TMI Blog1973 (8) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents 2. 3 and 5 void. The main ground urged in the election petition for declaring the election of respondents 4 and 5 in the election petition' (respondent 5 and the appellant respectively here) void-with which alone we are concerned in this appeal-was that they were not ordinarily resident in the area covered by any parliamentary constituency in the State of Gujarat and that their names had been illegally entered in the electrol roll of the respective constituency in Gujarat and as they were not 'electors' within the meaning of s. 2(1)(e) of the Representation of People Act, 1951, they were not eligible to become candidates in the election. Respondent No. 1 also raised several other contentions in support of the declaration prayed for. The court framed issues No. 1 to 5 and tried them preliminarily and entered findings thereon in favour of respondent no. 1 Mr. Raju. In this appeal, the appellant challenges the correctness of the findings on issues no. 1 and 5. These issues are : 1. Whether there is misjoinder of parties and causes of action? 5. Whether this Court has jurisdiction to decide whether the entries in the electoral roll regarding res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lature 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. Article 327 states that subject to the provisions of the Constitution, Parliament may by law make provision 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 including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. Section 3 of the 1951 Act provides for qualification for membership of the Council of States : A person shall not be qualified to be chosen as a representative of any State or Union Territory in the Council of States unless he is an elector for a Parliamentary constituency in that State or territory . Section 2(1) (e) of that Act define,,; an 2(1) (e)-'elector' in relation to a constituency means a person whose name is entered in the electoral roll of that constituency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Krishnamurthy (A.I.R 1963. S. C. 458.) this Court was as concerned with the provisions of the Mysore Village Panchayat and Local Boards Act, Act 10 of 1959. Under the provisions of that Act, the relevant part of the electoral roll of the Mysore Legislative Assembly was deemed to be the list of voters for the panchayat constituency and the secretary of the panchayat bad to maintain' a duty authenticated separate, list of voters of the said constituency. It was because of this that this Court was required in that case to consider the question of the applicability of the provisions of the 1950 Act. Sub ba Rao, J. in delivering the judgment of the Court said that no civil court has jurisdiction to question the legality of any decision taken by or under the authority of the electoral registration officer as the terms of S. 30 of the 1950 Act were clear that the action of the registration officer in including the name of the appellant there in the electoral roll, though illegal, cannot be questioned in a civil court and that it could be rectified only in the manner prescribed by law or by resorting to any other proper remedy. This Court in effect held that the Court trying an elect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion petition had jurisdiction to go into the question. The learned Judge, in the course of the judgment, was careful to add that the right to vote being purely a statutory right, the validity of any Vote IIas to be examined on the basis of the provisions of the relevant Acts and that in view of s.30 of the 1950 Act, Civil Court,-, 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. He also said that sections 14 to 24 of the 1950 Act are integrated provisions which form a complete Code by themselves in the matter of preparation and maintenance of electoral rolls and that entries found in the rolls are final and that they are not open to challenge either before a Civil Court or before a tribunal which considers the validity of any election . In P. R. Belagali v. B. D. Jatti(A.I.R. 1971 S.C. 1348), the question. was about the validity of the election of B. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not to register persons as voters resulting from violation of the mandatory provisions of the relevant statutes might lead to improper reception, refusal or rejection of a vote and would, therefore, be a ground for' avoiding the. election under s. 100 (1) (d) (iii) of the 1951 Act. Mr. Raju, respondent No. 1 submitted that the right of a citizen who fulfils the requirement of law as to age and who is not subject to any disqualifications as provided by law passed by Parliament to be registered as a voter, is a constitutional right granted by article 326 and the remedy to enforce the right in a civil court cannot be taken away by Parliament by law and therefore s. 30 of the 1950 Act is ultra vires the Constitution. He also said that if the decision of the registering officer regarding ordinary residence in a Constituency were to be final on the question of the entitlement of a citizen to be entered in the electoral roll and if he is to have no recourse to a civil court in case the officer decides the question wrongly the rule of law which is a fundamental postulate of our democratic polity would be seriously impaired and, therefore, implied ouster of the jurisdiction of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be enforced or the remedy for enforcing it. We think that the 1950, Act provides a complete code so far as the preparation and maintenance of electoral rolls are concerned. The Act enacts a complete machinery to enquire into claims and objections as regards registration as voter and for appeals from the decision of the registering officer (see sections 21 to 24 of the 1950 Act both inclusive). Elaborate rules have also been made for inquiry into claims to be registered as voters and for considering and disposing of objections thereto (see rules 12 to 24 of the Registration of Electoral Rules). The definition of the word 'elector' in S. 2(1)(e) of the 1951 Act would indicate that a person whose name is actually entered in the electoral roll for the time being and who is not subject to any of the disqualifications in s. 16 would be an elector. Any person who is a citizen of India and who has attained the age as prescribed by law, subject to the minimum as provided in article 326, is entitled to be registered as a voter in the roll of electors. This is the positive way of expressing eligibility for registration as a voter. He should not also be subject to any of the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents 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, can be gone into by-the High Court in trying an election, petition. We think that neither the decision of this Court in Baidyanath Panjiar v. Sita Rain Mahto (supra) which took the view that violation of s. 23(3) of the, 1950 Act in entering or deleting the names of persons in the electoral rolls after the last date for making nomination relates to lack of power nor the decision in Wopansao v. N. L. Odyuo (supra) and others which also suggests that where there, was lack of power, the question can be gone into by the court trying an election petition, can, by analogy, be extended to an entry in the electoral roll on the basis of a wrong adjudication of the question of ordinary residence. Though the dividing line between lack of jurisdiction or power and erroneous exercise of it has become thin with the decision of the House of Lords in The Anisminic Case(1967 (3) W. L. R. 382.) we do not think that the distinction between the two has been completed wiped out. We are aware of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s strengthened by the fact that under s. 100 (1) (d) (iv) of the 1951 Act the result of the election must have been materially acted noncompliance-with the provisions of the Constitution or of that Act or of the rules, orders made under that Act in order that High Court may declare an election to be void. Non-compliance with the provisions of s. 19 of the 1950 Act cannot furnish a ground for declaring an election void under that clause. We, therefore, return to the question whether these respondents were not qualified or were disqualified to be chosen to fill the seat under the Constitution or the 1950 Act or the 1951 Act. As we said, there was no allegation that they were disqualified under s. 16 of the 1950 Act. Nor was there any ground taken that they were not qualified in the sense of their being not citizens or under the age as required. As their names were entered in the electoral roll and as they did 'not suffer (1) S. A. Smith. Judicial Review of Administrative Action , 2nd Edn., p. 9810-3S2 Supi. C 1/74 from any of the disqualifications mentioned in s. 16 of the 1950 Act, they were electors within the definition of the term in s. 2(1) (e) of the 1 951 Act. They were, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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