Civil Appeal No 3634 NEC of 1989
From the Judgment and Order dated 1181989 of the Karnataka High Court in Election Petition No 6 of 1988
MC Bandare Ranjit Thomas and Mrs CK Sucharita for the Appellant
Shanti Bhushan BRL Iyenger RB Mehrotra and EC Vidyasagar for the Respondents
For the State of Karnataka M Veerappa
Raju to the State Legislative Coun cil and directing the recount of the votes after excluding those of 242 nominated members
The election was held by adopting the single transferable vote method 
The polling took place on 37
1988 and the counting was taken up on the next date that is 47 1988
After several rounds of counting the appellant was declared as the successful candi date
The election in question relates to the Chitradurga Local Authorities Constituency comprising 121 Mandal Pan chayats
The last date and time fixed for receiving nomina tion papers was 300 pm on 36
According to the appellant s case a decision was taken by the Chitradurga Zilla Parishad in its special meeting held on 285
1988 to nominate two members from each Mandal Panchayat that is a total number of 242 members
Accordingly steps were taken under the provisions of the Karnataka Zilla Parishads Taluk Panchayat Samithis Mandal Panchayats and Nyaya Panchayats Act 1983 hereinafter referred to as the Parishads Act read with the rules framed thereunder and 242 members were duly nominated in time to be included in the electoral roll
This has been denied by the election 340 petitioner respondent No 1 as also some of the respondents who contested the election
According to their case the inclusion of the names of the nominated members in the electoral roll took place after the period for nomination was over and they were therefore not included in the electoral roll in the eye of law
The main question in the case which thus arises is as to whether the names of the 242 nominated members were included in the electoral roll within the time permitted by the law
The Deputy Commissioner who was impleaded in the elec tion petition as the 5th respondent in this appeal also he is respondent No 5 had triple role to play in connection with the disputed election
He was authorised under the Parishads Act and the Karnataka Zilla Parishads Taluk Panchayat Samithis Mandal Panchayats and Nyaya Panchayats Conduct of Election Rules 1985 hereinafter referred to as the Parishads Rules to take steps for completing the nomination of the members under section 13B of the Representa tion of the People Act 1950 he was the Electoral Registra tion Officer for preparation and revision of the electoral roll and he was also the Returning Officer under the Repre sentation of the People Act 1951
According to the case of the appellant a resolution was passed by the Zilla Parishad on 285
1988 nominating the aforementioned 242 members and the Chief Secretary of the Zilla Parishad sent the list of the names to the Deputy Commissioner on 305
The Deputy Commissioner was under section 59 of the Parishads Act required to publish the said names so as to complete the process of nomination
He was also vested with the jurisdic tion to include the names in the electoral roll under the provisions of the Representation of the People Act 1950
It is relevant to note at this stage that the question of inclusion of the names in the electoral roll could arise only after the nomination was complete in the eye of law
A nominated person was entitled to be included as a voter for the election to the Council Constituency after he became a member of the Mandal Panchayat and not before
Having learnt about the nominations on the eve of the election some persons challenged the same and objected before the Deputy Commissioner to the proposed publication
However the Deputy Commissioner on 161988 passed an order directing the necessary steps to be taken under the Parishads Act and accordingly a list of the nominated members was pasted on the notice board of the office of the Deputy Commissioner
Before the nominated persons could be treated to have become members of the Panchayats it was necessary that certain other steps also were taken in accordance with the Parishads Act and the Parishads Rules
Subsection 1 of section 40 of the Parishads Act which is mentioned below 341 makes it clear that a nominated person becomes the member of a Mandal Panchayat only on the publication of his name under section 59 40
Commencement of term of Office 1 The term of office of the members elected at a general election or at a second election held under sub section 7 of section 5 or nominated shall commence on the date imme diately after the expiry of the term of office of the out going members of the Mandal Panchayat or the period of appointment of an Administrative Committee or Administrator under section 8 or on the date of publication of their names under sub section 9 of section 5 whichever is later
 The manner of publication of the names has been prescribed by r 73 of the Parishads Rules in the following terms 73
Publication of names of members elected or nominated to Mandal Panchayat
The Deputy Commissioner shall as soon as conveniently may be publish the list containing the names of the members elected or deemed to have been elected or nominated to the Mandal Panchayat by causing such list to be affixed on the notice board of his office office of the Tahsildar concerned Mandal Panchayat and in the Chavadi
 With a view to complete the nomination the Deputy Commis sioner sent out the names for affixing the same on the notice boards of the office of the concerned Tahsildars and Mandal Panchayats and in the Chavadis
The Deputy Commis sioner could have taken steps for inclusion of the names in the electoral roll of the State Council Constituency after receipt of the information of their due publication in the offices situated at different places
There is a serious dispute as to when the necessary information became avail able at Chitradurga and the formal steps of including those names in the electoral roll were actually taken
After examining the evidence led by the parties the High Court has held that the names were not included in the electoral roll by 300 pm on 361988
Mr MC Bhandare the learned counsel appearing in support of the appeal has contended that the High Court fell in grave error in deciding the disputed issue against the appellant as it failed to 342 take note of the provisions of the Explanation to section 401 of the Parishads Act which reads as follows Explanation
When the names of members elected at a general election or at a second election held under sub section 7 of section 5 or nominated are published on more than one date the date by which the names of not less than 23rd of the total number of members has been published shall be deemed to be the date of publication for  purposes of this section
 The learned counsel argued that the evidence on the record establishes that information of the publication of the names of more than 23rd of the total number of nominated persons had reached the Deputy Commissioner in time for the amend ment of the Council Constituency roll and the Deputy Commis sioner had actually made an order for the inclusion of the names in the roll on 261988
Accordingly the final elec toral roll including the nominated members was ready in the office of the Returning Officer and the appellant as a matter of fact had inspected the same
Reliance has been placed on his deposition as well as on the documentary evidence in the case
The most important evidence in the case is to be found in the statement of the Deputy Commissioner examined as PW 4
Besides the election petitioner examined several other witnesses
An examination of evidence on record leads to the conclusion that the Chief Secretary of the Zilla Parishad had sent the list of the nominated members to the Deputy Commissioner on 305
1988 and a copy thereof was placed on the notice board of the Deputy Commissioner s office on 161988
However that did not complete the process of nomination
The provisions of section 401 of the Parishads Act make it abundantly clear that a nominated person would become a member of the Panchayat only after due publication of his name in accordance with r 73
It was therefore necessary to have the names of the nominated persons affixed on the notice board of the office of the Tahsildars the notice boards of the Mandal Panchayats and in the Chavadis
Mr Bhandare is right that in view of the Explanation to section 401 it was not necessary for the Deputy Commissioner to have waited for the information in this regard from all the places
On his satisfaction that the publication of 23rd of the total number of the names were complete he was free to proceed further and to revise the electoral roll under the Representation of the People Act 1950 by including all the nominated members
But the ques tion is as to when the Deputy Commissioner 343 did receive the information about the 23rd of the total number and further whether he as a matter of fact revised the electoral roll before 300 pm on the 3rd of June 1988
It is significant to note that the electoral roll did not get automatically amended on the completion of the process of nomination of the additional members
Ordinarily the question of inclusion of a new name in the electoral roll arises only when an application is made before the Electoral Registration Officer in this regard but the power can be exercised by the Officer even without such an appli cation
In the present case it appears that a tactical battle was going on in the political arena between the two rival groups one attempting to get the electoral roll amended by the inclusion of the nominated members and the other trying to foil it
The Deputy Commissioner was under pressure from both sides and as the evidence discloses he had to consider the different stands taken before him which slowed down the entire process
Let us examine the evidence in this background
The Deputy Commissioner has in his evidence stated that his office received the information about the nomina tion from the Zilla Parishad on 305
1988 when he was at Bangalore
He returned back to Chitradurga on 315
1988 and examined a copy of the resolution of the Parishad as also the list of the nominated persons
Soon thereafter he was approached by the two groups one supporting the resolution and the other opposing it
Ultimately he decided to publish the list as required by section 59 of the Parishads Act read with r 73 of the Parishads Rules
Accordingly a copy of the list was placed on the notice board of his office and lists for the publication in the Taluk offices were handed over to the Tahsildars who were already present in Chitra durga The lists for the publication in the offices of the Mandal Panchayats and Chavadis which were scattered at considerable distances were sent to the Chief Secretary of the Zilla Parishad
The Deputy Commissioner postponed the further step for modification of the electoral roll awaiting the report on publication from the different offices
Some reports from the Taluk offices were received on 161988 itself but the Deputy Commissioner in his evidence was not in a position to give the details
His examination in chief was therefore discontinued and he was asked to bring the documents on the next date with reference to which he could answer the further questions
Accordingly he later appeared with the papers and stated that the last reports regarding the publication from the Taluk Office of certain places were received on 461988
In his cross examination the Deputy Commissioner stated that on the basis of his records he could say that he had received reports from 5 Taluk Offices only on 161988 and 344 none from the Mandal Pancnayats and on 261988 he had received reports about the publication in the Mandal Pan chayats from 2 Taluks
As there were only 9 Taluks in his district it can be presumed that information about the publication of 23rd number at Taluk offices had reached the Deputy Commissioner by the evening of the 2nd June 1988
However there does not appear to be any relevant evidence available on the records and none has been shown to us by the learned counsel with regard to the publication of the requisite number of names in the Mandal Panchayat offices and in the Chavadis
It has been contended on behalf of the appellant that since the burden is on the election petition er to prove such facts which may vitiate the election he must fail in the present state of evidence
Before adverting to this aspect we propose to consider the other evidence relating to the revision of the electoral roll
The electoral roll was produced before the High Court and was marked as Ext
Although it ought to have borne the dates of its preparation and revision none is to be found there
The inclusion of the names of the nominated members was according to the evidence done by attaching slips to Ext
The Deputy Commissioner was unable to state as to the date on which Ext
P 6 was prepared and typed
So far the updated Voters  List was concerned it was placed on the notice board of the office of the Deputy Commissioner at 855
pm on 381988 after a lot of wrangling between the rival groups
In answer to a question in cross examination the Deputy Commissioner stated I cannot say if the preparation of this list was complete by 300 pm on 361988 as it is a ministerial part of it As has been mentioned earlier the dispute about the validi ty of the belated nominations had been raised on 315
1988 before the Deputy Commissioner when he returned to Chitra durga from Bangalore and he took a decision on 161988 to proceed with the publication so as to complete the process of nomination
According to his statement which he made after verifying from the documents the necessary informa tion from the Mandal Panchayats and Chavadis started reach ing him on 261988
But they were inadequate as they were only from two Taluks
At the earliest the information about the publication of the necessary number of names reached Chitradurga on 361988 when the two groups were arrayed against each other in his office one urging the revision of the electoral roll and the other opposing it
The deadline was 300 pm on 361988 which was approaching fast
But it 345 is important to note that the Deputy Commissioner was not aware that the period available for the revision of the electoral roll was expiring in the afternoon
He was under a wrong impression that the entire calender date of 361988 was available for the purpose
Towards the end of paragraph 3 in his written statement the Deputy Commissioner categori cally stated that he was under a bona fide impression that direction for the inclusion of the name in the electoral roll of the constituency shall be given under Section 23 at any time on the last date for making nominations
In the earlier writ petition between the parties in which the issue raised was not decided the respondent No 5 had made a similar statement in paragraph 2 of his reply
Being under that wrong impression he was not in a hurry to take the decision in regard to the revision of the electoral roll quickly
The election petitioner PW 1 was himself not a candidate but was an active supporter of one of the candi dates and was seriously involved in the question of the revision of the roll and as stated in his evidence the publication of the names under r 73 of the Parishads Rules was complete by 361988 only in some of the Mandal Panchay ats
After the deadline at 300 pm on 361988 was crossed an application which has been marked as Annexure R III  signed by the Secretary District Janata Party was given to the Deputy Commissioner asserting that no further additions or deletions in the electoral roll were permissible and an endorsement to that effect should be made by the Returning Officer
The Deputy Commissioner did not immediately give his reply thereto
The parties were also insisting for the publication of the electoral roll in its final shape
Ac cording to the further evidence of PW 1 the Deputy Com missioner promised them that he would contact the Chief Electoral Officer at Bangalore by telephone and only there after he would decide on his further action
The party workers including the witness awaited the further develop ment and at 855 pm the Deputy Commissioner declared that the names of the newly nominated members were included in the voters list
Soon thereafter he also replied to the letter of the Janata Party Secretary by a letter headed as ENDORSEMENT stating With reference to the above you are hereby informed that action has been taken to include the nominated members by the Zilla Parishad to the Mandal Panchayat in the District and as per Section 27c read with Section 233 of the RP Act 1950 the Electoral Roll for Local Authority Constituency has been up dated and a copy pasted in the office on 3rd June 1988 at 855 PM 346 Two other Janata Party members have been examined as PWs 2 and 3 in the case supporting the above version
Mr Bhandare has relied upon the oral evidence of the appellant wherein he claimed to have gone to the office of the Deputy Commissioner on 26 1988 to secure a prescribed form for filing his nomination as a candidate in the elec tion and was allowed to examine the electoral roll which was kept on a table in the office
He asserts that after verify ing his name and serial number in the list he discovered that the names of nominated members were also included therein
He stuck to this story in the cross examination and insisted that it was at 1100 in the morning on 261988 that he had seen the revised roll
It is difficult to accept his case on this evidence
According to the Deputy Commis sioner himself the report about the publication in the office of the Mandal Panchayats from only two Taluks were received by the evening of 26
1988 and it is therefore not believable that the Deputy Commissioner had amended the roll before 361988
The Deputy Commissioner has not claimed to have revised the roll on 261988
On the other hand he made a very significant assertion in his written statement in the present election petition which is quoted below The Deputy Commissioner issued direction for the inclusion of the names of nominated members on 361988 and the elec toral roll for local Authorities Constituency has been up dated and a copy pasted in the office on 361988 at 855 PM In the earlier writ petition also he had made a similar statement as mentioned below towards the end of paragraph 2 of his reply The Deputy Commissioner issued direction for the inclusion of the name of Respondents 3 to 246 on 3 6 1988 and the electoral roll for Local Authorities Constituency has been up dated and a copy pasted in the office on 3 6 1988 at 8 55 PM A plain reading of the above statement suggests that both the updating of the electoral roll and pasting a copy there of took place on 36
1988 at 855 pm
The statement cannot be interpreted to mean that the revision of the electoral roll had been done about 6 hours earlier
The circumstances that i the Deputy Commissioner was not able to assert in his evidence before the Court that the revision of the roll had taken place before 300 pm ii he was under an impression 347 that the revision was permissible till the midnight and iii in spite of the available documents to him he was not in a position to assert that the report of publication of the names of 23rd or more of the nominated persons in the offices of the Mandal Panchayats had been received in his office before the deadline strongly support the case of the election petitioner
It has been contended on behalf of the appellant that the burden to prove that the names of the nominated members were not included in the electoral roll in time is on the election petitioner and unless he is able to lead acceptable evidence to discharge the same the election petition is bound to fail
The argument is that the oral evidence led by the petitioner cannot be accepted for recording a finding that the controversial names had not actually been included in the electoral roll before 300 pm which was in the custody of the Deputy Commissioner
The fact that political opponents of the appellant who were opposing the inclusion of the names were repeatedly asking the Deputy Commissioner orally as well as in writing to inform them whether the names were actually included in the electoral roll or not itself shows that they could not be sure of the actual position till 855 pm
The bald assertion of the witnesses for the petitioner in this regard cannot be given much weight
Thus the position according to the learned counsel available from the records of the case is that there is no reliable evidence on the crucial issue and therefore the election petition must be dismissed
Apart from supporting the finding of fact recorded by the High Court in favour of the election petitioner Mr Shanti Bhushan learned counsel for the respondents argued that the electoral roll must be held to have been modified in the eye of law only at 855 pm when the alleged inclu sion of the names was made public and not earlier
He rea lied upon the decision in Bachhittar Singh vs State of Punjab 1962 Supp
3 SCR 713
The appellant in that case was appointed as a Kanungo and later promoted as Assistant Consolidation Officer in the former State of Pepsu
A de partmental inquiry was held against him as a result of which he was dismissed by the Revenue Secretary
He preferred an appeal to the State Government
The Revenue Minister ex pressed his opinion in writing that instead of his dismissal he should be reverted to his original post of Kanungo
The said remarks were however not communicated to the appel lant officially and the State of Pepsu was merged with the State of Punjab
The matter was thereafter re examined and the Chief Minister passed an order confirming the dismissal of the appellant
This order was com 348 municated to the appellant which led to the filing of the writ petition in the High Court
The High Court dismissed the writ application and the appellant appealed before this Court by special leave
One of the questions considered by this Court was as to the effect of the order in writing by the Revenue Minister Pepsu recommending reversion of the appellant in place of his dismissal
For the reasons men tioned below the Court held that the order of the Revenue Minister was of no avail to the appellant
Thus it is of essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order
For until the order is communicated to the person affected by it it would be open to the Council of Ministers to consider the matter over and over again and therefore till its communi cation the order cannot be regarded as anything more than provisional in character
As has been pointed out earlier the evidence of the appellant that he had actually seen the final voters list in the office of the Deputy Commissioner must be rejected as unreliable
There is no acceptable evidence at all to show as to when the alleged corrections were made in the voters list
At 855 pm on 361988 the inclusion of the names was made public for the first time
The question is as to whether the electoral roll will be deemed to have been modified when it was made public at 855 pm or earlier when the actual correction in the list was made in the Deputy Commissioner s office which fact was kept confiden tial in spite of repeated demands for information
Besides fixing the identity of the persons to be allowed to vote at the election the purpose of the prepara tion of the roll is to enable the persons included therein to decide as to whether they would like to contest the election
It is also helpful to such persons in assessing their chances of success by reference to the voters finally included in the roll
For the purpose of canvassing also the intending contestant requires a copy of the final vot ers  list
The intending contestants and their supporters thus heavily depend upon the final electoral roll for decid ing their future conduct and it is therefore extremely essential that it is made available to them before the expiry of the period fixed for filing the nomination papers
It the roll as it stood earlier was confidentially correct ed by the Electoral Registration Officer concerned sitting in his office which did not see the light of the day the same cannot be considered to have been prepared according to law
349 The observations in Bachhittar Singh s case will be fully applicable in as much as the Officer here also could recon sider the list again
Mr Bhandare in reply relied upon the judgment in BK Srinivasan and Others vs State of Karnataka and Others  and argued that unlike the Karnataka Town and Country Planning Act 1961 and the Rules which were under consideration in the said case the Representation of the People Act does not require a display of the electoral roll
The learned counsel is correct and he rightly said that putting the final voters list on the notice board is not a necessary requirement under the law
But that does not lead to the further conclusion that the electoral roll can be prepared secretly and kept in the drawers of the Officer without any information or knowledge to persons who are interested in finding out its final shape
The reported case was dealing with the principle of subordinate legislation and in paragraph 15 of the judgment made important observa tions which support the respondents  point of view
It was stated thus There can be no doubt about the proposition that where a law whether Parliamentary or subordinate demands compliance those that are governed must be notified direct ly and reliably of the law and all changes and additions made to it by various process
Whether law is viewed from the standpoint of the conscientious good man  seeking to abide by the law or from the standpoint of Justice Holmes s Unconscientious bad man  seeking to avoid the law law must be known that is to say it must be so made that it can be known
 It was further observed that unlike Parliamentary legisla tion which is publicly made delegated or subordinate legis lation is often made unobtrusively in the chambers of a Minister a Secretary to the Government or other official dignitary and it was therefore necessary that subordinate legislation in order to take effect must be published or promulgated in some suitable manner whether such publication or promulgation is prescribed by the parent statute or not
It will then take effect from the date of such publication or promulgation The decision instead of helping the appel lant is clearly against him
The vital difference between an Act of a legisla ture and a subordinate legislation was earlier noted in Harla vs State of Rajasthan  The Acts of the legislature are passed by the accredited representatives of the people who in theory can be trusted to 350 see that their constituents know what has been done and this is done only after debates take place which are open to the public
The matter receives wide publicity through the media
But the case is different with the delegated legisla tion and if we may add also in the case of orders passed by the authorities like that in the present appeal before us
The mode of publication can vary but there must be reasonable publication of some sort
A reference may also be made to the decision in Fatma Haji Ali Mohammad Haji and Others vs The State of Bombay   where the question as to whether certain powers given to the Govern ment for issuing a direction to the Collector not to act in accordance with the prescribed rules had been actually exercised or not was under consideration
It was stated that the power had to be exercised in clear and unambiguous terms and the decision that the power has been exercised should be notified in the usual manner in which such decisions are made known to the public Before closing this discussion we should refer to the case of State of Maharashtra vs Mayer Hans George 1965 1 SCR page 123 where the English decision of Johnson vs Saragant  Sons  relied upon by this Court in Harla s case came to be considered
The respondent Mayer Hans George was a German Smuggler who was carrying gold from Switzerland to Manila by an aeroplane which stopped at Bombay for sometime
The respondent did not get down from the plane but he was searched by the Indian Officers and was found to be carrying gold illegally
He was charged with criminal activity on the basis of a notification requiring him to declare the gold as transhipment cargo in the mani fest of the aircraft which he had failed to do
His defence was that he had no knowledge of this notification
After his conviction by the trial court the High Court on appeal acquitted him
The Supreme Court by a majority judgment reversed the decision and found him guilty on the ground that the notification had been published in the official gazette of India
The defence plea that since he was a foreigner and was therefore not expected to be aware of the notification was rejected
While discussing the argu ments addressed in the case the Court appreciated the criticism of Prof CK Allen against the judgment in John son vs Sargant but there was no comment or suggestion against the correctness of the judgment in Harla vs The State of Rajasthan
On the other hand the observations at page 163 G H are on the same lines
It was stated that where there is no statutory requirement as to the mode or form of publication we conceive the rule to be that it is necessary that it should be published in the usual 351 form ie by publication within the country in such media as generally adopted to notify to all persons concerned the making of the rules Having regard to the nature and pur pose of the power for rectification of the electoral roll by the Electoral Registration Officer the principle enunciated in the abovementioned cases must be held to be applicable
We accordingly hold that in the eye of law the electoral roll in question was not modified by the inclusion of the names of the nominated members before 855 pm on 361988
We therefore affirm the decision of the High Court and dismiss the appeal with costs
RSS Appeal dismissed


Summary:
Respondent Landlady started an eviction proceeding under Section 131c of the Bombay Rent Act against the petitioner tenant running a shop selling sweet meats and farsen on the tenanted premises as he was convicted twice under the Prevention of Food Adulteration Act
Accepting claim of the land lady the High Court ordered eviction
Tenant contending that convicted of using the premises in Section 131c be limited to offences involving the user of the premises that the provision does not cover non residential premises filed the Special Leave Petition
Dismissing the petition this Court HELD 1
Section 131c covers both residential as well as non residential premises
If clause c is not applicable to business premises there is no other similar provision in the Bombay Rent Act relating to the business premises
The consequence would be that the tenant in business premises could use the premises for committing any offence or he could commit nuisance and annoyance to the adjoining or neighbouring occupiers and yet claim that he is not liable to be evicted on that grounds
Whereas the tenant of residential premises would not be able to commit such offence without the penalty of eviction
Such an interpretation would render the Section vulnerable to attack under Article 14 of the Constitution
155D G
153 2
The expression convicted of using the premises cannot be given too liberal construction so as to cover every case of conviction of the tenant156B 3
Section 131c was not intended to be a moral code of conduct for the tenant
For each and every offence committed at the premises the tenant cannot be exposed to the risk of eviction
The crime may be forced upon the tenant at the premises by third parties
There may be casual or incidental crimes
There may be technical offences connected with the trade or licence to trade
There may be crimes where use of the premises has nothing to do except being the scene of the offence
All such cases cannot satisfy the requirements of Section 131c
157A B 4
The tenant must take advantage of his tenancy of the premises and of the opportunity they afford for permitting the crime
Only such crimes could fall within the scope of Section 131c
There need not be continuous for repeated user of the premises for committing such crimes
157B C In the instant case the tenant used the premises for carrying out illegal sale of adulterated food along with his usual business in sweet meats and farsen
He used the premises deliberately and taken advantage of his tenancy for committing the offences in the course of his trade
He can be evicted under Section 131c 157C D section Schneiders and Sons Ltd vs Abrahams