Case: B. M. Ramaswamy Vs. B. M. Krishnamurthy And Others

included in the electoral roll of the Mysore legislative Assembly before the date prescribed for filing of nomination papers. But it is said that the Electoral Registration Officer did not follow the procedure prescribed in that behalf. The provisions relevant to the question raised may be read conveniently at this stage. Section 23 of the Representa- tion of the People Act, 1950, reads: (1) Any parson whose name is not included in the electoral roll of a constituency may apply in the manner hereinafter provided for the inclusion of his name in that roll. Rule 26 of the Representation of the People (preparation of Electoral Rolls) Rules, 1956, says: (i) Every application under sub-section (i) of section 23 shall be made in duplicate in Form 4 (Part 1) and shall be accompanied- (a) where it is to the chief electoral officer, by a fee of ten rupees, and (b) where it is to the electoral registration officer, by a fee of one rupee. (2) The fee specified in subsection (i) shall be paid by means of non-judicial stamps. (3) The chief electoral officer or, as the case may be, the electoral registration officer shall immediately on receipt of such application, direct that one copy thereof be posted in some conspicuous place in his office together with a notice inviting objections to such application within a period of seven days from the date of such posting.(4) The chief electoral officer or, as the case may be, the electoral registration officer shall, as soon as may be after the expiry of the period specified in sub-rule (3), consider the objections, if any, received by him and shall, if satisfied that the appellant is entitled to be registered in the electoral roll, direct his name to be included therein.7. Section 24 of the Representation of the People Act, 1950, provides: An appeal shall lie within such time and in such manner as may be prescribed- (a) to the chief electoral officer, from any order of the electoral registration officer under section 22 or section 23, and (b) to the Election Commission, from any order of the chief electoral officer under section 23.8. Rule 27 of the Representation of the People (preparation of Electoral Rolls )Rules, 1956, prescribes the procedure for preferring appeals.9. It is not disputed that an application was filed before the registration officer for the inclusion of the appellants name in the electoral roll; it is also common case that the electoral registration officer did not follow the procedure prescribed in r.26 relating to the posting of the application in a conspicuous place and inviting objections to such application. It cannot, therefore, be denied that the inclusion of the name of the appellant in the electoral was clearly illegal. Under s. 30 of the Representation of the People Act, 1950, no civil court shall have jurisdiction to question the legality of any action taken by, or under the authority of, the electoral registration officer. The terms of the section are clear and the, action of the electoral registration officer in including the name of the appellant in the electoral roll, though illegal, cannot be questioned in a civil, court: but it could be rectified only in the manner prescribed by law, i. e., by preferring an appeal under r. 24 of the Rules, or by resetting to any other appropriate remedy. But it was contended before the High Court that the action of the electoral registration officer was a nullity inasmuch as he made the order without giving notice as required by the Rules. We find it difficult to say that the action of the electoral registration officer is a nullity. He has admittedly jurisdiction to entertain the application for inclusion of the appellants name in the electoral roll and take such action as he deems fit. The non-compliance with the procedure prescribed does not affect his jurisdiction, though it may render his action illegal.Such non-compliance cannot make the Officers act non est, though his order may be liable to be set aside in appeal or by resorting to any other appropriate remedy.10. The Act proceeds on the basis that the voters list is final for the purpose of election. Under s. 10 of the Act, "every person whose name is in the list of voters of any Panchayat constituency shall, unless disqualified under this Act or under any other any other law for the time being in force, be qualified to be elected as a member of the Panchayat". The disqualifications are enumerated in s. 11. If he was not disqualified-in the present case, the finding is that there was no such disqualification-the appellant was certainly qualified to be elected as a member of the Panchayat. The Act confers a special jurisdiction on the Munsif to set aside an election, and he can do so only for the reasons mentioned in s. 13 (3) of the Act. The relevant provision is in s. 13-(3) (A) (d) (i) which relates to the improper acceptance of any nomination. In view of a. 10 of the Act, it cannot be said that there is any improper acceptance of the nomination of the appellant, for, his name being in the list of voters, be is qualified to be elected as a member of the Panchayat. There is, therefore, no provision in the Act which enables the High Court to set aside the election on the ground that though the name of a candidate is in the list, it had been included therein illegally.11. In this view we do not propose to express our opinion on the question whether, if the election of the appellant was void, the Munsiff could have declared. the first respondent to have been duly elected in his place.12. For the aforesaid reassons, we cannot agree with the conclusion arrived at either by the learned Muasiff or by the learned Judges of the High Court. In the result, the appeal is allowed and the election petition is dismissed with costs throughout.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. It is not disputed that an application was filed before the registration officer for the inclusion of the appellants name in the electoral roll; it is also common case that the electoral registration officer did not follow the procedure prescribed in r.26 relating to the posting of the application in a conspicuous place and inviting objections to such application. It cannot, therefore, be denied that the inclusion of the name of the appellant in the electoral was clearly illegal. Under s. 30 of the Representation of the People Act, 1950, no civil court shall have jurisdiction to question the legality of any action taken by, or under the authority of, the electoral registration officer. The terms of the section are clear and the, action of the electoral registration officer in including the name of the appellant in the electoral roll, though illegal, cannot be questioned in a civil, court: but it could be rectified only in the manner prescribed by law, i. e., by preferring an appeal under r. 24 of the Rules, or by resetting to any other appropriate remedy. But it was contended before the High Court that the action of the electoral registration officer was a nullity inasmuch as he made the order without giving notice as required by the Rules. We find it difficult to say that the action of the electoral registration officer is a nullity. He has admittedly jurisdiction to entertain the application for inclusion of the appellants name in the electoral roll and take such action as he deems fit. Thewith the procedure prescribed does not affect his jurisdiction, though it may render his action illegal.Suchcannot make the Officers act non est, though his order may be liable to be set aside in appeal or by resorting to any other appropriate remedy.10. The Act proceeds on the basis that the voters list is final for the purpose of election. Under s. 10 of the Act, "every person whose name is in the list of voters of any Panchayat constituency shall, unless disqualified under this Act or under any other any other law for the time being in force, be qualified to be elected as a member of the Panchayat". The disqualifications are enumerated in s. 11. If he was notthe present case, the finding is that there was no suchappellant was certainly qualified to be elected as a member of the Panchayat. The Act confers a special jurisdiction on the Munsif to set aside an election, and he can do so only for the reasons mentioned in s. 13 (3) of the Act. The relevant provision is in s.(A) (d) (i) which relates to the improper acceptance of any nomination. In view of a. 10 of the Act, it cannot be said that there is any improper acceptance of the nomination of the appellant, for, his name being in the list of voters, be is qualified to be elected as a member of the Panchayat. There is, therefore, no provision in the Act which enables the High Court to set aside the election on the ground that though the name of a candidate is in the list, it had been included therein illegally.11. In this view we do not propose to express our opinion on the question whether, if the election of the appellant was void, the Munsiff could have declared. the first respondent to have been duly elected in his place.12. For the aforesaid reassons, we cannot agree with the conclusion arrived at either by the learned Muasiff or by the learned Judges of the High Court. In the result, the appeal is allowed and the election petition is dismissed with costs throughout.