9911796707
TMI Blog2003 (9) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... on 10.05.2001. The first, second, third and fourth respondents herein contested the said election. The appellant herein was the election agent of the second respondent. The said election petition came to be filed in the following circumstances : A preliminary electoral roll (mother roll) was published in 1999 which was revised on 1.1.2000 and 1.1.2001 purported to be in terms of continuous and special revision scheme. One revision was carried out between 15.3.2001 and 18.3.2001 and another between 21.4.2001 and 23.4.2001. The final electoral roll was published on 23.4.2001. Despite the fact that the last date of acceptance of nomination was 3 p.m., allegedly, the final electoral roll was published at 8 p.m. on 23.4.2001. The electoral roll consisted of 1,52,225 voters out of which 1,05,437 voters exercised their franchise. The result of the election was declared on 13.5.2001. The first respondent was declared elected having secured 48,886 votes whereas the second respondent secured 48.099 votes. The third and fourth respondents herein obtained 7,345 and 1, 107 votes respectively. The winning margin was, thus, only 787 votes. In the election petition, the appellant herein all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after 30.4.2001? (7) Whether may of the said 6828 ineligible voters have voted for the 1st respondent affecting the declaration of results? (8) Relief and costs? FINDINGS OF THE HIGH COURT : The preliminary issues were decided in favour of the appellant by an order- dated 24.10.2001. The said order is not in question in this appeal. The Tribunal dismissed the election petition holding : (1) Although irregularities had been committed in preparation and publication of the electoral roll, as the appellant herein had not been able to prove that the legal requirement contained in Section 100(1)(d) of the 1951 Act was fulfilled, the election of the first respondent cannot be set aside: (2) P.W. 1 and P.W. 2 who were examined on behalf of the appellant herein to show that their names were not included despite request were not relied upon on the ground that they had made the said request after 23.4.2001 and as such their request had rightly been denied; (3) The appellant did not produce an authenticated copy of the electoral roll in full form to find out the alterations which according to the appellant, were made subsequent to 3 p.m. nor produced any such altered roll; (4) Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the learned counsel, the High Court misdirected itself in passing the impugned judgment insofar as it failed to take into consideration that the electoral roll could not have been published at 8 p.m. on 23.4.2001. The learned counsel took us through the evidences of P.W.I, P.W.2, P.W.6, P.W. 8 and some other witnesses for the purpose of showing that the entire proceeding was wholly illegal and, thus, the election in its entirety should be set aside. The learned counsel would contend that the High Court should have exercised its suo motto power of directing recounting of votes so as to exclude the illegal ones, having regard to section 62 of the 1951 Act. Reliance in support of the aforementioned contentions has been placed by the learned counsel for the Appellant on Baidyanath Panjira v. Sita Ram Mahto and Others, AIR (1970) SC 314, Baidyanath Panjira v. Sita Ram Mahto and Others, [1969] 2 SCC 47, Narendra Madiyalapa Kheni v. Manikrao Patil and Others, [ 1977] 4 SCC 16, Ramji Prasad Singh v. Ram Bilas Jha and Others, [1977] 1 SCC 260; Bashir Ahmad Magrey v. Ghulam Quadir Mir and Others, [1977] 1 SCC 285, I. Vikheshe Sema v. Hokishe Sema, [1996] 4 SCC 53, D.B. Rajn v. H.J. Kant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rath (Smt.) v. Maheshwar Mohanty (Smt.) and Others, [1999] 3 SCC 357, Tek Chand v. Dile Ram, [2001] 3 SCC 290 and Santosh Yadav v. Narender Singh, [2002] 1 SCC 160. Mr. Venugopal in his usual fairness has drawn our attention to a decision of three-Judge Bench of this Court in Chhedi Ram v. Jhilmit Ram and Others, [1984] 2 SCC 281 wherein this Court had set aside the election, having regard to margin of 373 votes vis-a-vis wasted votes being 6, 110 (the difference being 20 times). However, it was pointed out that the said decision was held to have been rendered in the peculiar fact situation of the case. QUESTIONS : (1) Whether addition or deletion of names after the last date fixed for filing of nominations would invalidate the entire election? (2) Whether an election petitioner must plead and prove as to how far and to what extent such illegal addition or deletion of the names of voters had materially affected the election? STATUTORY PROVISIONS : Before embarking upon the questions referred to hereinbefore, we may look to some statutory provisions. The 1950 Act was enacted to provide allocation of seats in and the delimitation of constituencies for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) should be transposed to another place in the roll on the ground that the person concerned has changed his place of ordinary residence within the constituency, or (c) should be detected on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll, the electoral registration officer shall, subject to such general or special direction, if any, as may be given by the Election Commission in this behalf, amend, transpose or delete the entry : Provided that before taking any action on any ground under clause (a) or clause (b) or any action under clause (c) on the ground that the person concerned has ceased to be ordinarily resident in the constituency or that he is otherwise not entitled to be registered in the electoral roll of that constituency, the electoral registration officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him. Section 23 provides as under : 23. Inclusion of names in electoral rolls. - (1) Any person whose name is not included in the electoral roll of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer Section 62 reads as under : 62. Right to vote - (1) No person who is not, and except as expressly provided by the Act, every perosn 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, not withstanding that his name may have been registered in the electoral roll for the constituency more than once, and if he does so vote, all his votes in that constituency shall be void. (5) No person shall, vote at any election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reto. Rule 12 reads as under : 12. Period for lodging claims and objections.- Every claim for the inclusion of a name in the roll and every objection to an entry therein shall be lodged within a period of thirty days from the date of publication of the roll in draft under rule 10, or such shorter period of not less than fifteen days as may be fixed by the Eelction Commission in this behalf : Provided that the Eelction Commission may, by notification in the Official Gazette, extend the period in respect of the constituency as a whole or in respect of any part thereof. Rule 13 provides that every claim shall be made in Form No. 6 and signed by the person desiring his name to be included in the roll. Sub-rule (2) of Rule 13 povides that every objection to the inclusion of a name in the roll shall be in Form No. 7 and preferred only by a person whose name is already included in that roll. Sub-rule (3) of Rule 13 provides that every objection to a particular or particulars in an entry in the roll shall be made in Form No. 8 and preferred only by the person to whom that entry relates. Rule 14 to 20 provides for the mode and manner in which claims and objections and inqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , or is otherwise not entitled to be registered in that roll, the registration officer shall make every endeavour to give him a reasonable opportunity to show cause why the action proposed should not be taken in relation to him. Rule 22 provides for final publication of roll. Clause (b) of sub-rule (1) mandates the registration officer to publish the roll, together with the list of amendment, by making a complete copy thereof available for inspection and displaying a notice in Form No. 16 at his office. Sub-rule (2) of Rule 22 provides that on such publication, the roll together with the list of amendments shall be the electoral roll of the constituency. Rule 25 provides for revision of rolls. Rule 26 provides for correction of entries and inclusion of names in electoral rolls. In terms of the said rule, a claim or objection must be filed in duplicate, one copy of which shall be posted in some conspicuous place in the office of the registration officer together with a notice inviting objections thereto within a period of seven days from the date of such posting. Sub-rule (4) of Rule 26 provides as under : (4) The registration officer shall, as soon as may be after the expir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lectoral roll after the last date fixed which indisputably having regard to the law laid down by this Court in a number of decisions would mean 3 p.m. of the date of filing the nominations. The rules referred to hereinbefore clearly lay down the procedure for filing the claims and objections and the mode and manner in which they are to be dealt with. In terms of the 1960 Rules, a claim or an objection can be entertained only at least seven days prior to the date of filing of. nominations inasmuch as such claim in Form No. 6 is to be posted on the notice board inviting objections before seven days as is required in terms of Rule 26. Claims or objections could have, therefore, been entertained at least upto 16.4.2001. P.W.I, however, states that no objection which was filed after the said date was entertained. Sub-section (3) of Section 23 of 1950 Act is mandatory : sub-section (3) of Section 23 ex facie is imperative in character. It has been couched in a negative language. The word 'shall' has been used. What is thereby, however, prohibited is that after 3 p.m. of the date specified for filing of the nomination no correction by way of amendment, transposition or de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1950 Act, there cannot be any doubt that any order passed immediately before 3 p.m. on 23.4.2001 would be valid. The very fact that sub-section (3) of Section 23 prohibits any amendment, transposition or deletion of any entry after the last for making nominations for an election in that constitutency is a pointer to the fact that till 3. p.m. of the date specified for filing nominations, directions for any amendment can be issued. Any order passed on the claims or objections filed in terms of Section 22 of the Act read with relevant provisions of the 1960 Rules would relate back from the date of publication of the electoral roll. Any amendment, transposition or deletion made in the electoral roll pursuant to or in furtherance of the directions made by the competent authority in the electoral roll upto 3. p.m. of the specified date for filing nominations would, therefore, be valid. It would not, therefore, be correct to contend that any publication of final roll which is made after 3 p.m. on 23.4.2001 would render the entire electoral roll invalid in law. In terms of sub-section (3) of Section 23 of the 1950 Act what would be invalid is the addition or deletion of names which have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for which the same had been used. In the instant case the 1960 Rules do not fix any time for publication of the electoral rolls. On the other hand Section 23(3) of the 1950 Act categorically mandates that direction can be issued for revision in the electoral role by way of amendment in inclusion and deletion from the elelctoral roll till the date specified for filing nomination. The electoral roll as revised by reason of such directions can therefore be amended only thereafter. On the basis of direction issued by the competent authority in relation to an application filed for inclusion of a voter's name, a nomination can be filed. The person concerned, therefore, would not be inconvenienced or in any way be prejudiced only because the revised electoral role in Form 16 is published a few hours later. Result of filing of such nomination would become known to the concerned parties also after 3.00 p.m. Furthermore even if the statute specifies a time for publication of the electoral roll, the same by itself could not have been held to be mandatory. Such a provision would be directory in nature. It is well-settled pinciple of law that where a statutory functionary is asked to perf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons smoothly made from clear pre-existing rules without intrusion of the judge's choice. See also Kanta Devi (Smt.) v. Union of India and Another, [2003] 4 SCC 753. In Shrimati Tarulata Shyam and Others v. Commissioner of Income-tax, West Bengal, [1977] 3 SCC 305; it was held that if there be a casus omissus, the defect can be remedied only by legislation and not by judicial interpretation. Rule 22(b) of the 1960 Rules cannot, therefore, be interpreted to mean that publication of the electoral roll must take place before the time of filing nomination and not thereafter. CASE LAWS OPERATING IN THE FIELD : In Baidyanath Panjiar (supra), it is stated : The question for consideration is whether it was within the competence of the electoral registration officer to amend the electoral rolls after the last date for making the nomination was over. In Baidyanath Panjiar (supra), upon considering the scheme of the Act and the principles underlying thereunder the court held that sub-section (3) of Section 23 is mandatory-having regard to the provision of Section 62 of the Act. It was opined : ...In view of that provision the electoral roll referred to in Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summoned and examined in order to find out the void votes and how the said votes affected the outcome of the election. In the aforementioned situation, this Court made the following observations whereupon the learned counsel or the appellant placed strong reliance : 14. Once the High Court was convinced, and it was evident from the facts on record that a large number of void votes had been received and they could have affected the outcome of the election, then it was under a duty to have taken the next logical step which would have been to examine the votes which had been cast, exclude the void votes and then re-count the valid votes in order to come to the conclusion whether the reception of the void votes had materially affected the result of the returned candidate. Without undertaking this exercise the High Court was wrong in coming to the conclusion that the election of the appellant had been materially affected and that the same should be set aside. The said observations were made having regard to the fact that an application to that effect was filed. However, in D.B. Raju (supra), L.M. Sharma (as His Lordship then was) speaking for the Bench held that any publicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not one of the voters. In that situation the election was set aside stating : It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Unless this is done,the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned. It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective. The said judgment is clearly distinguishable and cannot be held to have any application in the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esult. The question as regard the applicability of Section 100(l)(d)of the 1951 Act was not examined therein nor in the facts and circumstances obtaining therein it was necessary to be examined. Effect of Section I00(1)(d) of 1951 Act : The appellant herein has filed an election petition for declaring the election of the respondent herein as void. For obtaining the aforementioned relief, it was necessary for him to show that amendment, addition or deletion in the electoral roll after 3.00 p.m. on 23.4.2001 had indeed materially affected the result of the election. The law as it stands, in our opinion, would require a strict pleading and proof of the factors enumerated in Section 100 of the 1951 Act for obtaining a declaration that the election was a void one. Such a declaration can only be made upon consideration of the materials brought on records. Th election tribunal will have jurisdiction to issue such a direction only in the event one or the other factors enumerated in the sub- clauses contained in Sub-Section (1) of Section 100 of the 1951 Act are fulfilled and not otherwise. The appellant herein has not placed any material to show as to names of how many persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d : On the material on record we agree with the High Court that it has not been shown that the result of the election had been materially affected by the casting of votes by persons whose names were added to the electoral roll on Apirl 27, 1968 and the alleged non-voting of 15 former electors whose names had been deleted. Upon considering the pleadings in the election petition this Court opined : The High Court was rightly impressed by the omission of any allegation that all or majority of the persons whose names were included in the electoral roll for the first time in the evening of April 27, 1968, were the supporters of respondent No. 1 in the election. The learned counsel has not been able to show us any evidence which might indicate how many of the first preference votes counted in favour of respondent No. 1 were polled at Jamshadpur, Adityapur or Jugsalai respectively. On the facts and the pattern of voting it is impossible to say that there was any substantial number of votes counted in favour of respondent No. 1 which were void while those counted in favour of the petitioner were of the original electors. In Paokai Haokip (supra) this Court in no uncer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y affected. In an appropriate case having regard to the margin of difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and the proportion which such margin bears to the wasted votes, it is permissible for the court to hold that the burden of proving that the result of the election has been materially affected has been discharged. Chhedi Ram (supra), therefore, is not a decision which can be said to be an authority for the proposition that the number of votes which were liable to be rejected would itself be a barometer for the purpose of arriving at a conclusion that the burden of the election petitioner to prove the legal requirement of Section 100(1)(d) of the 1951 Act stands discharged. The said decision was rightly held to have been rendered in the peculiar fact situation of that case in Shiv Charan Sing/, (supra) and Santosh Yadav (supra) on, thus, does not constitute a binding precedent. In Santosh Yadav (supra) this Court held : The learned Senior Counsel for the appellant placed heavy reliance on Chhedi Ram v. Jhilmit Ram, [1984] 2 SCC 281 : AIR (1984) SC 146 and submitted that the ratio of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chhedi Ram case [1984] 2 SCC 281 : AIR (1984) SC 146 was decided, it cannot be held that merely because the number of wasted votes bears a high degree of proportion to the margin of votes between the winning candidate and the next highest candidate, an inference must always be drawn that the result of the election was materially affected insofar as the returned candidate is concerned. There must be definite evidence available before the court enabling an inference being drawn as to how the wasted votes would have been distributed amongst the contesting candidates. The court cannot conjecturise or return findings on surmises. The view taken by this Court in Vashit Narain Sharma (supra) has consistently been followed also in J. Chandra Sekhara Rao, Uma Ballav Rath (Smt.), Tek Chand and a recent decision of this Court in Harsh Kumar v. Bhagwan Sahai Rawat and Others, (2003) 6 SCALE 599. The appellant herein has not been able to show that names of how many persons were included after 3 p.m. on 23.4.2001 and how they have exercised their right of franchise. He has also failed to show by adducing any evidence that those persons whose names had been omitted would have voted for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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