Bombay High Court
Abhyankar Jagannath Motiram vs Subhash Kisan More And Ors on 9 May, 2025
Digitally signed
by VARSHA
VARSHA VIJAY
VIJAY RAJGURU
2025:BHC-OS:7918
RAJGURU Date:
2025.05.09
18:07:56 +0530
901-aep-2-2025.doc
varsha IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPLICATION NO. 2 OF 2025
IN
ELECTION PETITION NO. 8 OF 2024
Abhayankar Jagannath Motiram ... Applicant
Meera Co-operative Housing Society,
New Link Road, Near Oshivara Police Station,
Andheri (West), Mumbai 400053.
IN THE MATTER BETWEEN
Subhash Kisan More
Residing at A-104, Shri Ambika Niwas,
Plot No. 41, Sector 42, Seawood (West),
Navi Mumbai - 400 706. ... Petitioner
vs.
1. Abhayankar Jagannath Motiram
Residing at C-1301, Meera Co-operative
Housing Society, New Link Road, Near
Oshivara Police Station, Andheri (West),
Mumbai 400 053.
2. Shivaji Vishnu Nalawade
Residing at Flat No. 305, Boulevard 3,
Wadhava the Address, LBS Road,
Opp. R-City Mall, Ghatkopar(West)
Mumbai 400 086.
3. Vishwajeet Tulshiram Khandare
Residing at Flat No. 302, Murli Manohar
Society, Lal Chakki, Ulhasnagar-4,
District-Thane 421 004.
4. Mr. Arun Bendkhale,
Residing at A-304/B-3, Velentine Apt.(II)
CHS, Ltd., Gen A.K. Vaidya Marg,
Wagheshwari Mandir, Opp. J.V. Compound,
Malad (East), Mumbai 400 097.
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5. Ashok Murlidhar Bhandage,
Residing at P-2 Building,
Room No.812, A B Wing,
MMRDA Complex, C.T.S. No. 120,
Karve Nagar, Hariyali Village,
Kanjurmarg East, Mumbai 400 042.
6. Dr. Anand Mahadeo Kasle
Residing at 9 Himgiri, B Wing,
Flat No. 303, Veenanagar Phase 2,
LBS Road, Mulund (West),
Mumbai 400 080.
7. Tanaji Rajabai Keshav Kamble,
Residing at Flat No.1,
Shilpkar Building No.5, Arya Chankya
Nagar, Kandivali(E), Mumbai 400 101.
8. Dhananjay K. Garje,
Residing at 101 Harmony Apts., St. Francis
Road, Vile Parle(West), Mumbai 400 056.
9. Rajesh Narendrabahadur Singh,
Residing at B-108, 104 Lakshmidip Sosa,
Kamalasagar Road, Bhandup Goan(East),
Mumbai 400 042.
10. Shivnath Hiraman Darade,
Residing at C-1/20, Shriram Kapus Kamgar
Society, Kamgar Nagar Road,
Kurla(East) Mumbai 400 024.
11. Shivaji Adnyan Shendge,
Residing at D-44, Shital Kunj,
Shri Prasad Co-op. Hsg. Society Ltd.,
Plot No. 428, RSC-43, Charkop,
Kandivali (W), Mumbai 400 067.
12. Dnyandeo Laxman Hande,
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Residing at Flat No. 7, C Wing, Ground
Floor,Bhagirathi Villa, Amrutnagar,
Ghatkopar(West), Mumbai 400 086. ... Respondents
Mr. M.M. Vashi, Senior Advocate a/w. Mr. Prabhakar M. Jadhav, Mr.
Shekhar V. Mane, Ms. Suchita Chavan, for Applicant/Original
Respondent No.1.
Mr. Rajiv Patil, Senior Advocate i/b. Mr. Sachin S. Punde, for
the Petitioner.
CORAM : GAURI GODSE, J.
RESERVED ON : 19th MARCH 2025
PRONOUNCED ON : 9th MAY 2025
JUDGMENT:
BASIC FACTS:
1. This application is filed by respondent no.1 in the election
petition. The applicant prays for the rejection of the election
petition under Order VII Rule 11 of the Civil Procedure Code,
1908 ("CPC"). The election petition is filed under Section 81 of
the Representation of the People Act 1951 ("the 1951 Act") to
challenge the biennial election of respondent no.1 to the
Maharashtra Legislative Council from the Mumbai Teachers
Constituency held on 26th June 2024. The election result was
declared on 1st July 2024, and the applicant was declared a
successful candidate. The petitioner also prays for a
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declaration that he be declared duly elected in the election to
the said constituency.
2. The petitioner has contended that there were a total of
15,839 voters in the said constituency, out of which 1200
voters exercised their right to vote. There were 402 invalid
votes, and the remaining 11598 were considered valid. The
petitioner has contended that a quota of 5800 was fixed for the
winning candidate. It is further contended that in the first round,
the applicant received 3079 first-preferential votes, whereas
the petitioner received 3011 first-preferential votes. Thus, the
petitioner contended that there was only a difference of 68
votes between the applicant and the petitioner. The petitioner
further contended that in the 11th round, i.e. the second last
round before declaring the result, the applicant's votes had
reached 3642, whereas the petitioner's votes reached 3434,
and there was a difference of only 208 votes. The petitioner
thus contended that if the election of respondent no.1 in the
election petition ("the applicant") is declared null and void, the
petitioner, being the second highest candidate, would be
entitled to be declared elected.
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ARGUMENTS FOR REJECTING THE ELECTION PETITION
AT THE THRESHOLD:
3. The application for rejection of the election petition is filed
on the ground that the petition raises an objection on the final
electoral list, which cannot be made a subject matter of
challenge in the election petition. Learned senior counsel for
the applicant submitted as under:
a) In view of the schedule published by the Election
Commission, the electoral roll was published on 23rd
November 2023. The election commission had
published a draft electoral list on 16 th October 2023 and
25th October 2023. Until 6th November 2023, time was
available to seek any claims or objections to these lists.
The last date for nomination was 7th June 2024.
Therefore, the objection regarding the addition of
ineligible candidates not raised before the last date of
filing nomination cannot be made the subject matter of
challenge in the election petition. The only exception
available to challenge the electoral roll is on the ground
that the names were added after the last date of
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submission of the nomination. Irrespective of the
objections to the eligibility, the objection raised after the
last date of nomination cannot be made a subject matter
of challenge in the election petition.
b) The sole allegation in the petition is that ineligible voters
were enrolled in the electoral roll and they had voted in
the election held on 26th June 2024. The allegation
against the applicant is that the addition of ineligible
voters was made under the undue influence of the
applicant, through the Headmasters/Principals of the
respective schools. However, the petition is bereft of any
particulars regarding the illegal addition of voters by the
concerned Headmasters/Principals. The allegations are
vaguely made against the applicant. The
Headmasters/Principals who are authorised to add the
names to the electoral roll are not made a party to the
petition.
c) According to the petitioner, primary and pre-primary
teachers were ineligible to be voters, and only
secondary school teachers and above secondary school
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teachers were eligible. The allegations regarding the
ineligibility of the voters are based on a vague allegation
that the minimum age required was not considered, and
non-teaching staff were enlisted as voters. The
procedure to prescribe the qualification for the teachers
constituency is provided under Section 27(3) of the
Representation of the People Act 1950 ("the 1950 Act").
The petition is filed on a misconception that primary and
pre-primary teachers are excluded. The Election
Commission of India issued the revised guidelines dated
5th September 2016 regarding the preparation of the
electoral rolls of the Teachers Constituency. The
provisions indicate that the electors must be teaching in
institutions not lower in standard than that of a
secondary school. The qualification is with regard to the
level of the Institutions; hence, all the eligible teachers of
the Institutions having a secondary section would be
eligible to be added as voters. The Notification dated 8 th
October 1985, published by the State Government
notifying the standard of the Institutions for the purpose
of election of the said constituency, is misinterpreted in
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the petition. Hence, the ground to challenge the election,
as raised in the petition, would not constitute any cause
of action.
d) The electoral roll in the teachers constituency is finalised
after certification by Headmasters/Principals, and if a
discrepancy is found, the form is rejected. Hence, there
is no basis for the vague allegation that there was
collusion between the applicant and the concerned
Headmasters/Principals for adding the names of
ineligible voters. The vague allegations without any
material particulars regarding any undue influence by
the applicant in preparing the electoral roll, the petition
would not warrant any trial.
e) Section 30 of the 1950 Act bars the civil court's
jurisdiction to adjudicate upon any question regarding
the electoral roll. For the purpose of the election petition,
the High Court is a civil court. In view of Section 27(4) of
the 1950 Act, the provisions of Sections 15, 16, 18, 22
and 23 shall apply in relation to the teachers
constituency. However, only if Section 23(3) is not
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followed can it be questioned through the election
petition. As per the General Administration Department
guidelines dated 8th October 1985, all the teachers from
the educational institutions listed in the guidelines are
eligible to be added to the electoral roll. In view of the
well-settled legal principles and the applicable Rules for
preparing the electoral roll in the teachers
constituencies, the allegations made in the election
petition would not warrant any trial. Thus, the election
petition is liable to be rejected at this stage.
f) Learned senior counsel for the applicant relied upon the
decision of the Hon'ble Apex Court in the case of Indrajit
Barua and Others V/s Election Commission of India and
Others1. He submitted that the Hon'ble Apex Court has
taken the view that preparing the electoral roll is not a
process of election. As held by the Hon'ble Apex Court,
in a suitable case, a challenge to the electoral roll for not
complying with the requirements of the law may be
entertained subject to the rule indicated in the decision
of N.P. Ponnuswami Vs. Returning Officer, Namakkal
1 (1985) 4 SCC 722
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Constituency2. Learned senior counsel for the applicant
relied upon paragraph 12 of the said decision, which
referred to the view taken by the Hon'ble Apex Court in
the case of N.P. Ponnuswami.
g) Learned senior counsel for the applicant relied upon the
decision of the Hon'ble Apex Court in the case of
Hariprasad Mulshanker Trivedi Vs. V.B. Raju and
Others3. He submitted that the Hon'ble Apex Court held
that the process of finalising the electoral roll cannot be
questioned in the election petition, as the same cannot
be termed an election process. He also relied upon the
decisions in the case of Samar Singh Vs. Kedar Nath
alias K.N. Singh and Others4 and in the case of B.M.
Ramaswamy Vs. B.M. Krishnamurthy and Others 5, to
support his submission that the objections to the final
electoral roll pertaining to allegations regarding the
preparation of the electoral roll or adding members to
the electoral roll before the last date of submission of
2 1952 SCR 218
3 (1974) 3 SCC 415
4 1987 (Supp) SCC 663
5 (1963) 3 SCR 479
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the nomination cannot be the subject matter of the
election petition. The election petition on the sole ground
of objection to the preparation of the electoral roll would
not constitute any cause of action. The well-established
legal principles regarding rejecting an election petition at
the threshold if the petition does not constitute any
cause of action, squarely apply to the present petition.
Thus, the petition must be rejected at the threshold
under Order VII Rule 11 of CPC.
ARGUMENTS ON BEHALF OF THE PETITIONER:
4. Learned senior counsel for the petitioner submitted as
under:
a) The petitioner has pleaded the particulars of the illegality
of adding ineligible names to the electoral roll. The
particulars pleaded in the petition would warrant trial.
Hence, the petitioner would be entitled to lead evidence
to support the allegations of adding ineligible names to
the electoral roll.
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b) The Election Commission of India has issued guidelines
dated 5th September 2016. Clause 1.3 provides for the
eligibility of voters in the teachers constituencies. He
relied upon the relevant provisions to support his
contentions that the teachers of the primary and pre-
primary schools are not qualified to be added as eligible
voters.
c) After the election program is declared, the candidate who
subsequently decides to file a nomination is left with no
remedy to challenge the electoral roll, as the election
program is already declared. The objection regarding the
addition of ineligible names in the voters list can be made
subject matter of challenge in the election petition. As per
the regulation issued by the Election Commission of
India, the voters in the teachers constituencies have to be
from the secondary section. The General Administration
Department guidelines dated 8th October 1985 provide
the list of educational institutions not lower in standard
than that of a secondary school, which are notified for the
purpose of election to the Maharashtra Legislative
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Council from Teachers Constituencies. The list contains
pre-primary, montessori, primary, etc, as eligible
institutions; however, the voters would be eligible only
from the secondary section.
d) Learned senior counsel for the petitioner relies upon
paragraph 18 of the decision of the Hon'ble Apex Court in
the case of Hari Prasad Mulshankar Trivedi. He
submitted that if any name is entered or deleted and
there is an irregular exercise of the power, the court
trying the election petition can go into the question
whether there was a violation of Section 23(3) of the
1950 Act. Learned senior counsel referred to the decision
in the case of Indrajit Barua and submitted that even as
per the legal principles settled by the Hon'ble Apex Court,
in a suitable case challenge to the electoral roll for not
complying with the requirements of the law can be
entertained, subject to the rule indicated in the decision of
N.P. Ponnuswami.
e) Learned senior counsel for the petitioner further submits
that even otherwise, all the legal principles relied upon by
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the learned senior counsel for the applicant are not with
reference to the election of the Legislative Council. The
right of appeal under Section 24 of the 1950 Act is not
available in the elections of the Teachers Constituency of
the Legislative Council. Thus, in the absence of any
remedy to raise objections to the illegality in the
preparation of the electoral roll, the petitioner cannot be
deprived of raising objections by way of the election
petition. The material particulars pleaded in the petition to
support the allegations would warrant a trial, as sufficient
cause of action arises to challenge the election of the
applicant. He thus submits that the petition cannot be
rejected at the threshold as contended by the applicant.
CONSIDERATION OF THE SUBMISSIONS:
5. I have perused the papers of the petition and the
application and considered the rival submissions. The petition
is filed to declare the election of the applicant to the
Maharashtra Legislative Council from Mumbai Teachers
Constituency null and void. The petitioner also prays to declare
that the petitioner is duly elected. To consider the submissions
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on behalf of the applicant for rejection of the petition at the
threshold, it is necessary first to examine the pleadings in the
petition. The pleadings in the petition can be summarised as
under:
a) The election of the applicant is void under section 100(1)
(d)(iii) and 100(1)(d)(iv) of the 1951 Act. The applicant
received votes that are illegal and void. In gross violation
of the provisions of the Constitution of India and the 1950
and 1951 Acts and the Rules framed thereunder, and in
breach of the orders and guidelines, 587 ineligible
persons were registered under the applicant's influence
and power. A list of 587 ineligible voters is annexed to the
petition.
b) The applicant was the Chairman of the Maharashtra
State Scheduled Castes and Scheduled Tribes
Commission and also the Minority Commission and
worked on other important and influential posts. The
applicant retired from the post of Deputy Secretary,
School Education Department. The applicant is an office
bearer of important educational institutions. Hence, by
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taking undue advantage of the post he held in the past,
the applicant influenced the registration of ineligible
persons as voters. The petitioner referred to various
educational institutions in the petition and contended that
the applicant, through the Headmaster/Principal of those
institutions, facilitated the registration of 518 voters who
are working as teachers in pre-primary and primary
schools and also nonteaching staff. Around 69 voters are
between 18 and 25 years old, which shows that they
have no requisite experience of three years. Thus, a total
of 587 ineligible electors were registered in the electoral
roll who voted for the applicant.
c) Pursuant to Section 27(3)(b) of the 1950 Act, the State
Government notified a list of educational institutions not
lower in standard than a secondary school by notification
dated 8th October 1985. As per the government circular
dated 26th September 2023, a person who has been for
atleast three years in the last preceding six years from 1 st
November 2023, been engaged in teaching in such an
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institution in the State, not lower in standard than that of a
secondary school, can be held eligible to vote.
d) There were a total of 15,839 voters in the said
constituency, out of which 1200 voters exercised their
right to vote. There were 402 invalid votes, and the
remaining 11598 were considered valid. A quota of 5800
was fixed for the winning candidate. In the first round, the
applicant received 3079 first-preferential votes, whereas
the petitioner received 3011 first-preferential votes. Thus,
there was only a difference of 68 votes between the
applicant and the petitioner. In the 11 th round, i.e. the
second last round before declaring the result, the
applicant's votes had reached to 3642, whereas the
petitioner's votes reached 3434, and there was a
difference of only 208 votes. Thus, if the election of the
applicant is declared null and void, the petitioner, being
the second-highest candidate, would be entitled to be
declared elected.
6. The applicant contends that there is no allegation that
illegal addition of votes was done after the last date of
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nomination or declaration of the final electoral list; hence,
according to the learned senior counsel for the applicant, any
objection raised regarding the illegal addition of names of the
electors before the last date of submitting nominations cannot
be made the subject matter of an election petition. A perusal of
the election petition indicates that the grounds for challenging
the election are only the illegal addition of the names of
ineligible electors, by illegal use of power and undue influence.
Thus, it is necessary to discuss all the decisions relied upon in
this case, to understand the legal position as to whether the
preparation of the electoral roll is a process of an election and
whether an objection to the electoral roll can be raised in an
election petition.
LEGAL POSITION:
7. The Hon'ble Apex Court in the decision of Indrajit Barua
was dealing with the challenge to the validity of the elections to
the Assam Legislative assembly in a number of writ petitions
filed under Article 226 of the Constitution of India in the Gauhati
High Court. A more or less similar allegations were made,
substantially challenging the electoral rolls and questioning the
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validity of all the elections to the Legislative Assembly, and
praying for the dissolution of the house. At the instance of the
Election Commission, these petitions were transferred before
the Hon'ble Supreme Court. It was held in paragraph 3 as
under:
"3. ......................We are of the view that once the final
electoral rolls are published and elections are held on the
basis of such electoral rolls, it is not open to anyone to
challenge the election from any constituency or
constituencies on the ground that the electoral rolls were
defective. That is not a ground available for challenging
an election under Section 100 of the Representation of
the People Act, 1951. The finality of the electoral rolls
cannot be assailed in a proceeding challenging the
validity of an election held on the basis of such electoral
rolls vide Kabul Singh v. Kundan Singh [(1969) 2 SCC
452 : (1970) 1 SCR 845 : 42 ELR 325] . Article 329(b) in
our opinion clearly bars any writ petition challenging the
impugned elections on the ground that the electoral rolls
of 1979 on the basis of which the impugned elections
were held were invalid."
(emphasis applied by me)
8. In the decision of Indrajit Barua, while dealing with the
point as to whether preparation and publication of the electoral
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rolls are a part of the process of election within the meaning of
Article 329(b) of the Constitution, the Hon'ble Apex Court
referred to the decision in N.P.Ponnuswami, where the Apex
Court had to decide the amplitude of the term 'election'. The
relevant observations from the judgment in the decision of
N.P.Ponnuswami, was referred to and quoted in paragraph 12
as under:
".................. The discussion in this passage makes it clear
that the word 'election' can be and has been appropriately
used with reference to the entire process which consists of
several stages and embraces many steps, some of which
may have an important bearing on the result of the process."
9. The Hon'ble Apex Court in the decision of Indrajit Barua,
held as under in paragraph 12,
".............. We are not prepared to take the view that
preparation of electoral rolls is also a process of election.
We find support for our view from the observations of
Chandrachud, C.J. in Lakshmi Charan Sen case [AIR
1957 SC 304 : 1957 SCR 68 : (1956) 12 ELR 443] that "it
may be difficult, consistently with that view, to hold that
preparation and revision of electoral roll, is a part of
'election' within the meaning of Article 329( b)". In a
suitable case challenge to the electoral roll for not
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complying with the requirements of the law may be
entertained subject to the rule indicated in Ponnuswami
case [(1985) 4 SCC 689]. But the election of a candidate
is not open to challenge on the score of the electoral roll
being defective. Holding the election to the Legislature
and holding them according to law are both matters of
paramount importance. Such elections have to be held
also in accordance with a time bound programme
contemplated in the Constitution and the Act. The proviso
added in Section 22(2) of the Act of 1950 is intended to
extend cover to the electoral rolls in eventualities which
otherwise might have interfered with the smooth working
of the programme. These are the reasons for which we
came to the conclusion that the electoral roll of 1979 had
not been vitiated and was not open to be attacked as
invalid."
(emphasis applied by me)
10. In the case of N.P. Ponnuswami, the appellant,
thereupon moved the High Court under Article 226 of the
Constitution, praying for a writ of certiorari to quash the order of
the Returning Officer rejecting his nomination paper and to
direct the Returning Officer to include his name in the list of
valid nominations to be published. The High Court dismissed
the appellant's application on the ground that it had no
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jurisdiction to interfere with the order of the Returning Officer by
reason of the provisions of Article 329( b) of the Constitution.
The Hon'ble Apex Court held in paragraph 25 as under:
"25. The conclusions which I have arrived at may be
summed up briefly as follows:
(1) Having regard to the important functions which the
legislatures have to perform in democratic countries, it
has always been recognised to be a matter of first
importance that elections should be concluded as early
as possible according to time schedule and all
controversial matters and all disputes arising out of
elections should be postponed till after the elections are
over, so that the election proceedings may not be unduly
retarded or protracted.
(2) In conformity with this principle, the scheme of the
election law in this country as well as in England is that
no significance should be attached to anything which
does not affect the "election"; and if any irregularities are
committed while it is in progress and they belong to the
category or class which, under the law by which elections
are governed, would have the effect of vitiating the
"election" and enable the person affected to call it in
question, they should be brought up before a Special
Tribunal by means of an election petition and not be
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made the subject of a dispute before any court while the
election is in progress."
(emphasis applied by me)
11. Thus, considering the well-established legal principles as
discussed above, it cannot be said that there is any absolute
legal proposition that a challenge to the electoral roll cannot be
questioned in an election petition. There is no express bar to
raising a challenge to the electoral roll in an election petition.
As held by the Hon'ble Apex Court in the decision of Indrajit
Barua, in a suitable case, a challenge to the electoral roll for
not complying with the requirements of the law may be
entertained subject to the rule indicated in the N.P.
Ponnuswami's case. Thus, in view of the legal principles
settled in the decision of N.P. Ponnuswami's case and Indrajit
Barua's case, as referred to in the above paragraphs; if any
irregularities are alleged to have been committed in preparation
of the electoral roll for not complying with the requirements of
the law, the person affected can question it by means of an
election petition, if it would have the effect of vitiating the
"election".
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12. The Hon'ble Apex Court in the decision of B. M.
Ramaswamy was dealing with the dispute in an election
petition filed under Section 13 of the Mysore Village
Panchayats and Local Boards Act 1959. The dispute was with
respect to the election to the Village Panchayat in the State of
Mysore. The objection was raised that the appellant therein
was not a resident of the constituency and was not qualified to
contest the election from that constituency. The Hon'ble Apex
Court held that the Electoral Registration Officer had
jurisdiction to entertain the application to include the appellant's
name in the electoral roll and take such action as he deems fit.
It is observed that the non-compliance with the procedure
prescribed does not affect his jurisdiction, though it may render
his action illegal and such non-compliance cannot make the
officer's act non est, though his order may be liable to be set
aside in appeal or by resorting to any other appropriate
remedy. Considering the provisions of the said local Act, it is
observed that a special jurisdiction on the Munsif to set aside
an election is provided, and he can do so only for the reasons
mentioned in Section 13(3) of the Act. It is held that there is no
provision in the said Act which enables the High Court to set
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aside the election on the ground that though the name of a
candidate is in the list, it had been included therein illegally.
Thus, the legal principles settled in this decision would not be
relevant to decide the rival contentions raised in the present
case.
13. The Hon'ble Apex Court in the decision of Hari Prasad
Mulshankar Trivedi, was dealing with the challenge to the
election of the respondents therein as members of the Council
of States from the State of Gujarat. The challenge was on the
ground that their names had been illegally entered in the
electoral roll and they were not ordinary resident of the
constituency and were not electors within the meaning of
Section 2(1)(e) of the 1951 Act. The Hon'ble Apex Court
considered various earlier decisions of the Apex Court,
including the principles settled in the decision of B.M.
Ramaswamy. It was held in paragraph 25 that the question
whether a person whose name is entered in the electoral roll is
qualified under the Constitution and whether he suffers from
any of the disqualifications specified in Section 16 of the 1950
Act can always be gone into by the Court trying an election
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petition. It is held that the electoral roll is never conclusive or
final in respect of these matters. With reference to facts before
the Apex Court, it was observed that the only question was
whether the ground taken in the election petition that since the
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, can be gone into by the High Court in trying
an election petition. With reference to the question raised in the
facts of that case, the Apex Court held that a wrong decision on
a question of ordinary residence for the purpose of entering a
person's name in the electoral roll should not be treated as a
jurisdictional error which can be judicially reviewed either in a
civil court or before an election tribunal.
14. Thus, in view of the well-settled legal principles as
discussed above, there is no express ouster of the Court trying
an election petition to go into the question of challenge to the
illegal addition of ineligible names in the electoral roll. Section
27(4) of the 1950 Act provides that the provisions of Sections
15, 16, 18, 21, 22 and 23 shall apply to the Teachers
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Constituencies. Hence, in the present case, the right of appeal
under Section 24 of the 1950 Act is not available in the
elections of the Teachers Constituency of the Legislative
Council to challenge a breach of Section 23 of the 1950 Act.
Thus, in the absence of any remedy to raise objections to the
illegality in preparing the electoral roll, the affected person
cannot be deprived of raising objections by way of the election
petition if the challenge materially affects the election result.
15. The Hon'ble Apex Court in the decision of Samar Singh
was dealing with the challenge to the High Court's Order
rejecting the election petition under Order VII Rule 11 of CPC
with reference to the appellant's contention that the result of
the election was materially affected due to the improper
nomination paper. The legal principles settled in this decision
are not relevant to the controversy involved in the facts of the
present case.
CONCLUSIONS:
16. To sum up the arguments on behalf of the applicant, it is
submitted that the preparation of the electoral roll is not a
process of election and thus cannot be challenged in an
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election petition. It is further submitted that, irrespective of the
eligibility, the only exception is that if any name is allegedly
added after the last date of submitting nominations, the
objection to the electoral roll can be made subject matter of
challenge in an election petition. It is also submitted that only if
Section 23(3) of the 1950 Act is breached, can it be questioned
in an election petition. It is submitted that the allegations
regarding the ineligibility of the voters are based on vague
allegations and thus would not warrant any trial.
17. In response, according to the learned senior counsel for
the petitioner, if any name is entered or deleted and there is an
irregular exercise of the power, the court trying the election
petition can go into question whether there was a violation of
Section 23(3) of the 1950 Act. He submitted that in view of
Section 27(4) of the 1950 Act, Sections 15, 16, 18, 21, 22 and
23 shall apply to the Teachers Constituency. Hence, according
to the learned senior counsel for the petitioner, the remedy of
filing an appeal under Section 24 was not available to the
petitioner; hence, the challenge to the electoral roll for not
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complying with the requirements of the law can be entertained
in this election petition.
18. In view of the legal principles settled in the decision of
Hari Prasad Mulshanker Trivedi and Indrajit Barua, the
objections raised in the election petition on the illegal addition
of the ineligible electors can be tried in the election petition. In
view of the well-settled legal principles as discussed in the
above paragraphs, the word 'election' has been used with
reference to the entire process, which consists of several
stages having an important bearing on the election result.
Thus, I do not find any substance in the arguments raised on
behalf of the applicant that the objection to the electoral roll
raised in the present case is not a process of election and
therefore cannot be challenged in the election petition. In the
present case, the allegations in the petition are based on
material particulars that are reproduced in the above
paragraphs. Thus, the pleadings in the election petition would
warrant a trial, as sufficient cause of action arises to challenge
the election of the applicant, in as much as, if the allegations
are proved, it will materially affect the election result. Hence,
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the petition cannot be rejected at the threshold as contended
by the applicant.
19. The rival submissions made on behalf of both parties on
the merits of the objections regarding eligibility are referred in
the above paragraphs. However, it is not necessary to examine
those submissions at this stage while deciding the prayer for
rejection of the election petition under Order VII Rule 11 of
CPC.
20. In view of the legal position as discussed in the above
paragraphs, it cannot be said that objections raised to the
electoral roll cannot be made the subject matter of a challenge
in the election petition. As referred to in the above paragraphs,
the petitioner has stated the material particulars and contended
that there was a difference of only 208 votes. The petitioner
has further pleaded the particulars about the ineligible voters
and stated that 587 ineligible electors who voted for the
applicant were illegally registered in the electoral roll. The
petitioner thus contended that if the election of respondent no.1
is declared null and void, the petitioner, being the second
highest candidate, would be entitled to be declared elected. As
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summarised in the above paragraphs, the pleadings in the
petition indicate sufficient material particulars regarding the
objections raised to the alleged illegal addition of the ineligible
persons as electors. The averments, if proved, will materially
affect the election result. Thus, the material particulars pleaded
in the petition would constitute a sufficient cause of action that
warrants a trial. Hence, the election petition cannot be rejected
at the threshold under Order VII Rule 11 of CPC.
21. For the reasons recorded above, the Interim Application
No. 8 of 2024 is dismissed.
(GAURI GODSE, J.)
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