Appeal No 2394 of 1968
Appeal under section 116A of the Representation of the People Act 1951 from the judgment and order dated July 24 1968 of the Mysore High Court in Election Petition No 9 of 1967
B section Patil Vineet Kumar and Shyamala Pappu for the appellant
A V Albal and M Veerappa for respondent No 1
The Judgment of the Court was delivered by GROVER J
This is an appeal from a judgment of the Mysore High Court dismissing an election petition which had been filed by two electors challenging the election of respondent No 1 B D Jatti from the Jamkhandi Constituency at the General Elections held in 1967
The last date for filing of nomination papers was January 19 1967
The polling took place on February 2 1967 and the result was declared on February 22 1967
The only contesting candidates were respondent No 1 and respondent No 2 M M Shivappa
Respondent No 1 secured 24578 votes whereas respondent No 2 got 21261 votes
The election petition was filed 613 on April 6 1967 by I section Ghattarki and P R Belagali who were electors in the Jamkhandi Constituency Each of them had acted as an election agent of respondent No 2
Petitioner No 1 Ghattarki was his election agent from February 10 1967 till the last date of the election and petitioner No 2 Belagali acted as an election agent from January 19 1967 to February 4 1967
The trial of the petition commenced on December 11 1967 and after certain witnesses had been examined on February 1 1967 petitioner No 1 Ghattarki made an application praying for permission to withdraw from the petition for all purposes
Petitioner No 2 objected to his withdrawal
The learned judge dismissed the application of petitioner No 1 on the ground that section 1101 of the Representation of the People Act 1951 hereinafter called the Act dil not permit withdrawal by one petitioner without the consent of his co petitioner
It has however been noted by the learned judge that both the petitioners continued to be represented by one counsel Shri B section Patil
It may be mentioned at this stage that the election petition is a very long document and that the evidence which has been produced by the parties is also voluminuous
The judgment of the learned judge consists of 227 printed pages
A number of issues were framed but the controversy before us has been confined only to certain points
The first question which falls for consideration arises out of issue No 1 which consists of three clauses and was framed in the following terms 1 a Do the petitioners prove that the 1st respondent was not an elector at all and therefore not qualified to stand for election  b Are the petitioners precluded from questioning the validity of the entry of the name of the 1 st respondent as elector in the Electoral Roll relating to Jamkhandi Constituency  c Has this Court no jurisdiction to go into the said question of validity  It was held by the leaned trial judge that the petitioners in the election petition were not precluded from questioning the validity of the entry of the name of respondent No 1 as an elector in the Electoral Roll relating to Jamkhandi Constituency and that the c court had the jurisdiction to go into that question
It was however found on a consideration of the evidence that the petitioner had failed to prove that respondent No I was not an elector and was not qualified to stand for election to a seat in the Mysore Legislative assembly from Jamkhandi constituency
12 LA36SupCI71 614 If the view of the trial judge that the court had the jurisdiction in an election petition to go into the question of the validity of an entry in an Electoral Roll is erroneous and if the court was precluded from deciding this matter it will be altogether unnecessary to consider the evidence led for the purpose of clause a of issue No 1
The principal allegations of the petitioners on issue No 1a were that respondent No I had ceased to be a person ordinarily resident within the constituency of Jamkhandi during the period relevant to the 1967 General Elections
It was further asserted that by long stay in the city of Bangalore the name of respondent No I had been entered in the Electoral Roll relating to the municipal area of that city and that respondent No 1 with the object of getting his name entered in the Roll of Jamkhandi Constituency had either got his name deleted from the Bangalore Roll or had tried to get it changed from that Roll to the Roll of Jamkhandi Constituency
In order to decided the jurisdiction and powers of the court trying an election petition under the provisions of the Act to determine the validity or legality of an entry in an Electoral Roll we shall have to look at the relevant provisions of the Act
The Representation of the People Act 1950 to be called the Act of 1950 and the Constitution
Part 11 of the Act deals with the qualifications and disqualifications for Membership of Parliament and State Legislature
Section 5c is as follows  A person shall not be qualified to be chosen to fill a seat in the legislative assembly of a State unless
a     b     c in the case of any other seat he is an elector for any Assembly constituency in that State
 The word elector is defined by section 2 1  e to mean in relation to a constituency a person whose name is entered in the Electoral Roll of that Constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Act of 1950
Chapter III of the Act contains disqualifications for Membership of Parliament and State Legislatures
According to section 7b disqualified means disqualified for being chosen as and for being a Member of either House of Parliament or of the Legislative Assembly etc
Sections 8 to 11 give the disqualifications on conviction for certain offences for commission of corrupt practices and other matters which need not be noticed
The position under 615 the Act
therefore is that in order to stand for election to a legislative assembly of a State a person must be an elector for any assembly constituency in that State and he must not be subject to any of the disqualifications mentioned in section 16 of the Act of 1950 or the disqualifications given in Chapter III of the Act
The Act of 1950 was meant to provide for the allocation of seats and the delimitation of constituencies for the purpose of elections to the House of the People and the legislatures of States the qualifications of voters at such elections the preparation of Electoral Rolls  and matters connected therewith
Part III thereof contains provisions for Electoral Rolls for assembly constituencies
According to section 15 for every constituency there shall be an Electoral Roll which shall be prepared in accordance with the provisions of the Act of 1950 under the superintendence direction and control of the Election Commission
Section 1 6 is in these terms  section 16
Disqualifications for registration in an electoral roll 1 A person shall be disqualified for registration in an electoral roll if he a is not a citizen of India or b is of unsound mind and stands so declared by a competent court or c is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections
2 The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included  Provided that    
Section 19 gives the conditions of registration in the Electoral Roll
It provides that every person who is not less than 21 years of age on the qualifying date and is ordinarily resident in a constituency shall be entitled to be registered in the Electoral Roll for that constituency
Section 20 deals with the meaning of ordinarily resident
The preparation and revision of Electoral Roll has to be made in accordance with section 21 and the correction of entries is provided by section 22
Section 24 contains a provision for an appeal which can be filed to the Chief Electoral Officer from any order of the Electoral Registration Officer under section 22 or section 23
Under section 30 no civil court shall have jurisdiction to entertain or 616 adjudicate upon any question whether any person is or is not entitled for registration in an Electoral Roll for a constituency
There are elaborate rules which have been promulgated for preparation and revision of the Electoral Rolls namely Electors  Rules 1960
It may be noted that the conditions about being ordinarily resident in a constituency for the purpose of registration are meant for that purpose alone and have nothing to do with the disqualifications for registration which are prescribed by section 16 of the Act of 1950 which alone are relevant to the definition of an elector as given in section 2 1 e of the Act
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
Article 173 of the Constitution relates to qualifications for membership of the State legislature
It reads  article 173 A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he a is a citizen of India and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule b is in the case of a seat in the Legislative Assembly not less than twenty five years of age and in the case of a seat in the Legislative Council not less than thirty years of age and c possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament The qualifications as mentioned previously have been prescribed by section 5 of the Act
Condition b in section 19 of the Act of 1950 of being ordinarily resident in a constituency finds no place in any of the provisions of the Act or in article 173 of the Constitution
The decision of this Court in Durga Shankar Mehta vs Thakur Raghurai Singh  Others1 involved non compliance with the provisions of clause b of article 173 and in case of a candid ate who was constitutionally incapable of being returned as a member it was held that the Election Tribunal could declare his election to be void by applying sub section
2 c of section 1 00 of the Act
The present case is clearly not of that kind and
no violation or in 1 1955 1 SCR 267
6 17 fringement of any provision of article 173 has been or could be established
The other provisions relating to election are contained in Part XV of the Constitution
Article 324 deals with the superintendence direction and control of elections which are vested in the Election Commission
Article 325 declares that no person shall be ineligible for inclusion in an Electoral Roll on account only of religion race caste sex or any of them
Article 326 says that the elections to the House of the People and the Legislative Assemblies of States shall be on the basis of adult franchise
Article 327 gives power to the Parliament to make provisions with respect to elections to Legislatures
Article 329 bars the interference of courts in electoral matters
By virtue of that Article no election shall be called in question except by an election petition
It is abundantly clear that in the present case the question whether respondent No 1 was ordinarily resident in Jamkhandi constituency during the material period and was entitled to be registered in the Electoral Roll could not be the subject matter of enquiry except in accordance with the provisions of the Act of 1950
The grounds on which the election can be declared to be void under the Act are set out in section 100 of the Act
Clause d is that the result of the election in so far as it concerns a returned candidate has been materially affected i   ii  iii   iv by any non compliance with the pro visions of the Constitution or of this Act or of any rules or orders made under this Act
 Nothing could be clearer than the ambit of this provision
It does not entitle the court in an election petition to set aside any election on the ground of non compliance with the provisions of the Act of 1950 or of any rules made thereunder with the exception of section 16
The learned trial judge does not appear to have fully and properly appreciated the correct ratio and true determination of the points involved in Durga Shanker Mehta s1 case
The distinction is too obvious to bear repetition
It seems that a Bench decision of the Mysore High Court in K Sriramulu vs K Deviah2 was distinguished without any justification by the learned judge
It was clearly laid therein that in an election petition the correctness of the Electoral Roll cannot be gone into
The decision of a Full bench of the Punjab and Haryana High Court in Roop Lal Mehta vs Dhan Singh  Others1 about the finality of the Electoral Roll was also not noticed
In this view of the matter the evidence relating to issue No 1a becomes wholly irrelevant and redundant
The decision on that issue in favour of respondent No 1 is however affirmed
3 618 His Lordship next considered the evidence in respect of the allegations of corrupt practice and then proceeded  In conclusion it may be observed that the impression left by the facts and circumstances of this case on our mind is that the authorities concerned in the Mysore State were not careful or discreet enough in posting Hasbi for the second time to Jamkhandi in July 1966 when it was known that the relations between him and respondent No 2 had been very unhappy in the past and by which time it could also be foreseen and appears to be known that there would be another contest between respondent No 1 and respondent No 2 who had been fighting elections since 1952
Similarly with regard to Kallur it would have been a wise step to transfer him before the elections from the area in which Jamkhandi is situate because he had also figured similarly in the pre vious contest between the two respondents
Free and fair elections are the very foundation of democratic institutions and just as it is said that justice must not only be done but must also seen to be done similarly elections should not only be fairly and properly held but should also seem to be so conducted as to inspire confidance in the minds of the electors that everything has been above board and has been done to ensure free elections
It will be a sad day in the history of our country when the police and the Government officers create even an impression that they are interfering for the benefit of one or the other candidate
This is particularly so if a candidate is holding an important position or assignment like respondent No 1 who at the material time was a Minister in the State
The appeal fails and is dismissed
In view of all the facts and circumstances of the case we make no order as to costs in this Court
RKPS Appeal dismissed


Summary:
By an election petition two electors of the constituency the appellants challenged the election of the first respondent to the Mysore Legislative Assembly in 1967 from the Jamkhandi constituency
It was alleged inter alia that the first respondent had ceased to be a person ordinarily resident within the constituency during the period relevant to the 1967 General Elections and the validity of the entry of his name on the Electoral Roll was questioned it was claimed that he was not therefore qualified to stand for election from the constituency
The petition also contained allegations of corrupt practices including misuse by certain Police Officers of their position to prevent voters from voting freely and malpractices by the Presiding Officer at the time of polling etc
After framing an issue on the question and taking the view that the Court had jurisdiction to determine the validity of the inclusion of the first respondent s name as an elector on the Electoral Roll the trial judge held on a consideration of the evidence that the petitioners had failed to prove he first respondent was not an elector and was not qualified to stand for election from the constituency
The High Court also rejected the allegations of corrupt practices and dismissed the petition On appeal to this Court HELD  i Under section 30 of the Representation of the People Act 1950 no civil court shall have jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled for registration in an Electoral Roll for a constituency
There are elaborate rides which have be en promulgated for preparation and revision of the Electoral Rolls namely Electors  Rules 1960
The conditions about being ordinarily resident in a constituency for the purpose of registration are meant for that purpose alone and have nothing to do with the disqualifications for registration which are prescribed by section 16 of the Act of 1950 which alone are relevant to the definition of an elector as given in section 21e of the Act of 1951
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
The present case did not also involve any violation or infringement of Article 173 or any other provision of the Constitution
615 H The question whether respondent No 1 was ordinarily resident in Jamkhandi constituency during the material period and was entitled to 612 be registered in the Electoral Roll could not therefore be the subject matter of enquiry except in accordance with the provisions of the Act of 1950
Under section 1001 d an election can be declared void only if the result of the election in so far as it concerns a returned candidate has been materially affected by any non compliance with the provisions of the Constitution or of the Act of 1951 or of any rules or orders made thereunder
Nothing could be clearer than the ambit of this provision
It does not entitle the court in an election petition to set aside any election on the ground of non compliance with the provisions of the Act of 1950 or of any rules made hereunder with the exception of section 16
617 E Durga Shankar Mehta vs Thakur Raghurai Singh  Others 1955 1 SCR 267 K Sriramulu vs K Deviah  Roop Lal Mehta vs Dhan Singh and Others  referred to
On the evidence no reasons were shown for this court to differ from the findings of the Trial Judge on the allegations of corrupt practices
Meghraj Patodis vs R K Birla  Others Civil Appeal No 109469 dated 10 9 1970 referred to