Appeal No 25 of 1969
Appeal under section 116 A of the Representation of the People Act 1951 from the judgment and order dated December 11 1968 of the Patna High Court in Election Petition No 4 of 1968
D Goburdhun for the appellant
Birendra Prasad Sinha SK Bagga Harder Singh and section Bagga for respondent No 1
Harder Singh for respondents Nos 2 and 3
840 The Judgment of the Court was delivered by Hegde J
The principal question raised in this appeal under section 116A of the Representation of People Act 1951 to be hereinafter referred to as the Act is as to the scope of section 233 of the Representation of People Act 1950 to be hereinafter referred to as the 1950 Act
A few subsidiary contentions have also been canvassed
They will be considered at the appropriate stage
The election petition from which this appeal arises relates to the Darbhanga Local Authorities Constituency of the Bihar Legislative Council
The calendar for the election for that constituency was as follows 1
Last date for filing nomination papers 2 4 1968
Date of scrutiny of nomination papers 4 4 1968
Last date for withdrawal of candidatures 6 4 1968
Date of Poll 28 4 1968
Date of declaration of result 29 4 1968
Originally five candidates submitted their nomination for the election in question
On scrutiny all of them were held to have been validly nominated
Two of them later withdrew their candidatures within the period prescribed leaving in the field Shri Baidyanath Panjiar the appellant herein Shri Raj Kumar Mahaseth respondent No 2 and Shri Gangadhar respondent No 3
There were six polling stations in the constituency
134 votes were polled out of which 33 votes were polled at Dalsingsarai polling station
Counting of the votes showed that the appellant had secured 45 the second respondent 49 and the third respondent 40 first preference votes
As none of them obtained an absolute majority of the votes cast the third respondent was eliminated and his second preference votes were taken into
consideration
14 of his second preference votes went to the appellant and 5 to the second respondent
Therefore the appellant was declared elected
His election was later challenged by the 1st respondent herein
The High Court has set aside the election and declared the 2nd respondent elected on the ground that on counting the validly cast votes the second respondent has secured more votes than the appellant
It held that some of the votes Cast were not valid votes
The controversy relating to the validity of some of the votes polled arose under the following circumstances
In the electoral roll as it stood on the last date of filing nomination papers the registered voters were only 123 16 of the registered voters were of the members of Dalsingsarai Notified Area Committee
On April 13 1968 as per a notification under section 389c of the Bihar 841 and Orissa Municipal Act 1922 40 members were nominated as members to the said Notified Area Committee in place of the old members
Most of them were newly appointed members
To be exact 35 of the 40 members nominated were new members
Thereafter the electoral roll was amended on the 27th April 1968 just a day prior to the polling
As per the amended electoral roll there were 39 electors in the Dalsingsarai polling station
Only four of them stood registered in the electoral roll as it stood on April 2 1968
12 of those who were electors under the original roll were removed from the roll
33 out of the 39 electors included in the electoral roll relating to
Dalsingsarai polling station exercised their franchise during the poll on April 28 1968
The question for consideration is whether it was within the competence of the electoral registration officer to amend the electoral rolls after the last date for making the nomination was over
Provisions relating to the preparation of electoral rolls for the Legislative Councils  Constituencies are found in Part IV of the 1950 Act
Section 272 of the Act prescribes the mode of preparation of the electoral rolls regarding the local authorities constituencies of a Legislative Council
Clause e of that sub section stipulates that provisions of sections 15 16 18 22 and 23 shall apply in relation to local authorities  constituencies as they apply in relation to assembly constituencies
Section 22 deals with correction of entries in the electoral rolls
Section 23 deals with the inclusion of names in the electoral rolls
Sub section
3 of that section provides that 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 nomination for an election in that constituency or in the parliamentary constituency within which that constituency is comprised and before the completion of that election
 The object behind sub section
3 of section 23 of the 1950 Act would be clear if we examine the scheme of the Act and the principles underlying that scheme
Part III of the 1950 Act provides for the preparation of the electoral rolls for assembly constituencies
Section 15 provides that for every constituency there shall be an electoral roll which shall be prepared in accordance with the provisions of that Act under the superintendence direction and control of the Election Commission
Section 16 enumerates what disqualifications will disentitle a person from being enrolled as a voter
Section 18 provides that no person shall be entitled to be registered in the electoral roll for any constituency more than once
842 Section 18 enunciates the principle one person one vote
Section 22 provides for correction of entries in the electoral rolls
Section 23 1  permits a person whose name is omitted from the rolls to apply for inclusion
Sub section 2 of section 23 authorises the electoral registration officer to include the name of the applicant in the rolls if he is satisfied that he is entitled to be registered
The object of the aforementioned provision is to
see that to the extent possible all persons qualified to be registered as voters in any particular constituency should be duly registered and to remove from the rolls all those who are not qualified to be registered
3  of section 23 is an important exception to the rules noted earlier
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
If there was no such provision there would have been room for considerable manipulations particularly when there are only limited number of electors in a constituency
But for that provision it would have been possible before the concerned authorities to so
manipulate the electoral rolls as to advance the prospects of a particular candidate
This would be more so if either all or a section of the electors are persons nominated to local authorities
The legislative mandate like the one embodied in section 233 must be considered as mandatory not merely because of the language employed in that sub section but also in view of the purpose behind the provision in question
In our opinion cl
23a takes away the power of the electoral registration officer or the chief electoral officer to correct the entries in the electoral rolls or to include new names in the electoral rolls of a constituency after the last date for making the nominations for election in that constituency and before the completion of that election
Section 233 does not deal with any mode or procedure in the matter of registering the voters
It interdicts the concerned officers from interfering with the electoral rolls under the prescribed circumstances
It puts a stop to the power conferred on them
Therefore it is not a question of irregular exercise of power but a lack of power
It was next urged by Mr Goburdhan learned Counsel for the appellant that section 233 of the 1950 Act is subject to section 272 of the same Act and therefore in view of the direction issued by the electoral registration officer to include the names of the electors in question it was not open to the election petitioner to take any objection to the same
We see no substance in this contention
There is no conflict between sub section
2 of section 23 and sub section
2 of section 27
In fact as noticed earlier the provisions of section 23 have been incorporated into section 272 in view of section 272e
A fair reading of the various clauses in section 272 will make it clear that 843 the entries in an electoral roll of a constituency as they stood on the last date for making the nominations for an election in that constituency should be considered as final for the purpose of that election
It was next urged that in view of section 62 1  of the Act no valid
objection can be taken to the franchise exercised by the electors whose names were included in the electoral roll on April 27 1968
Section 62 1  says that no person who is not except as expressly provided by this Act every person who is
for the time being entered in the electoral roll of any constituency shall be
entitled to vote
in that constituency
 That provision no doubt stipulates that every person who is for the time being registered in the electoral roll of any constituency except as expressly provided by the Act shall be entitled to vote in that constituency
The question is which is the electoral roll referred to in that section  Is it the electoral roll that was in force on the last date for making nominations for an election or is it the electoral roll as it stood on the date of the polling  For answering that question we have to go   back to section 233 of the 1950 Act
In view of that provision the electoral roll referred to in section 62  1  of the Act must be understood to be the electoral roll that was in force on the last day for making the nominations for the election
It was next urged that even if we hold that in including fresh electors in the electoral roll on April 27 1968 the electoral registration officer contravened section 233 of the 1950 Act the same cannot be made a ground for invalidating the election as the contravention in question does not come within the purview of subs
1 ors
100 of the Act
This contention again does not appear to be sound
Clause diii of sub section
1 of section 100 of the Act provides that if the High Court is of the opinion that the result of the election in so far as it concerns the returned candidate has been materially affected by the improper reception refusal or rejection of any vote or the reception of any vote which is void it shall declare the election void
We have earlier come to
the conclusion that the electoral registration officer had no power to include new names in the electoral roll on April 27 1968
Therefore votes
of the electors whose names were included in the roll on that date must be held to be void votes
That conclusion satisfies one of the conditions prescribed in section 1001d
We have now to see whether the other conditions prescribed in that clause namely whether the High Court on the material before it could have been of the opinion that the result of the election in so far as it concerned the returned candidate has been materially affected  because of the reception of the votes which are void
The High Court elaborately considered that question
It has examined each one of the disputed votes and has come to the conclusion that if 844 those votes had been excluded the valid votes received by the contesting candidates in the first count would have been as follows Appellant 32 Respondent No 2 46 Respondent No 3 23
In the second count after the elimination of the third respondent and taking into consideration the second preferences give by the electors who gave their first preference to him the following would have been the position Appellant 43 votes and Respondent No 2 57 votes
No matter was placed before us to show that this conclusion was wrong
There was some controversy about two votes but we do not think it necessary to go into the same as any decision as regards their validity will not affect the final conclusion
Before leaving this case it is necessary to mention that at one stage of the arguments the learned Counsel for the appellant contended that the decision of this Court in BM Ramaswamy vs BM Krishnamurthy and Ors1 governs the facts of this case
But after some discussion he gave up that contention
The ratio of that decision has no relevance for our present purpose
In that case the High Court came to the conclusion that the corrections in the concerned electoral roll had been made before the last date prescribed for filing nominations to the election but it came to the conclusion that the electors newly added to the list were not qualified to be registered as electors This Court overruled that finding holding that every person whose name finds place in the electoral roll must be  held to be qualified to be a candidate whether he was qualified to be registered as an elector or not
In other words it upheld the finality of the electoral roll as it stood on the last date for filing nominations for the election
For the reasons mentioned above this appeal fails and the same is dismissed with costs


Summary:
Sub section 3 of section 23 provides that no direction for the inclusion of name in the electoral roll of a constituency shall be given after the last date for making nomination for an election in that constituency and before the completion of that election
The appellant s election to the Bihar Legislative Council was challenged on the ground that some of the votes cast in his favour were not valid because the names of the voters were included in the electoral roll after the last date for filing nomination
The High Court set aside the election and declared the second respondent elected since on counting the validly cast votes the second respondent secured more votes than the appellant
On the question whether it was within the competence of the electoral registration officer to amend the electoral rolls after the last date for making the nomination was over HELD The legislative mandate like the one embodied in section 23 sub section
3 must be considered as mandatory not merely because of the language employed in that sub section but also in view of the purpose behind the provision
The sub section does not deal with any mode or procedure in the matter off registering the voters
It interdicts the concerned officers from interfering with the electoral rolls under the prescribed circumstances
It puts a stop to the power conferred on them
Therefore it is not a question of irregular exercise of power but a lack of power
842 DF There is no conflict between sub section 2 of section 23 and subs
2 of section 27 because a fair reading of the various clauses in section 272 will make it clear that it is the electoral roll of a constituency as it stood on the last date for making the nominations for an election in that constituency that is to be considered final for the purpose of that election
842 H