Bombay High Court
Tatyasaheb @ Raghunath vs 1. The Election Commissioner Of ... on 23 December, 2011
Bench: K.U. Chandiwal
1 EP NOS.4/2009 & 10/2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
ELECTION PETITION NO.4 OF 2009
AND
ELECTION PETITION NO.10/2009
Date of decision:23/12/2011
For approval and signature
HON'BLE MR.JUSTICE K.U.CHANDIWAL
1. Whether the Reporters of Local Papers Yes
may be allowed to see the Judgment ?
2. To be referred to the Reporter or not ? Yes
3. Whether Their Lordships wish to see No.
the fair copy of the Judgment ?
4. Whether this case involves a substantial? No.
question of law as to the interpretation
of the Constitution of India, 1950, or
any order made thereunder ?
5. Whether it is to be circulated to the No.
Civil Judges ?
6. Whether the case involves an important No
question of law and whether a copy of
the Order should be sent to Bombay,
Goa and Nagpur Office ?
Private Secretary
AGP/office/ep
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2 EP NOS.4/2009 & 10/2009
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
ELECTION PETITION NO.4 OF 2009
1. Tatyasaheb @ Raghunath s/o Omkar Patil,
Age: 57 years, Occ: Business and Social
work, r/o 38, Jaikisan Housing Society,
Bhadgaon Road, Pachora, Dist. Jalgaon.
...PETITIONER
VERSUS
((1. The Election Commissioner of India,
having office at Nirvachan Bhavan,
New Delhi.
2. The Election Commissioner,
State of Maharashtra,
having office at New Administrative Building,
Opposite Mantralaya, Mumbai 32.
3. The District Election Officer/Collector,
Jalgaon.
4. Shri V.H.Valvi,
Returning Officer
and Electoral Registration Officer,
18, Pachora Assembly Constituency,
Dist. Jalgaon. ))
(Respondent nos. 1 to 4 deleted vide Courts
order dt.26.7.2010)
5. Dilip s/o Omkar Wagh,
Age: 44 years, Occ. Agriculture,
R/o. Jai Durgamainagar Road,
Pachora, Dist. Jalgaon.
...RESPONDENTS
...
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3 EP NOS.4/2009 & 10/2009
Mr. S.M.Godsay & Mr.D.B.Thoke, Advocates,
for the petitioner.
Mr. P.M.Shah, Senior Counsel, h/f
Mr. Mr. M.S.Deshmukh, Adv., for Respondent
No.5.
...
AND
ELECTION PETITION NO.10 OF 2009
Sow.Swati w/o Pravin Patil,
Age 27 years, Occu. Social Work and
Household, r/o. H.No.456, Lothaya Jin,
Pachora, Tq. Pachora,
Dist. Jalgaon.
ig ...PETITIONER
VERSUS
(1. The Election Commissioner of India,
having office at Nirvachan Bhavan,
New Delhi.
2. The Election Commissioner,
State of Maharashtra,
having office at New Administrative Building,
Opposite Mantralaya, Mumbai 32.
3. The District Election Officer/Collector,
Jalgaon.
4. Shri V.H.Valvi,
Returning Officer
and Electoral Registration Officer,
18, Pachora Assembly Constituency,
Dist. Jalgaon. ))
(Respondent nos. 1 to 4 deleted vide
Court's order dt.26.7.2010)
5. Dilip s/o Omkar Wagh,
Age: 44 years, Occ: Agriculture,
r/o Jai Durgamainagar Road,
Pachora, Dist: Jalgaon.
...RESPONDENTS
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4 EP NOS.4/2009 & 10/2009
Mr. S.M.Godsay & Mr.D.B.Thoke, Adv., for the
petitioners.
Shri P.M.Shah, Senior Counsel, for
Mr.M.S.Deshmukh,Advocate for respondent no.5.
...
CORAM: K.U.CHANDIWAL, J.
DATE : 23/12/2011
***
Date of reserving the
judgment:15/12/2011
Date of pronouncing
the judgment:23/12/2011
ig ***
JUDGMENT:
1. Heard. In both the election petitions,
application under Order 7 Rule 11 of C.P.C. is
moved by original respondent no.5 ( now sole
respondent - the returned candidate) for
rejecting election petitions for want of
requisite legal compliances.
2. The petitioner Tatyasaheb and respondent
contested Legislative Assembly election for 18th
Pachora Assembly, Maharashtra State. The
Election Commissioner, vide notifiation dated
18th Sept.,2009, has declared election programme
for the State Legislative Assembly of Maharashtra
State, 25th Sept.,2009, was the last date for
making nominations, the polling was scheduled on
13th Oct.,2009. The petitioner Tatyasaheb secured
73,501 votes while respondent (sole) Deelip Wagh
5 EP NOS.4/2009 & 10/2009
secured 79,715 votes and, consequently, the
respondent was declared elected.
3. The petitioner canvassed, as per the
election programme published, 25th Sept.,2009,
was the date for filling in nominations, and in
the light of Section 23 of the Representation of
People Act, 1950, no addition and deletion in
electoral roll is permissible. Publication of a
supplementary list on 28th Sept.,2009, of almost
4500 names of new voters is against the
provisions of the law, impermissible, amounts to
non compliance of the provisions of the
Constitution and Representation of People Act,
1951, in the light of Section 100(1)(d)(iv) of
Representation of People Act, 1951, and on this
ground the election of the respondent is sought
to be declared as void. The petitioner contended,
inclusion of around 4500 voters after filling in
the nomination is not only illegal but it smells
of mala fides on the part of respondent no.4
( since deleted) and to usurp electoral verdict
to the respondent (now sole).
4. In Election PetitionNo.10/2009 of
Smt.Swati Patil, has claimed that inclusion of
her name subsequently in the electoral roll has
adversely influenced her chances of participating
/ contesting the election. This is more so as a
candidate in the Assembly election has to furnish
6 EP NOS.4/2009 & 10/2009
his electoral roll number in the State, to be a
contestant for such election. The illegal
inclusion, without any authority of law in the
officers of the Election Commission has resulted
in a prejudice to all the candidates who were in
the fray. This has happened only in Pachora
constituency from entire State which indicates,
purposeful design with an ulterior motive, to
help some candidate, or to cause prejudice to
some candidate.
5.
By virtue of this Court's order the
authorities of Election Commission, original
respondent nos. 1 to 4, were duly deleted by the
petitioner and the petition is contested now by
the returned candidate as sole respondent.
6. The respondent has canvassed that the
petition will not stand in terms of Section
100(1)(d)(iv) of the Representation of People
Act, 1951 ( for short, "Act of 1951), as the Act
of 1951 and the Act of 1950 operate in an
altogether different fields. The assumption
carried by the petitioner of all 4500 disputed
electorate having exercised their right of
franchise is fundamentally faulted, which is
inconsistent with the electoral behaviour /
pattern. Even otherwise, due to margin
difference, the inclusion of disputed 4500
electorate has not slightly affected the result
7 EP NOS.4/2009 & 10/2009
of election. This eloquently demonstrate that
the foundation of election petition is faulted
which calls for rejection of the petition. The
entire election could not be declared as void as
the right of electorate which is sacrosanct, need
not be interfered with casually in absence of
convincing and cementing grounds. There are no
material facts pleaded to distinctly show which
are such 4500 names newly incorporated nor the
list annexed demonstrated such 4500 names. The
assumptive figure is given, to be nearly 4500
which, by assumptive surmises, could be 1 to 4500
as a cap.
7. It is canvassed by respondent that, it is
not pleaded that all disputed 4500 electorate
have en-block voted in favour of the returned
candidate. It has also not been pleaded, and it
is not known, as to which particular candidate
received votes from individual included voter
from disputed 4500 voters. The entire petition
is theoretical, associated with assumptions,
presumptions, figment of fiction.
8. In the election process there is
supplementary-II finally published copy of
electoral roll. It is due to the fact that the
electoral registration is on till last day of
nomination. The petitioner does not speak of
dates of passing appropriate orders by the
8 EP NOS.4/2009 & 10/2009
Electoral Registration Officer; it only pleads
about date of publication of Supplementary List
No.II dated 28th Sept.,2009. This publication
is only a ministerial act and there is a
presumption that the official act being done in a
proper manner. Section 23(3) of 1950 Act would
not be applicable.
9. Shri Godsay, learned Counsel for the
petitioner asserts that since the authorities of
Election Commission of India, including learned
Collector are deleted, he does not press the
allegations concerning mala fides or ulteriorness
on the part of the respondents to those of the
deleted respondents and, consequently, it will
not now be branded to be corrupt practice in the
definition of Section 123 of the Representation
of People Act, 1951. Learned Counsel reiterate
there is no requirement of filing an affidavit
mandated in Section 100(2) of the Representation
of People Act, 1951. Learned Counsel also
submits that the recitals in the petition are to
be seen in the light of annexures. The list of
the voters will make out the grounds of
illegality and inclusion of 4500 voters by the
Election authorities in the electoral rolls in
breach of Section 23 of 1950 Act. Publication of
voters list would not be ministerial act as it
should be available before nomination. It was a
failure of election officers to follow mandate of
9 EP NOS.4/2009 & 10/2009
law which would be demonstrated by leading
evidence, including pointing the petitioners
chances of success having been hampered. Non
challenge to the voters list under the Act of
1950, would not bar remedies of election
petition. There are no such defects which go to
the root of the matter. Even if such defects
are there, they are of cosmetic nature. He has
relied on judgment reported in AIR 2008 SC 1577
(Umesh Chaliyil Vs. K.P. Rajendran).
10. points arise for consideration:
a) Whether the petitioner has pleaded
details of objected 4500 electorate to
demonstrate that they were newly added
electorate. Whether petition fails for want
of material facts under the election law /
Code of Civil Procedure.
b) Whether the inclusion of 4500
voters/electorate has materially affected the
ultimate result of the election, causing
prejudice to the petitioner or any of the
contesting candidate.
c) Whether the election petition is
maintainable under Section 100 of Act of
1951, when infirmities in compliance to
Section 23 of 1950 Act are only pleaded.
10 EP NOS.4/2009 & 10/2009
d) Whether the petition fails for want
of affidavit under Rule 94 alleging corrupt
practice in terms of Section 123 of 1951 Act.
e) What order.
My findings to above points are:
(a) Material facts not pleaded.
Petitions fail.
(b) No.
(c) No.
(d) On this ground it would not fail.
(e) Elections Petitions fail, hence
dismissed.
11. The law on Elections has been
crystallized in several pronouncements of
Honourable Supreme Court, including Constitution
Bench. The settled legal position emerged from
the cited judgments is:
(a) Burden is upon the election petitioner
to show affirmatively that the result of the
election has been materially affected.
11 EP NOS.4/2009 & 10/2009
(b) The casting of votes at an election
depends upon variety of factors and it is not
possible for anyone to predicate how many or
which proportion of votes will go to one or the
other of the candidates. While it must be
recognized that the petitioner in such a case is
confronted with a difficult situation, it is not
possible to relieve him of the duty imposed upon
him by Section 100(1)(c) and hold without
evidence that duty has been discharged. (Paokai
Haokip v. Rishanq, AIR 1969 SC 663).
(c) It is necessary for the petitioner to
specifically plead that the election in so far it
concern the returned candidate has been
materially affected by non compliance with the
provisions of the Act of 1951 or the Rules made
thereunder. ( 2009 (11) SCC 398 ( G.S.Iqbal Vs.
K.M.Khadar & Co.).
(d) There is no definition of material facts
either in the Representation of People Act, 1951,
nor in the Code of Civil Procedure. In a series
of judgments, the Supreme Court has laid down
that all facts necessary to formulate a complete
cause of action should be termed as material
facts. All basic and primary facts which must
be proved by party to establish the existence of
cause of action or defence are material facts.
Material facts, in other words, mean entire
12 EP NOS.4/2009 & 10/2009
bundle of facts which would constitute a complete
cause of action.
Whether in an election petition, a particular
fact is material or not and as such requires to
be pleaded is dependent on the nature of the
charge levelled and circumstances of the case.
All the facts which are essential to clothe with
complete cause of action must be pleaded.
(e)
An election petition can be summarily
dismissed if it does not furnish cause of action
in exercise of power under Civil Procedure Code.
Appropriate orders in exercise of powers under
the Code can be passed if mandatory requirements
enjoined by Section 83 of the Act to incorporate
material facts in election petition are not
complied with.
Failure to state even a single material fact
will entail dismissal of election petition. (
(2009 (9) SCC 310 (Anil Vasudev Salgaonkar Vs.
Naresh Khushali Shigaonkar).
(f) It gives a mandate to the electoral
registration officers not to amend, transpose or
delete any entry in the electoral roll of a
constituency after the last date for making
nominations for election in that constituency and
before the completion of that election.
(Baidyanath Panjiar vs Sitaram Mahto & Ors
13 EP NOS.4/2009 & 10/2009
( (1969) 2 SCC 447).
(g) The entire scheme of the Act of 1950 and
the amplitude of its provisions show that the
entries made in an Electoral Roll of a
constituency can only be challenged in accordance
with the machinery provided by it and not in any
other manner or before any other forum unless
some question of violation of the provisions of
the Constitution is involved. (Pampakavi Rayappa
Belagali vs B. D. Jatti & Others ( 1970 (3) SCC
147), relevant at page 150, paragraph 7).
In election petition there cannot be roving
and fishing inquiry at a trial without pleading.
Bridging up gaps at the trial for want of
pleading are not permitted. Section 87 of 1951
Act takes care of applicability of Code of Civil
Procedure, still, Section 83 refers to requisite
contents of the petition to inform concise
statement of material facts on which the
petitioner alleges; allegations of corrupt
practice will invite an affidavit in the
prescribed form in support of allegations of such
corrupt practice and particulars thereof.
(h) In Hariprasad Mulshanker Trivedi vs V.
B. Raju And Others ( (1974 3 SCC 424) -
Constitution Bench, paras 30/31), it is observed:
14 EP NOS.4/2009 & 10/2009
The requirement of ordinary residence, as a
condition for registration in the electoral rolls
is one created by Parliament by S. 19 of the 1950
Act, and as we said, we see no reason why
Parliament should have no power to entrust to an
authority other than a court or a tribunal trying
an election petition the exclusive power to
decide the matter finally. We have already
referred to the observation of this Court in
Kabul Singh's case (supra) that sections 14 to 24
of the 1950 Act are integrated provisions which
form a complete code in the matter of preparation
and maintenance of electoral rolls Section 30 of
that Act makes it clear that civil courts have no
power to adjudicate the question. In these
circumstances we do not think that it would be
incongruous to infer an implied ouster of the
jurisdiction of the court trying an election
petition to go into the question. That inference
is 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.
15 EP NOS.4/2009 & 10/2009
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 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 1951 Act. They
were, therefore, qualified to be chosen as
candidates under s. 3 of the 1951 Act.
(i) Section 23 of 1950 Act deals with
inclusion of names in the electoral roll of a
constituency. Section 24 of 1950 ACt provides for
an appeal from any order passed under Section 22
or Section 23. Section 13 of 1950 Act deals
with (a) bar of Civil Court to have jurisdiction
to entertain or adjudicate upon any question
where any person is or is not entitled to be
registered in an electoral roll for a
constituency, or (b) to question the legality of
any action taken by or under the authority of an
electoral registration officer or of any decision
given by any authority appointed under this Act
16 EP NOS.4/2009 & 10/2009
for the revision of any such roll.
Kunwar Nripendra Bahadur Singh Vs. Jai Ram
Verma ( 1977 (4) SCC 153) para 8
(j) It is only where the provisions of
Statute are ambiguous that the Court can depart
from literal or strict construction. Where the
words of a statute are plain and unambiguous must
be given effect to them. There should be
judicial restraint and the temptation to do
judicial legislation should be eschewed by the
Courts. In fact, judicial legislation is an
oxymoron. ( B.Parmanand Vs. Mohan Kokil and
others decided on 16th March, 2011, Civil Appeal
No.2684/2007, Supreme Court of India)
(k) An election petition should not be
summarily dismissed if the defects are minor or
cosmetic in nature. In order to maintain the
sanctity of the election, the Court should not
take such technical attitude and dismiss the
election petition at the threshold. On the
contrary, after finding the defects, the Courts
should give proper opportunity to cure the
defects and, in case of failure, to remove or
cure the defects, it could result into dismissal.
( AIR 2008 SC 1577 Umesh Chilial Vs.
K.P.Rajendran.)
17 EP NOS.4/2009 & 10/2009
12. Petition portray that it was inclusion
of around 4500 votes in the electoral roll has
imbalanced and strangled the election results.
13. The petitioner has not provided details
of the so called objected 4500 electors to be
newly added or what are their addresses.
Detailed list of such newly added electorate is
not incorporated. Petitioner himself is
uncertain whether the figure could be one or to a
ceiling or cap of 4500. He has kept everything
in guessing This is impermissible under
election law as it is wanting details of fact,
including furnishing particulars. Facts are
imperative to be pleaded.
14. The returned candidate (respondent)
cannot be blamed for the inclusion of 4500 voters
in a supplementary list. It was basically in
tune with the direction of Election Commission of
India that a systematic process for enrollment of
electoral roll was generated. It does not appear
even from pleadings that Respondent choreographed
the preparation of supplementary list.
15. The election programme shows that two
sets of electorate were to be incorporated: (a)
first timers, (b) those whose names appear in the
electoral roll but their photographs were not
18 EP NOS.4/2009 & 10/2009
annexed. The Election Commission decided to
make the list uptodate. The details of first or
fresh electorate is imperative to be given in the
petition as at the most for the sake of
petitioners convenience, they could be stated to
be electoral after declaration of election
programme. This parameter cannot be applied to
those voters whose name though exist, did not
give their photographs. For want of photograph,
such voters are not prohibited from casting their
votes.
There cannot be an investigation as to the
figure of new electorate or old electorate having
facilitated with photographs for want of
pleading. Specific forms are provided for such
purposes, being form No.6 for new electorate and
form No.8 for the existing electorate but without
photographs. The result of returned candidate
with 1714 additional votes or with margin of 6214
votes between the petitioner and respondent
cannot be branded to be associated with small
margin and could tilt the balance in favour of
the petitioner if the so called 4500 votes are to
be excluded. This uncanny consequence asserted
by the petitioner would not benefit his cause to
disturb the election process, to brand the
electoral roll to be illegal or ultra vires with
reference to the particular entries of votes.
19 EP NOS.4/2009 & 10/2009
16. The District Election Officer by order
dated 30th May, 2009, gave entire schedule of
programme. The forms were to be accepted from
the period 1st June, 2009, to 15th June, 2009.
They were to be included in database from 15th
June, 2009, to 30th June, 2009. They were to
be compilled in master electoral roll from 20th
June to 30th June, 2009. A formal electoral
list was to be published upto 7th July, 2009.
Objections to be entertained between 7th July,
2009 to 22nd July, 2009. The objections to be
decided upto 5th August, 2009. The
supplementary list is to be prepared and printed
upto 20th August, 2009 and the publication of the
list was dated 25th June, 2009, which has been
extended to 27.8.2009 by an order dated 7.7.2009
of the learned District Election Officer. It was
a special drive directed by the District Election
Officer to be implemented in a time frame.
Thus, the respondent, as a returned candidate,
has virtually no role to impede or influence the
process of election programme scheduled way back
before declaration of the Assembly election.
The inclusion of the names could be much prior
to the date of nomination, or publication of
election programme dated 25.9.2009 as it was the
date for filling in nomination. The petitioner
has not disclosed date of inclusion or
publication of list. He has construed to
publication after date of completion of
20 EP NOS.4/2009 & 10/2009
nomination, which also is factually wrong as the
electoral list was to be completed upto 22nd
August, 2009. There cannot be a friction on the
legal proposition that after the last date for
making nominations for an election in particular
constituency, there cannot be inclusion,
amendment, transposition or deletion of any
entry. It was imperative for the petitioner to
have informed that such publication of the
electoral roll on 27.8.2009 did not answer the
mandate as the notification was issued by the
Election Commission of India on 18th Sept.,2009
and 25th Sept.,2009 was the last date for making
nominations.
17. The petitioner has canvassed, that the
list of voters so included are not residing on
the addresses mentioned against their names.
There is nothing in the petition quoting single
instance to elaborate these facts. No affidavit
of certificate produced or pleaded to parade that
a particular individual named in the
supplementary electoral roll is not a resident in
the constituency. The petitioner canvassed, the
cause of action for filing the petition has
arisen on 22.10.2009 when the election results
were declared. Indeed, the cause of action could
be to the order of direction to include the new
electorate by preparing supplementary list.
21 EP NOS.4/2009 & 10/2009
Unless such order was made and questioned, there
could not be a publication. The cause of action
again would not survive as based on such
supplementary list, the petitioner participated
in the entire election process and never raised
objection to its legality or authenticity.
Consequently, I hold, the petitioner has not
pleaded material facts to constitute a cause of
action to file election petition.
18.
The challenge to the election of
returned candidate is for inclusion of 4500 new
voters. Section 100 of Act of 1951, deals with
grounds for declaring election to be void and as
the present petition proceeds, it is in terms of
Section 100(d)(iv).
19. Section 100(1)(d)(iv) of 1951 Act
conceive as under:
"100. (1) Subject to the provisions of sub-
section 2, if (the High Court is of opinion-
... ...
(d) that the result of the election, insofar
as it concerns a returned candidate, has been
materially affected-
... ... ...
22 EP NOS.4/2009 & 10/2009
(iv) by any non-compliance with the
provisions of the Constitution or of this Act
or of any rules or orders made under this
Act, [ the High Court] shall declare the
election of the returned candidate to be
void.]"
Section 23 of 1950 Act puts in its bracket:
"23. (1) Any person whose name is not
included in the electoral roll of a
constituency may apply to the electoral
registration officer for the inclusion of his
name in that roll.
(2) The electoral registration officer shall,
if satisfied that the applicant is entitled
to be registered in the electoral roll,
direct his name to be included therein (after
proper verification of facts in such manner
as may be prescribed):
Provided that if the applicant is
registered in the electoral roll of any other
constituency, the electoral registration
officer shall inform the electoral
registration officer of that other
constituency and that officer shall, on
receipt of the information, strike off the
applicant's name from that roll (after proper
verification of facts in such manner as may
be prescribed).
(3) 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 this section, after the last
date for making nominations for an election
23 EP NOS.4/2009 & 10/2009
in that constituency or in the parliamentary
constituency within which that constituency
is comprised and before the completion of
that election."
Section 100(1)(d) provides, prima facie,
establishing that the result of election in so
far as it concerns returned candidate has been
materially affected. The term "materially
affected" has its long drawn implications and it
is primarily to be indicated with the chances of
the petitioners succeeding in the election have
been obliterated. The factual details of voting
pattern shows the votes polled in favour of
respondent to be 77,715; votes polled in favour
of the petitioner 73,501; margin of votes between
the petitioner and the returned candidate ( sole
respondent) is 6214, and the questioned votes are
4500. Even if one excludes the questioned votes,
still, 1714 voters of the electorate have
exercised their franchise in favour of the
respondent, than the petitioner. The afore
referred calculations are even by assuming but
not admitting that all 4500 disputed voters have
exercised their right of franchise in favour of
the sole respondent. I agree to learned Senior
Counsel that such assumption is fundamentally
faulted; still, it will not deviate the course of
result of mindset of electorate as the figure of
1714 electorate cast their choice to the
respondent. This circumstance demonstrates that
24 EP NOS.4/2009 & 10/2009
the election petitions proceed on cosmetic
deficiencies in the election of returned
candidate. Hence, I hold that inclusion/addition
of 4500 voters or their participating in the
election process has not materially affected the
ultimate result of the election. It has not
caused any prejudice to the petitioner or the
other contestants. Again, it is not pleaded that
the persons whose names are recorded in the
electoral roll and who participated in the voting
were disqualified under Section 16 of 1950 Act.
The petitioner did not plead and show
affirmatively that result of election has been
materially affected. He has not pleaded as to
how many votes were turned as waste which may
tilt the balance. It does not appear that the
inclusion of 4500 votes ( which figure itself is
an assumption, without any base), has sparked and
strangled to the betterment rights available to
the petitioner. There is nothing again to
demonstrate that the deleted respondents were in
connivance with the respondent, returned
candidate. The Respondent could not, from
official letters, even otherwise, osterise and
influence in preparing the Supplementary Roll.
The election results, apparently, should not be
ransacked on deficient material facts, including
non availability of ground of materially
affecting the result. Thus, answer to point (b)
is against the petitioner.
25 EP NOS.4/2009 & 10/2009
20. The election petition, as seen earlier,
proceeds to the principal challenge concerning
inclusion of 4500 voters in violence to Section
23 of 1950 Act. A well drawn scheme is provided
under the 1950 Act as Section 24 provides appeal
(a) to the District Magistrate or Additional
District Magistrate from any order of Electoral
Registration Officer under Section 22 or Section
23; (b) to the Chief Electoral Officer from any
order of the District Magistrate or the
Additional District Magistrate under clause (a).
The Legislative Scheme is, indeed, considered
by the Honourable Supreme Court in Hariprasad's -
Case ( AIR 1974 (3) SCC 415) in paragraph nos.
30, 31, 32. The law is clear and unambiguous,
the Act of 1950 and the Act of 1951 operate
distinctly. The present situation in Section
100(1)(d)(iv) in 1951 Act prevails after an
amendment in 1956. Before 1956, the Act of 1951,
was 27/1956 and present Act of 1951, after
amendment is 43/1951. Section 100 dealing with
grounds for declaring election to be void, as
prevailed on 17th July, 1951, upto Amendment Act
27/1956, inform of drastic amendments wherein
Section 100, Sub-section (2) (c) reads as under:
"(2) that the result of the election has
been materially affected by the improper
reception, or refusal of a vote or by the
26 EP NOS.4/2009 & 10/2009
reception of any vote which is void, or by
any non-compliance with the provisions of the
Constitution or of this Act or of any rules
or orders made under this Act or of any other
Act or rules relating to the election,or by
any mistake in the use of any prescribed
form, the Tribunal shall declare the election
of the returned candidate to be void."
Section 100(2) (c) prior to amendment was
incorporating "any other Act or Rules relating to
the election. Clause (c) has been split up in
Section 100(1)(d)(iii) and (iv) of 1951 Act,
which is quoted earlier. Right to vote being a
purely statutory right, the validity of any vote
has necessarily to be examined on the basis of
provisions of relevant Act. The terminology
used in 1951 Act in Section 100(1)(d)(iv) refers,
"orders made under this Act". Thus, it does not
continue to deal with situations "by any other
Act." The orders of inclusion in voters roll, are
made in terms of Section 23 of 1950 Act. Thus,
the two Acts are distinct and operate in
different area under Election law. Petition is
silent as to what was the breach of
Constitutional provisions. Consequently, it
would not provide a challenge to the election,
in terms of Section 100 of 1951 Act. This is
more so, as appeal provisions are incorporated in
the Act of 1950 even in the rules of preparation
of electoral rolls.
27 EP NOS.4/2009 & 10/2009
21. Both the learned Counsel gave reference
to the judgment of Hon'ble Supreme Court in (1977
(4) SCC 153) (Kunwar Nripendra Singh's case) in
respect of finality of electoral rolls, challenge
on the ground of irregularities either in
preparation thereof or its non correction at the
last moment occurring due to disqualification.
It has been observed in paragraph No.14, "mere
remissness of the officers in performing their
duties in preparation of the electoral rolls, is
not relevant for the purpose of determining the
question in the entire scheme of the Act and the
object and purpose of preparation of electoral
rolls under 1950 Act".
In paragraph No.21, it is observed that,
" 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. On the
part of the officers also it will vitalise
and invigorate a healthy democratic practice
if, charged with the electoral duties,
demanding high probity, they neither exhibit
rank remissness nor accelerated alacrity apt
always to breed suspicion of partisanship."
Para No.26 informs as under:
" The election could be set aside only on
the grounds mentioned in section 100 of the
1951 Act. In this case reliance was placed
28 EP NOS.4/2009 & 10/2009
under section 100(1)(d)(iii) for invalidating
the election on the ground of reception of
void votes. We have already shown that the
electoral roll containing the particular
names of voters was valid and there is,
therefore, no question of reception of any
vote which was void. There is, thus, no
substance in that ground for challenging the
election."
22. The Hon'ble Lordships in the matter of
P.T.Rajan Vs. T.P.M.Sahir ( AIR 2003 SC 4603)
have observed in paragraph Nos.46 and 47 as
under:
"46. A statute as is well-known must be read
in the text and context thereof. Whether a
statute is directory or mandatory would not
be dependent on the user of the words "shall"
or "may". Such a question must be posed and
answered having regard to the purpose and
object it seeks to achieve.
47. What is mandatory is the requirement of
Sub-section (3) of Section 23 of the 1950 Act
and not the ministerial action of actual
publication of Form 16.:
23. Entries made in electoral roll can only
be challenged in accordance with machinery
provided by it and not before any other forum.
Finality of electoral cannot be challenged in an
election petition, even if certain irregularities
had taken place in preparing Electoral roll. The
voters were not disqualified under Section 16 of
29 EP NOS.4/2009 & 10/2009
1950 Act. In the light of this legal position,
merely for alleged breach of Section 23(3) of
1950 Act, by virtue of amendment in 1956, by Act
No.27 of 1956, dt.8th June, 1956, in 1951 Act,
the petition would not be maintainable under
Section 100 of 1951 Act. This answers point No.
"c" against petitioner.
24. Learned Counsel for the petitioner has
clarified that he has not made allegations of
corrupt practice in terms of Section 123 of 1951
Act. Whatever pleadings of unfair play or mala
fides exists is owing to reference of deleted
respondents. Since the respondents are deleted,
the pleadings of unfairness or mala fides or
ulteriorness of the election officers has become
inconsequential. Hence, I hold the petition
would not fail for want of affidavit under Rule
94 of Election Rules,1961, alleging corrupt
practice.
25. The net result is, the applications
under Order VII, Rule 11 Code of Civil Procedure
in both the petitions are allowed. Election
Petition Nos.4/2009 and 10/2009 are dismissed.
No costs. Other applications, being
inconsequential are also disposed of.
30 EP NOS.4/2009 & 10/2009
Security deposit of Rs.2000/- be
reimbursed to the petitioners.
(K.U.CHANDIWAL)
JUDGE
...
AGP/ep
