of the Act and the object and purpose of preparation of electoral
rolls under the 1950 Act.
for avoiding an election on a ground akin to the one raised in the case before
us came up for the consideration of a Constitution Bench of this Court in Laxmi
-(1985) 4 SCC 689. It was held:- Notwithstanding the fact that the roll
contains these errors and they have remained to be corrected, or that the
appeals in respect thereof are still pending, the Registration Officer is under
an obligation to publish the roll by virtue of Rule 22.
the fact that certain claims and objections are not finally disposed of, even
assuming that they are filed in accordance with law, cannot arrest the process
of election to the Legislature. The election has to be held on the basis of the
electoral roll which is in force on the last date for making nominations.
the course of its judgment the Constitution Bench has observed that election
laws abhor a vacuum; the electoral rolls may contain errors and they may remain
to be corrected or the appeals in respect thereof may be pending, the electoral
roll effective for the ensuing election must achieve a finality at a given
point of time (such as the last date prescribed for filing the nominations). It
has to be remembered that right to contest an election, a right to vote and a
right to object to an ineligible person exercising right to vote are all rights
and obligations created by Statute. They are not the rights in common law.
into existence Houses or Institutions responsible for functioning of a
democracy have a vital constitutional objective to achieve as they are so
essential for the functioning of a democracy. A breach of any statutory right
or obligation should not come in the way of the process directed towards
fulfilling the high objective of bringing into existence of a House or
Institution contemplated by Constitution as enabling democratic functioning of
Full Bench decisions of two High Courts have come to
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Town Area Sakit and Anr.
- AIR 1959 Allahabad 357, Raghubar@@ JJJJ Dayal, J. (as His Lordship then was) expressed
the majority opinion by holding that a persons non-residence for the prescribed
period or not attaining the age of 21 years is not his disqualification for
registration but amounts to his being not qualified to be registered; so long
as one is not qualified no question of disqualification arises. A vote is not
unlawful merely on account of the fact that the person had no right to have his
name entered in the electoral roll.
J. agreeing with Raghubar Dayal, J. held that the electoral roll is to be
deemed final and conclusive as far as the fulfilment of qualification of a
voter is concerned but it is not to be deemed final and conclusive by the
Election Tribunal so far as the disqualifications attaching to such persons are
concerned. Chaturvedi, J.
the well-settled practice in England having been adopted in the Representation
of the People Act and held that an entry in the electoral roll has to be taken
to be conclusive proof of the fact that the person fulfils the requisitive
conditions as to age and residence in the Constituency; finality has been given
to the decision of the officer preparing the roll insofar as the fulfilment of
conditions of registration is concerned but it has not been considered
desirable to extend the same finality to the decision on the subject of
disqualification as the latter is a more serious matter.
Full Bench decision of Allahabad High Court has been followed by the Punjab
& Haryana High Court in Rool Lal arising for decision was whether an election
petition can be filed on the ground of the voter below the age of 21 years
having been allowed to cast vote at the election by virtue of his being
enrolled as an elector in the electoral list.
Full Bench held that after the electoral rolls have been finalised the voting
of a person whose name is on the electoral roll cannot be challenged as being
void on the ground that he was under 21 years of age on the qualifying date and
resort cannot be had to Section 100 (1)(d)(iv) of the 1951 Act to enable the
dispute as to age being tried as an issue by an Election Tribunal in an
find ourselves in agreement with the law so stated by the two Full Benches in Ghulam
Mohiuddin (supra) and Roop Lal Mehta (supra) and record our approval of the
the principles underlying the plenary bar on judicial proceedings in election
matters created by Article 329(b) is the pre- emptory urgency of prompt
engineering of the whole election process without intermediate interruptions by
way of legal proceedings challenging the steps and stages in between the
commencement and the conclusion. (See Mohinder Singh Gill AIR 1978 SC 851, Para
30) The same principle underlies sub-section (3) of Section 23 of 1950 Act. The
last date for making nomination for elections in a constituency and the date of
declaration of result are the terminus a quo and terminus ad quem between which
the electoral rolls must remain untouched. Amendment (which will include
inclusion), transposition or deletion of entries in electoral rolls are all
taboos in this interregnum.
true that the Assistant Electoral Registration Officer-cum- District
Magistrate, Patna was not justified in sitting over
the objections laying serious challenge to the legality of enrolment of a large
number of voters in the electoral roll. Such objections should have been
promptly dealt with and disposed of. Withholding of dealing with the objections
on the ground that the officer did not have time enough available at his
disposal was hardly any justification for the inaction on the part of the
failure on the part of the officer to dispose of the objections has laid to an
allegation being made in the election petition that the officer was obliging
the ruling party in the State of Bihar as it stood to gain by inclusion of the names of ineligible voters in
the electoral roll.
delay in disposal of the objections has to be deprecated. Preparation and
maintenance of electoral rolls is an ongoing process. A meaningful democracy
means participation of all eligible citizens in the exercise of right to vote
and exclusion of ineligible voters therefrom.
goal achieved, the result of election would reflect the will of the people.
Watchful and alert citizenry assisted by responsible and responsive bureaucracy
entrusted with the task as to electoral rolls is needed to reach the said goal.
need to hear and decide claims for inclusion in or exclusion from electoral
rolls promptly and objectively hardly needs to be emphasised. However, we have
already held this could not have been a ground for avoiding the election and we
leave the matter at that.
up we are of the opinion that inclusion of person or persons in the electoral
roll by an authority empowered in law to prepare the electoral rolls though
they were not qualified to be so enrolled cannot be a ground for setting aside
an election of a returned candidate under sub-clause (iii) or (iv) of clause
(d) of sub-section (1) of Section 100 of the Representation of the People Act,
1951. A person enrolled in the electoral list by an authority empowered by law
to prepare an electoral roll or to include a name therein is entitled to cast a
vote unless disqualified under sub-section (2) to (5) of Section 62 of the Representation of the People Act, 1951.
A person enrolled in the electoral roll cannot be excluded from exercising his
right to cast vote on the ground that he did not satisfy the eligibility
requirement as laid down in Section 19 or 27(5) of the Representation of the
People Act, 1950.
taken by the learned Designated Election Judge in the judgment under appeal
cannot be found fault with.
appeal is held liable to be dismissed and is dismissed accordingly. The
respondent has chosen not to appear.
no order as to the costs.