TMI Blog1977 (7) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court on the score of corrupt practice and the consequential disqualification of the rival candidate i.e., the appellant before us. He was entitled to press that part of his case and so we agreed to hear both sides extensively thereon. However, hours of argument after, we were back to square one. At this stage, some relevant facts and circumstances need narration. The Karnataka Legislative Council has, in its composition, some members elected from the local authorities constituencies. One such member is elected by the local bodies of Bidar district and the specific election that falls for decision was held on May 12, 1974. According to the calendar for the poll contemplated in s.30 of the Representation of the People Act, 1951 (hereinafter called the 1951 Act), the last date for presenting the nominations was appointed as April 17, 1974. Section 33(1) requires that each candidate shall deliver to the returning officer a nomination paper as set out in the section 'between II o'clock in the forenoon and 3 o'clock in the afternoon'. The appellant and the first respondent did file their nominations in conformity with the law; their scrutiny over, they entered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elp the judge do, effective justice between parties and the disputants have faith in the intelligent impartiality and full opportunity so necessary for the success of the rule of law. In election proceedings where the whole community is silently present and the controversy is sensitive and feelings suspicious, the principles of procedural rectitude apply a fortiori. The judge is the guardian of processual justice and must remember that judgment on judgment belongs, in the long run, to the people. We state this stern proposition here not merely because a forensic stitch in time saves cassational nine but because courts are on continuous trial in a democracy. In this case we are not satisfied that either party has suffered in substance and procedural breaches, unless they spell unmerited prejudice, may be brushed aside at the appellate level. Having said this, we hasten to add that had not the learned judge uncovered the suspect happenings sinisterly hovering around the last day for finalising the electoral roll, the dubious doings of the political government in a seat-hungry setting might not have been ventilated for public edification. The electoral events brought out in evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was therefore keen interest in incorporating in the electoral roll the members of the Taluk Development Board, Bidar (for short, the Bidar Board). The election to the Bidar Board had taken place years ago, 11 of them having been elected way back in 1968 and 8 later. The election of the 11 members had been duly notified in 1968 but the Board itself stood suspended, an Administrator having been appointed to run its affairs. 8 members who had been later elected to the Board landed up in the High Court on account of writ petitions filed by their rivals. Stay had been granted by the High Court and this led to an absence of 2/3 of the total members being able to function, statutorily necessitating the appointment of an Administrator. Long later the High Court disposed of the writ petitions whereby 3 returns were set aside and 5 upheld. The arithmetical upshot of these happenings was that there were 16 members duly elected to the Bidar Board, and the High Court having disposed of the writ petitions in June 1972, the local body could have been liberated from the bureaucratic management of an Administrator and allowed to function through elected representatives. All that was needed to v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment issued another notification extending the term of office of these members. So the elective interest of the candidate of the party-in-power could be promoted only if three or four quick administrative steps were taken. Firstly, there was to be a notification ending the Administrator's term over the Bidar Board. Secondly, there was to be a notification extending the term of the 11 members elected in 1968. Thirdly, there was to be a notification of the election of the 5 members whose return had been upheld in the High Court in June 1972. Fourthly, the electoral roll had to be amended by inclusion of these 16 names. If these steps were duly taken, 16 additional members would become electors and the party-in-power (if these electors be-longed to that party or were under its influence) could probably expect their votes. The poll results show that the contest was keen and these 16 votes would have been of great moment. In this high-risk predicament, long bureaucratic indolence in issuing notifications and political indifference to the functioning of local bodies produced a situation where the elected roll did not contain the names of the 16 members of the Bidar Board. Only a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the registration officer supplements the electoral roll by including 16 more names, without getting the gazette notification. We have no doubt, as we will presently explain, that this inclusion is invalid, but what we are presently concerned with is the protracted inaction for years of the State government in issuing simple notifications to resuscitate the Bidar Board and the sudden celerity by which a quick chase and spurt of action resulting in a Minister's endorsement, the registration officer's telegram, Secretariat hyper busyness, the unusual step of an Under Secretary himself journeying with government orders to be delivered to the registration officer, the electoral registration officer hastening to amend the, electoral roll slurring over the legal requirement of a gazette notification and making it appear that everything was done on the 17th before mid-night, and a few other circumstances, make up a complex of dubious doings designed to help a certain candidate belonging to the partyin-power. The officers had no, personal interest as such and, in fairness, we must state the High Court has exonerated them of any oblique conduct to further their own interests. We w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dar Board elections were substantially over in 1968 and were more or less complete in 1972 and yet the necessary notifications in the gazette, which are the statutory precondition for the local body to be legally viable, were, for years, not published and, when the critical hour for the electroal list to be finalised fell at 3 p.m. on April 17, 1974, the government and its officer,,, went through exciting exercises unmindful of legal prescriptions and managed the illegitimate inclusion of 16 names in the electoral roll. We hope that the civil services in charge of electoral processes which are of grave concern for the survival of our democracy will remember that their masters in statutory matters are the law and law alone, not political superiors if they direct deviance from the dictates of the law. It is never to be forgotten that our country is committed to the rule of law and therefore functionaries working under statutes, even though they be government servants, must be defiantly dedicated to the law and the Constitution and, subject to them, to policies, projects and directions of the political government. Be you ever so high, the law is above you -this applies to our Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and should therefore be deducted from his total tally. The appellant, who had secured 64 votes as against respondent no.. 1's 54, had only a lead of 10 votes. He slumped below the 1st respondent when 16 votes were deducted from his total. The necessary result, in the view of the High Court, was that not only had the appellant's election to be set aside but the 1st respondent deserved to be declared duly elected. This was done. An appreciation of the evidence bearing on the question as to whether the 2nd respondent i.e., the Registration officer bad acted under the appellant's oblique influence in including the additional names after the last date for such inclusion, has led us to overturn the affirmative answer from the learned trial judge. The holding that a 'corrupt practice', within the ambit of s. 123, had been committed by the appellant who was therefore disqualified under s. 8A led to two consequences. The appellant, who had won the election at the polls, lost the election in the court and, worse still, suffered a six-year disqualification. The doubly aggrieved appellant has challenged the adverse verdict and the wounded 2nd respondent (electoral regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt public purpose served by s. 23(3)? In our electoral scheme as unfolded in the 1951 Act, every elector ordinarily can be a candidate. Therefore, his name must be included in the list on or before the date fixed for nomination. Otherwise he losses his valuable right to run for the elective office. It is thus vital that the electoral registration officer should bring in the names of all the electors into the electoral roll before the date and hour fixed for presenting the nomination paper. There is another equally valid reason for stressing the inclusion of the names of all electors before the hour for delivering to the returning officer the nomination paper. Section 33(4) of the 1951 Act reads (4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the Candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls : x x x x In the light of this provision the returning officer, on receipt of the nomination paper, satisfies hims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber of electors in a constituency. But for that provision, it would have been possible for the concerned authorities to so manipulate the electoral rolls as to advanced the prospects of a particular candidate. A more trickly issue now arises, Assuming April 17, 1974 to be the last date for filing nominations (and it is so in the case), can the electoral roll be amended on that date to include additional names, but after the hour set for presenting the nomination paper ? Section 33(1) specifies inflexibly that the nomination paper shall be presented between the hours of 11 o'clock in the forenoon and 3 o'clock in the afternoon'. That means that the duration of the day for presentation of nomination papers terminates at 3 o'clock in the afternoon. If an elector is to be able to file his nomination paper, his name must be on the electoral roll at 3 p.m., on the last day for filing nominations. So the temporal terminus adquem is also the day for finalisation of the electoral register and by the same token, that day terminates atjust that hour when the returning officer shuts the door. The day is truncated to terminate with the time when reception of nominations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as too late and the law had already put in seal on the electoral roLL as it existed on the 5th April. It could not be touched thereafter, until the completion of the election. This Court, in that case, observed that it was 'impossible to accept the half-hearted claim of Shri Bose that he passed orders for inclusion of the new names on the 5th itself'. This Court was not called upon to go into the question as to what would be the legal position if the electoral rolls were actually amended at 11.30 p.m. on 5th April after the last hour for the nomination, viz., 3 p.m. on that day. This finer facet which falls for consideration in the present appeal viz., whether the 'last day' contemplated in s. 23(3) of the 1950 Act ends at 3 p.m. on that day for the purpose, or continues until mid-night did not actually arise for judicial investigation in Ramji Prasad's Case(supra). The upshot of the above interpretation is that the 16 names which have been brought into the electoral register subsequent to 3 p.m. of April 17, 1974 must be excluded from the reckoning to determine the returned candidate. The learned Judge has declared the 2nd respondent duly elected on the str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent, his return will be maintained. Any way, counsel on both sides agree that the best course will be to call for a report from the High Court in the light of the operations above indicated. The learned Single Judge who heard the case will examine the 16 ballots as directed above consistently with natural justice, record the number of votes out of the 16 each has got and forward to this Court a comprehensive and correct statement with the necessary particulars. This report shall be made within 3 weeks from the receipt of the records from this Court and the appeal shall be posted for disposal immediately the report reaches. With these-directions we dispose of the appeal pro tempore. By way of post-script, we may state that counsel for the 1st respondent submitted, after we crystallized the directions indicated above, that he was not too sure whether the 16 ballot papers could be identified. The appellant's counsel, however, asserted that there were numbers indelibly imprinted on the reverse of the ballot papers and, as such, the identification of 16 impugned votes may not present a problem. In the event of impossibility of fixing identity, a report to. that effect will be f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
