TMI Blog2000 (8) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent. 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. On 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintainability of the election petition was required to be decided by the Court. Shri 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. What 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 affect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (2) No 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). (3) No 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. (4) No 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. (5) No 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. Provided that nothing in this sub-section shall apply to a person subjected to preventive detention unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication 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. [(4) 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 subsection 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rine 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 disqualific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oral 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 dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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. In a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of a House or Institution contemplated by Constitution as enabling democratic functioning of the country. Two Full Bench decisions of two High Courts have come to our notice. In Ghulam Mohiuddin Vs. Election Tribunal for 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. M.L. Chaturvedi, 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. noticed the well-settled practice in England having been adopted in the Represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate, 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 officer. 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. Such 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. Such 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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