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SHAMDEO PRASAD SINGH Versus NAWAL KISHORE YADAV

2000 (8) TMI 1122 - SUPREME COURT OF INDIA

C.A. 376 OF 1999 - Dated:- 28-8-2000 - CJI , R.C. Lahoti and K.G. Balakrishnan, JJ. R.C. Lahoti, J. L...I...T.......T.......T.......T.......T.......T.......T..J 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 .....

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upport 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 22.1 .....

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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 .....

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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. Sharma, 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, obje .....

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se 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 re .....

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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 t .....

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appeal under Section 116A of the 1951 Act. The sole question arising for decision in this appeal is whether the averments made in the election petition made out a ground for declaring election to be void within the 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. Sub-section (1) of Section 100 of the 1951 Act provides as under:- 100. Grounds for declaring election t .....

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on agent; or (c) that any nomination has been improperly rejected; or (d) 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-comp .....

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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. 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 enr .....

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self 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 .....

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e 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 .....

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fications 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 .....

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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 th .....

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ub-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 signif .....

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ith 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). The 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 Coun .....

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le 171. (2) xxxx xxxx xxxx xxxx 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 S .....

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ry 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 institutions specified under clause (b .....

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also. Sections 16 and 19 provide as under:- 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 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. (2) The name of any person who becomes so .....

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is 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. Shall 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 being registered in more than one electoral roll. Section 21 prescribes the manner for preparation and revision of electoral rolls. Correction of entries in el .....

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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 registrat .....

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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 electora .....

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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 .....

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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 el .....

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e 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 .....

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t 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-compl .....

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t 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 : The 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 .....

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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. In a democracy and for that matter in an election, perennial vi .....

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nstituencies 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 .....

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and Ors. -(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. ..that 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 .....

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ns). 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. Bringing 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 co .....

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or 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 f .....

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ituency; 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. The Full Bench decision of Allahabad High Court has been followed by the Punjab & Haryana High Court in Rool Lal Mehta Vs. Dhan Singh - 1967 (69) PunLR 618. The question arising for de .....

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(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 election petition. We 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 same. One of 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 .....

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lude inclusion), transposition or deletion of entries in electoral rolls are all taboos in this interregnum. It is 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 .....

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