Case: Kunwar Nripendra Bahadur Singh Vs. Jai Ram Verma And Others

This appeal under section 116A of the Representation of the People Act, 1951, is directed against the judgment of the Allahabad High Court in the, matter of an election to the U.P. Legislative Council held on April 28, 1974, from the Local Authorities Constituency, Faizabad. We are concerned here with Kshettra Samitis which are the local authorities (see Fourth Schedule of the Representation of the People Act, 1950, Uttar Pradesh). Besides the appellant, ten candidates (respondents 1 to 10) filed their nomination papers. Six of them (respondents 5 to 10) had withdrawn their candidature. Out of the five left there was no contest worth the name from respondents 2, 3 and 4. The principal contest, therefore, was between the appellant and respondent No. 1 (hereinafter to be described only as respondent). The last date for submission of nomination papers was April 2, 1974. At the, poll the appellant secured 927 votes and the respondent 909, the difference being only of 18 votes. The appellant was, therefore, declared elected on April 29,respondent filed an election petition (being No. 11 of 1974) before the Lucknow Bench of the Allahabad High Court. As many as 13 issues were raised before the High Court and we are principally concerned with only one question which is the subject matter of issue Nos. 1, 4 andThe issues read as(a) Whether the votes cast by the persons mentioned in clause (a) of para 4 of the election petition were void ?(b) Were those persons not electors within the meaning of section 2(1) (a) of the Representation of the People Act, 1951 on 28-4-1974 when the election was held(a) Whether the five persons named in para 8 of the election petition had ceased to be co-opted members of Kshettra Samitis after t he expiry of the term of Kshettra Samiti Bhiaon in the year 1973 ?(b) Can this question be enquired into by this Tribunal ?(c) If so were the said persons not electors on the date of election and as such not entitled to vote ?(d) Whether the votes of the said persons are void ?(e) Whether the reception of the void votes of the said person s materially affected the result of the election ?13. (a) Whether the electoral roll on the basis of which election was held is ultra vires as alleged in para 17 of the election petition ?(b) Whether this question can be taken notice of by the Tribunal in this election petition ?(c) Whether the election held on the basis of the said electoral roll is voidissues cover the case of 17 persons whose names were recorded as electors in the electoral rolls grounded on the requisite qualifications that 13 of them were Presidents of their respective Cooperative Societies and the remaining 4 were co-opted members of Kshettra Samitis. But since they had ceased to be the Presidents or co-opted members on the new office bearers being subsequently elected in their places long before the notification of the election, they were wrongly continued in their electoral rolls and as such were not entitled to vote, notwithstanding the presence of their names in the electoral rolls. Their participation in the election has materially affected the result. This is the case of theHigh Court accepted the contention and set aside the election observing asthese facts it is more than evident that the concerned officers failed in their mandatory duty and they did not correct the electoral roll upto date as required by section 27. This incorrect electoral roll could not therefore be deemed to be the electoral roll for the time being in force within the meaning of section 2(1)(e) read with section 62 of 1951 Act. The election held on the basis of this invalid and ultra vires electoral roll is also void".The High Court, however, observed that "it is not known in whose favour they exercised their votes so as to excludemay here observe that if the High Court is right on the first point a further quest ion will arise whether the election of the appellant has been materially affected by the reception of void votes in his favour. As stated earlier, the High Court has not addressed itself to this aspect.

Reasoning:
We are not required to write on a clean slate with regard to the controversy raised in this appeal. The High Court appears to have been impressed by the fact that a duty is cast under section 27 of the 1950 Act on the electoral registration officer to maintain the electoral roll corrected up-to-date and that since this had not been done the names of the voters who had admittedly ceased to be Presidents or co-opted members some time in 1973 ought not to have appeared in the electoral rolls and that as such they were disqualified from voting in the election.It is true that under section 27 the electoral registration officer has to maintain in his office an electoral roll corrected up-to-date. So far as any change in the membership of a local authority is concerned there is also a duty cast under section 27(2)(d) on the chief executive officer of every local authority to immediately inform the electoral registration officer about such a change. The electoral registration officer, on receipt of such information from the chief executive officer, shall strike off the old names and substitute the new names of members of the particular local authority. Even the new members, themselves, could apply for registration of their names by deletion of those of their predecessors in due time. This was notis not disputed that the persons whose names were recorded in the electoral roll and participated in the voting were not disqualified under section 16 of the 1950 Act. That being the position it would have been wrong on the part of the Presiding Officer not to allow the voters whose names were recorded in the elect oral roll of the constituency to participate in the voting, even though their names could have been earlier at the appropriate time legitimately excluded from the electoral roll. These voters are electors within the meaning of section 2 (1) (e) of the 1951 Act and were entitled to vote under section 62 of the 1951 Act.In a democracy and for. that matter in an election, perennial vigilance should be the watch-word for all. If, therefore, notwithstanding the provisions of the law, appropriate action was not taken at the appropriate time, the provisions of the election law which have got to be construed strictly, must work with indifference to consequences, immediate or mediate. On the part of the officers also it will vitalise and invigorate a healthy democratic practice if, charged with the electoral duties, demanding high probity, they neither exhibit rank remissness nor accelerated alacrity apt always to breed suspicion ofare, however, unable to accept the submission notwithstanding the omission of section 21 in section 27(2)(e) of the 1950 Act. The proviso to section 21(2) relates to revision of an electoral roll and sets at rest any possible controversy in case there happens to be no revision of electoral rolls for one reason or other. The proviso, therefore, has been advisedly inserted in section 21(2) with a specific purpose of forestalling a situation. The same caution is not necessary in the case of preparation of electoral rolls under section 27(2), the alterations where of are concomitant with statutory transformations of the local authorities under provisions of the local Acts. If any modicum of caution is yet necessary, even that is preserved by section 23(3) which is made applicable, in terms, under section 27(2)(e). The submission of counsel, thus, flies in the face of the scheme and object of the abovein a catena of cases this Court ha consistently taken the view that the finality of the electoral roll cannot be challenged in an election petition even if certain irregularities had taken place in the preparation of the electoral roll or if subsequent disqualification had taken place and the electoral roll had on that score not been corrected before the last hour of making nominations. After that dead line the electoral roll of a constituency cannot be interfered with and no one can go behind the entries except for the purpose of considering disqualification under section 16 of the 1950 Act.The election could be set aside only on the grounds mentioned in section 100 of the 1951 Act. In this case reliance was placed under section 100(1)(d)(iii) for invalidating the election on the ground of reception of void votes. We have already shown that the electoral roll containing the particular names of voters was valid and there is, therefore, no question of reception of any vote which was void. There is, thus, no substance in that ground for challenging theis true, the result is that with a small margin the appellant landed first as the victor in the election and even the balance might have tilted in favour of the respondent if the so-called invalid votes were to be excluded. Bu t this uncanny consequence cannot be helped on the law laid down by this Court and for very good reasons impregnated in the electoral provisions demanding constant awareness on the part of all and, above all, of theare, therefore, of opinion that the High Court is clearly wrong in holding that the electoral roll was illegal or ultra vires with reference to the particular entries of votes and that on that account the election was liable to be set aside. We, therefore, set aside the judgment and order of the High Court and restore the election of the appellant to the U.P. Legislative Council. The election petition stands dismissed with costs. In the view we have taken it is not necessary to consider the second question with regard to the point whether the result of the election of the appellant was materially affected oris not possible to hold that Ramji decision (supra) is of any aid to counsel in his submission in support of the impugned judgment. This Court in that case referred to the earliest case on the subject, namely, B. M. Ramaswamy v. B. M. Krishnamurthy and Others([1963] 3 S.C.R. 479.) that it "bad come to the conclusion that the finality of the electoral roll cannot be challenged in a proceeding in which the validity of the election is questioned". This Court has further clearly observed in Ramjis case (supra) as follows"There is a clear distinction between a challenge to the right of a voter to be registered in an electoral roll and the jurisdiction of an authority appointed under the Act to enter a name in the electoral roll".