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A B c D E F G PAMPAKAVI RAYAPPA BELAGALI v. B. D.JATI1 & OTHERS October 15, 1970 [J.C. SHAH, K, S. HEGDE AND A. N. GROVER, JJ.) 611 Representation of thePeople A_ct VTEV-Section 100(1) (d)-Election petition-Trial of-Whether there is jurisdictiOn o questionvalidity of ent~y of name in ElectoralRoll-Representation of the People Act 1950 and ules nzade thert;under-1/ onlyprovsions under which suchvalidity may be qufstioned. By an electionpetition two electors of theconstituency,the appellants, challengedthe electionof thefirstrespondentto theMysoreLegislative Assembly in 1967fromthe famkhandi constituency. It was alleged inter dia thatthe firstrespondenthad ceasedto be a personordinarily residentwithin the constituencyduring the periodrelevant to the 1967 GeneralElections,and the validity of theentryof his nameon the Electoral Roll was questioned;it was claimed that he was not therefore qualifiedto standfor electionfrom the constituency.The petitionalso contained allegationsof corruptpracticesincludingmisuse by certain Police Officers of theirposition to preventvoters from votingfreely,and mal-practices by the PresidingOfficer at thetimeof polling,etc. Afterframingan issueon thequestionand takingthe view that the Courthad jurisdictionto determinethe validityof theinclusion of the firstrespondent'sname as an elector .on the Electoral Roll, thetrialjudge held on a considerationof the evidence, that the petitioners had failed toprovehe first respondent was not an elector and was not qualifiedto •tand for electionfrom the constituency.The High Court also rejected the allegations of corruptpractices and dismissedthe petition. On appeal to thisCourt, HELD: (i) Under section 30 oftheRepresentationof the People Act, 1950, no civil courtshall havejurisdictionto entertain or adjudicate upon any questionwhether any person .is or is not entitled fdr registration in an ElectoralRoll for a constituency.There are elaboraterules which havebeen promulgatedfor preparationand revisionof theElectoral Rolls, namely,Electors'Rules 1960. The conditionsabout being ordinarily residentin a constituencyfor thepurposeof registrationare meantfor thatpurposealone and havenothinglo do with the disqualifications for registrationwhich are prescribed by s. 16 of theActof 1950, which aloneare relevantto thedefinitionof an "elector" as given in s .. 2(1) (e) oftheAct of 195 I. Theentireschemeof theActof 1950 and the amplitudeof itsprovisionsshow that the entriesmade in anElectoral Rollof a constituencycan onlybe challenged in accordancewith the machineryprovided by it andnot in anyothermanner or beforeany otherforumunless some question of violationof the provisions of the Constitution is involved.The plresent case did not alsQ' involveany violationor infringementof Article 173 oranyotherprovision of the Constitution. [615 HJ ThequestionwhetherrespondentNo. I wasordinarily re·ident in Jamkhandiconstituencyduring the materialperiod and was' ·titled to 612 SUPREME COURT REPORTS [1971] 2 S.C.R. be registeredin theElectoralRoll couldnot thereforebe thesubject matterof enquiryexcept in accordancewith the provisionsof theActof 1950. Under s. 100(1) (d)an electioncan be declaredvoid onlyif the resultof theelection,in so far as it concernsa returnedcandidate,has beenmateriallyaffected by any non-compliancewith the provisionsof theConstitutionorof the Actof 1951orofany rules or ordersmade thereunder.Nothing could be clearerthan the ambitof this provision. It does not entitlethe court in an electionpetition to setasideany elec· tion on thegroundof non-compliancewith the provisionsof theAct of1950 or of anyrulesmadehereundewith the exceptionof s. 16. [617 El Durga Shankar Mehta v. ThakurRaglmrai ·Singh & Others, [1955] 1 S.C.R. 267; K.Sriramulu v. K. Deriah (1965)1 Mys. L. J. 676; Roop LalMehta v. DilanSingh and Others (1967)P.L.R. 618; referredto. On the evidence,no reasonswere shownfor thiscourtto differfrom thefindingsof t.he Trial Judge on the allegationsof corruptpractices. Meghra;Patodis v. R. K. Bir/a & Others; CivilAppealNo. 1094(~~ dated 10-9-1970;referred to.·. CIVIL APPELLATE JURISDICTION: Civil AppealNo. 2394of 1968. A B c ' ,. D ., Appealunder s. ll 6A of the Representatiopof thePeople ·,_ Act,1951 .from the judgmentand orderdatedJuly 24, 1968of theMysoreHigh Court in ElectionPetition No. 9 of1967.E B. S. Patil, VineetKumar and Shyalnala Pappu, for the appel lant. A. V. All1al and M.Veerappa, for respondentNo, 1. The Judgment of the Courtwas delivered by GROVER, J.-This _is an appeal froma judgmentof the Mysore Higlr Courtdismissingan electionpetition which had been filed bytwoelectorschallengingthe election of respondent No. 1 B. D. Jattifromthe JamkhandiConstituencyat the GeneralElectionsheld in 1967. Thelast datefor filingof nominationpapers was January 19,1967.The pollingtook placeon February2, 1967and the result was declaredon February22, 1967. '.lhe onlycontesting candidateswere respondentNo. 1 andrespondentNo. 2 M.M. Shivappa. RespondentNo, 1 secured24,578 votes whereas res pondentNo. 2 got21,261votes. The electionpetition was filed F G H P.R. BELAGALI v. B. D. JATTI (Grover, J.) 613 A on April 6, 1967 by I. S. Ghattarkiand P. R. Belagali who were electors in the JamkhandiConstituency.Each of themhad acted as an electionagent of respondentNo. 2. PetitionerNo. 1 Ghattarki was hiselectionagent from February 10, 1967 till the lastdateof theelectionand petitionerNo. 2 Belagali acted as an electionagent from January19, 1967to February 4, 1967. B The trialof thepetitioncommencedon Decerr.ber 11, 1967 and after certain witnesses had beenexaminedon February 1, 1967 petitioner No. 1, Ghattarki,made an applicationpraying forpermissionto withdrawfrom the petition "for all purposes". PetitionerNo. 2 objectedto his withdrawal.The learned judge dismissed the applicationof petitionerNo. 1 onthegroundthat s. 110(1) of theRepresentation of thePeopleAct, 1951,hcrein- C after oalledthe "Act", dil 111ot permitwithdrawal by one petitioner withoutthe consent of his co-petitioner. It has, however, been noted by thelearnedjudge that both the petitionerscontinued to be representedby one counsel Shri B. S. Patil. D E F It maybe mentioned at thisstagethat the election petition is a very long documentand thatthe evidence which has been prod~ by the parties is also volum,inuous. Thejudgment of the learnedjudge consistsof 227printed pa~. A number of . issues were framed butthe controversybefore us has been cOafined only to certainpoints. The first questionwhich falls for consideration arises outof issue No.1 which consi~ts ofthreeclausesand was framed in the follOing terms :- "1 (a) Do the petitionersprove that jie 1st respon dent was notan electorat all and thereforenot qualifiedto standfor election ? (b)Arethepetitionersprecluded from questioning the validity oftheentryof thenameof the 1st respondentas electorin theElectoralRoll relat ingto 1 amkhandiConstituency ? ( c) Has this Courtno jurisdictionto go into the said questionof validity ?" G It was held by the learned trial judge that the petitioners(in the electionpetition)were not precludedfrom questioningthe validity of the entry of thenameof respondentNo. 1 as an elector in the ElectoralRoll relatingto 1 amkhandiConstituencyand thatthe courthad the jurisdiction to go intothatquestion. It was, how ever,foundon a consideration of theevidence tbat the petitioners Hhad failed to provethat respondentNo. 1 was not an electorand Jf8S not qualified to standfor electionto aseatin the MysoreLegislative assembly from Jamkhandi constituency. 12-L436SupCIJ71 ·614 SUPREME COURT REPORTS [1971) 2 S.C.R. If the view of thetrialjudgethat the courthad the jurisdiction in an electionpetition to gointothe question of thevalidityof an entry in anElectoralRoll is erroneousand if thecourtwas pre cludedfrom decidingthis matterit will be altogetherunnecessary to consider theevidenceled forthe purposeof clause (a) of issue No. l. Theprincipalallegatiossof thepetitionerson issueNo. 1 (a) werethat respondentNo. 1 hadceasedto bea personordinarily residentwithin the constituencyof Jamkhandiduring the period relevantto thel 967 GeneralElections. It was further asserted thatby Jong stayin thecityof Bang11lore the nameof respoadent No. l hadbeenentered in the Electoral Rollrelatingto themuni cipal [irca of th.at cityandthatrespondentNo. 1 withthe object ofgettinghis nameenteredin theRollof Jamkhandi Constituency hadeithergot his namedeletedfrom the BangaloreRoll or had tried to get it changedfrom that Rollto the Roll of Jamkhandi Conslituency. In orderto decidethe jurisdictionand powersof thecourt trying an electionpetition under the provisionsof theActto deter minethe validityor legalityof anentryin anElectoralRoll we shall haveto lookat therelevantprovisionsof theAct.The Representationof thePeopleAct J.950, to becalledthe HAot ot 1950" and the Constitution.Part II of the Actdealswith the qualificationsand disqualificationsfor Membershipof Parliament and State Legislature.Section 5 ( c) is as follows : 'A personshall not be qualifiedto be chosen to fill a seat in thelegislativeassembly of a Stateunless. (a) ........................... . (b) ........................... . I c) in thecaseof anyotherseat he is an electorfor anyAssemblyconstituencyin that State." The word "elector" is defined bys. 2(1)(e) tomeanin relation A B c D E F toa constituencya personwhose name is enteredin theElectoralG Rollof th;it Constituency for thetimebeing in forceand who i~ not subjectto any of thedisqualificationsmentioned in s. 16 of the Actof 1950.Chapter III of theActcontainsdisqualificationsfor Membershipof Parliamentand StateLegislatures.According to s. 7 (b) "disqualified" means disqualifiedfor beingchosen as and forbeinga Memberofeither Houseof Parliament or oftheLegis- II. lativeAssemblyetc. Sections 8 to 11 give thedisqualifications on convictionfor certainoffences,for commissionof corruptpractices and other matters which need not be noticed.The positionunder B c D E p G H p. R. BELAGALI v. B. D. JATTI (Grover, l.) 615 the Act,therefore, is that in orderto standfor electionto a legisla tive assembly ofa State a person .must bean electorfor any assem blyconstituency in that State andhe mustnot be subjectto any of thedisqualificationsmentioned in s. 16 of the Act of 1950 or the disqualifications given inChapterIII of theAct.The Act of 1950 was meant to providefor the allocationof seats and the delimita tionof constituenciesfor thepurposeof electionsto the House of the People andthe legislatures_ of States, the qualificationsof Yoters at suchelections,the preparationof Electoral Rolls_ ......... . andmattersconnectedtherewith. Part Ill thereof containsprovisionsfor ElectoralRolls for assembly constituencies.According to s. 15 for every constituency there shall beanElectoralRoll which shall be prepared in accor dance with theprovisionsof theActof 1950 under the superinten dence,directionand controlof theElection Commission. Se.:tion 16 is in these tem1s :- S. 16. "Disqualificationsfor registrationin an electoral fl':l.- (1) A personshall be disqualifiedfor registration in an electoral roll if he- (a) is not a citizenof India;or (b) is ofunsoundmind and stands so declared by· a competentcourt; or (c) is forthe time beingdisqualified from voting underthe provisionsof any law relating t0 corrupt practices.and other offences in con nection with elections. (2)Thenameof 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 conditionsof registrationin the Ele.:.:or11l Roil. It providesthat 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 entitledto be registered in the ElectoralRoil for that constituency. Section 20 deals with the meaningof "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 orderof t11e E.Ic~toral Registration Officer under s. 22 or-"· 23. Under s. 30 no c1v1! court'hall ha'e jurisdiction to entenain or 616 SUPREME COURT REPORTS [1971] 2 S.C.R. adjudicateupon any questionwhether any personis oris not entitledfor registrationin an Electoral Roll for a constituency. Thereare elaboraterules whichhave been promulgatedfor pre parationand revisionof theElectoral.Rolls, namely,Electors' Rules 1960. It maybe notedthat the conditionsabout being ordinarilyresident in a constituencyfor thepurposeof registra tionare meantfor thatpurposealone and havenothing to do withthe disqualificationsfor registrationwhich are prescribed by s. 16 of theActof 1950 whichalone are relevant to thedefinition ofan "elector" as givenin s. 2 ( 1 )( e) of theAct.The entire schemeof theActof 1950 and the amplitudeof itsprovisions showthat the entriesmade in an ElectoralRoll of a constituency canonly be challengedin accordancewith the machinery pro videdby it andnot in anyothermanner or beforeany otherforum unlesssome questionof violationof theprovisionsof the Constitu tion is involved. Article 17 3oftheConstitutionrelates to qualificationsfor membershipof the State legislature. It reads :- Art.173 "A personshall not be qualifiedto be chO'ien to fill a seatin theLegislatureof a State unless he- · (a) is a citizenof India,and makesand subscribes beforesome personauthorisedin thatbehalfby theElectionCommissionan oath or affirmation accordingto theformset outfor thepurpose.in theThird Scbedule; (b) is, in thecaseof a seat in theLegislativeAssem .. b!y, not lessthantwenty-fiveyears of ageand, inthecaseof a seatin theLegislative . Council, not less thanthirtyyears of age;and A B c D E (c)possessessuch otherqualificationsas maybeF · prescribedin thatbehalfby or underany law madeby Parliament."· 'I:he qualifications, as mentionedpreviously,have been prescribed bys. 5 of theAct.Condition (b) ins. 19 of theActof 1950 of beingordinarilyresident in a constituencyfinds no placein any oftheprovisionsof theAct or in Art.173 of theConstitution. Thedecisionof thisCourtin Durga Shankar Mehta v. Thakur Raghuraj Singh & Others(1) involvednon-compliancewith the provisionsof clause (b) of Art.173 and in caseof a candidate who wasconstitutionallyincapable of beingreturnedas a memberit washeldthat the ElectionTribunalcould declarehis election to be void by applyingsub-s. (2) ( c) of s. 100 of theAct. The present case is clearlynot of thatkindand no violation or in- (1) [1955] l S.C.R. 267. G H A B c D E F G H p, R. BELAGALI v. B. D. JATTI (Grover, 1.) 617 fringe:ment of anyprovisionof Art.173 has been or could be established. Theotherprovisionsrelating to electionare contained in Part XV of theConstitution.Article 324 dealswith the superinten dence, directio_n andcontrolof electionswhich are vested in the ElectionCommission.Article 3 25 declares that no person shall be ineligible forinclusionin an ElectoralRoll on account only ofreligion,race, caste,sex or any of them. Article 326saysthat theelectionsto theHouseof the People andthe Legislative Assem blies ofStatesshall be on thebasisof adultfranchise.Article 327 gives power to the Parliamentto makeprovisionswith respect toelectionsto Legislatures.Article 329 barsthe interferenceof courtsin electoralmatters.By virtueof thatArticle no election shallbe calledin questionexcept by an electionpetition. It is abundantlyclear that in thepresent Rise thequestionwhether respondentNo. 1 wasordinarilyresident in J amkhandi consti tuency during the materialperiod and wasentitled to be registered intheElectoralRoll couldnot be the subjectmatter of enquiry exceptin accordancewith the provisionsof theActof 1950. The groundson whichthe electioncan be declared to be void underthe Actare set outin s. 100 of theAct.Clause( d) is "that the result oftheelection,in sofaras it concernsa returnedcandidate,has beenmaterially affected-(i) .............. (ii) ........... . (iii). . . . . . . . . . . . (iv) by anynon-compliancewith the pro· visionsof theConstitution or of thisActor ofanyrules or orders madeunderthis Act." Nothingcould be clearer than the ambit ofthisprovision. It doesnot entitlethe courtin an election peti tion to set asideany electionon thegroundof non-compliance withthe provisionsof theAct Of 1950 or of anyrulesmade there under,with the exceptionof s. 16. Thelearnedtrial judgedoes not appearto havefully ond properlyappreciatedthe correctratio and truedetennination of the pointsinvolved.in Durga Shanker Melita's(') case. The di~ tinction is too obvious to bearrepetition. It seemsthat a Bench decisionof the-Mysore High Courtin K. Sriramulu v. K. Deviah( 2 ) wasdistinguishedwithout any justificationby thelearned judge. It- was clearlylaid thereinthat in anelectionpetition the correctnessof theElectoralRoll cannotbe goneinto.The of the case we makeno order as to costsin this Court. R.K.P.S. Appeal dismissed. B c D E F |
