B. M. Ramaswamy v. B. M. Krishnamurthy and Others

SuBBA RAO, J.-This appeal by special leave arises out of a. dispute in respect of the election to the Panchayat of Byappanahalli, from its first constituency, in the State of Mysore. The calendar of events for the said election was as follows: ·Notification of election ... 6-2-1960 Date by which candidates had to file nomination papers 16·3-1960 Date of the scrutiny of nomina- tion papers. Poll. p~o1ar~tion of res~lt. ~ : ! "'>I .• 18-3-1960 13-4-1960 ,._, l~-4-19(_)0 • I ,J 3 S.C.R. ' .!. ! ~ ' J ' t SUPREME COURT REPORTS 4Si : The appellant and five others filed their nor~ination ' papers within the prescribed date. The polhng took 'place on the scheduled date, namely April 13, 1960. , The candidates secured votes as ment10ned under: Appellant 169 votes . Respondent 2 158 votes Respondent 1 128~votes Respondent 3 115 votes Respondent 4 38 votes Respondent 5 46 votes I ' The appellant and respondent 2 were duly declared elected to the Panchayat. . Respondent 1 filed an election petition under s. 13 of the Mysore Village Panchayats and Local Boards Act, 1959 (Mysore Act No. 10 of 1959), hereinafter called the Act, in the Court of the Second Munsift', Bangalore, for a declaration that the appellant was not duly elected and for a fur­ ther declaration that the first respondent was duly elected. The case of the first respondent, as disc}, osed in his petition. was that on the date fixeq for filing of nominations the appellant's name was not in the authentieated list of voters published under r. 3, cl. (5) of the Mysore Panchayats and Tuluk Boards Election Rules, 1959, hereinafter called the Rules, and, therefore, he was not enti­ tled to file his nomination. It was his further case that the appellant was not ordinarily a resident of Byappanahalli and, therefore, he was disqualified from standing for the election from' that constituency. The learned Munsift' held on the second point . that the appellant was ordinarily a resident of the said village and -was, therefore, qualified to be included in the electoral roll of the Panohayat, 1962 B.M. Ra.izaswam'; v: . B .M. Krishnam•rl SubbaRaoJ. '1962. ·B~it.~ ·R·fJma;wami ' - V._ B.M. ~1i11m·amurthy s"~bbo Rao - but he came to the conclusion that his name was not included in the authenticated list of voters of the said Paiichayat. On that finding, he set aside the election of the appellant and declared the first respondent, who secured the next highest number of votes, to have been duly elected in his placa. On appeal, the lee.rued Judges of the High Court, after noticing the finding of the Munsiff to the effect that the appellant's name was not incl- _uded in the authenticated list of voters for the Panchayat, observed that they did not agree with the reasoning given by the learned Munsiff, but they agreed with his conclusion on the basis of a different reasoning. They held that though the name of the appellant was included before the prescribed date in the electoral roll of the legisl­ ative constituency under s. 23 of the Representa­ tion of the People Act, 1950, it was so included in direct violation of r. 26 of the Representation of the People Rules, 1956, and that, therefore, the said inclusion was void. Having so held, they agreed with the lflarned Munsiff that the appellant's election was liable to be set aside. Hence the appeal. It may be mentioned that there was no appearance on the side of the respondents. Before considering the point raised, it will be convenient to clear the ground. Sec~ion 9 of the Act reads: '•The electoral roll of the Mysore legislative Assembly for the time being in force for such part of the constituency of the Assembly as is included in any Panchayat constituency shall for the purpose of this Act, be deemed to b~ the list of voters for such Panchayat, constit­ uency. The Secretary of the Panchayat shall maintain in the prescribed manner a list of voters for each Panchayat constituency, \, ) { a s.d.tt. SUPREME COURT REPORTS 483 Explanation.-For the purpose of this section, eleotoral roll shall mean an electoral roll prevared under the provisions of the Represe­ ntation of the People Aot, , 950 (Central Act XLIII of 1950) for the time being in force." Seotion 10 says: '•Every person whose name is in the list of voters of any Panchayat oonstituency shall, unless disqu1tlified under this Act or under any other law for the time being in force, be qualified to be elected as a member of the Panchayat·: .............. : ......... ". Rule 3 of the l{ules prescribed the mode of maintenanoe and custody of list of voters. It says, among other things, that the Secretary of the P~ n· chayat shall maintain a list of voters for each panohayat constituency, that he shall authenticate such list by affixing on it the seal of the Pancha­ yat, and that he shall, from time to time, carry out in the authenticated copy of each such list, any corrections that may be made in the Electoral Roll of the Mysore Legislative Assembly and initial below each correction so made. It will be olear from the said provisions that the relevant part of the electoral roll of the Mysore Legislative Assembly is deemed to be the list of voters for the panohayat constituency, and that the Secretary of the panchayat has to maintain a duly authenticat­ ed separate list of voters of the said constituency. The learned Munsiff held tha,t, as the said authenti­ oated list of panchayat voters was not produced before him, it was not established that the name of the appellant was included therein on the date ·of nomination. The learned Judges of the High Court did not accept the said finding on the ground that they did not agree with the reasoning given by the learned • Munsiff; but unfortunately they have not giveD their reasons for differing from him. l9GB -B.M. Rama1i.vain i v. B.M. Krishnamurthy Subba Rao J. 1962 B.M. Ramaswomi v. B~M,' Kiishliamu1thy SulibiiR•• J. 484 SUPREME COURT REPORTS ni963j But a persual of the election petition shows that the first respondent accepted in his petition that_.the name of the appellant was included in the said au then Licated list on the date when he · filed his nomination paper. -Presumably because of that fact the learned Judges of the High Court did not think fit to sustain the finding of the learned Munsiff. In view of the said admission in the petition, it cannot be expected of the appellant to summon the authenticated list to prove what has already been admitted. This leads us to the consideration of the only 11ubstantial question that arises in the appeal. Lear- ned counsel for the appellant contends that the ~- High Court went wrong in considering the question of the legality of the inclusion of the appellant's name in the electoral roll of tile Mydore Legislative Assembly, as, under a. 30 of the Representations of the People Act, the· jurisdiction of civil courts to question the legality of an action taken by, or im- der the authority of, the Electoral Registration O.fficer,was barred. It is common case that the name of appellant was included in the electoral roll of the Mysore leg­ islative Assembly before the date prescribed for filing of nomination papers. But it is said that the Electoral .Registration Officer did not follow tile procedure prescribed in that behalf. The provisions . relevant to the question raised may be read conve­ niently at this stage. Section 23 of the Representa­ tion of the People Act, 1950, reads: ( l) 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. >- a s.c.R. SUPREME COURT REPORTS 485 Rule''26 of the Representation of the People (prepa­ ration 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 I) 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 sub-section (i) shall be paid by means of non-judicial_ stamps. (3) The rhief electoral officer or, as the case may _be, the electoral registration officer shall immediately on receipt of such appli­ cation, direct that one copy thereof be posted in some conspicuous place in his office together with a notice inviting objec­ tions 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 sha.11, as soon as may be after the expiry of the period specified in sub-rule (3), con­ sider 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. 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 eleotoral officer, from any order of the electoral registration officer under f!ection\ 22 or section 23, anq 1962 1J.M. Ramasiiami v. B.M. K;;,hnamurth_ Subha Rao ·1. J96f /J.M. Ramaswam~ •• B.M. K,ishnamur.thy Subba Rao .] , (b) to the Election Commission, from any order of the chief electoral officer under section 23 . Rule 27 of the Representation of the People (Pre­ paration of Electoral Rolls )Rules,1956, prescribes the procedure for preferring appeals. It is not disputed that an . application was filed before the registration officer for the inclusion of the appellant's name in the electoral roll; it is also common case that the electoral registration offi-c cer did not follow the prooednre precribed in r. 26 relating to the posting of the a.pplication in a conspi· cuous 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 1livil court shall have jurisdic· tion to question the legality of any action taken by, or under the authority of, the electoral regis· tration officer. The terms of the section are olear and the action of the electoral registration officer in including the name of the appellant in the elec­ toral 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 reserting to any other appropriate remedy. But it was conten· ded 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 appe­ llant's name in the electoral roll and take suoh action as he deems fit. The non-compliance with the prooedure prescribed does not affect his juris­ qiotion~ though it ma;y render hjs action illegal. I ... t ~ .. ( ' ,J ' .; . 3 s.qR'd .. :sUPR~lVIE.OOU.R.TREPORTS '4&7 Such non~coµipliance · cannot make the officer's aot non est, though his order may be liable to be set aside in appeal or by resorting to any other appropriate remedy._ .f... ' The Act proceeds on the basis that the voters' Hst is final for the purpose of election. Undet s. 10 of the Act, ''every person whose name is injthe list of voters of any Panchayat constituencJ- shall, unless disqualified under this Act or under any other any other law for the time being in force~ ... :'"'f"' he qualified to be elected ~s· a mamber of the Panchaya_t','. The disqualifications .are enumerated in s. 11. If he was not disqualified-in ~h.e. present cias~, t~«? ~i.n~i~~, i.~ that there was no such disqua­ liffoation-the appellant was certainly qualified to be elected as a member- of·the Panchayat. The Aot confers a special jurisdiction on the Munsif to set aside an election, anq 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 s. 10 of the Act, it cannot be said that the're 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 Pancbayat. There is, therefore, no provi­ sion·. in the Act which enables the High Court to set aside the election on the grohnd that though B.M. Ramaswamy '· B.M. K11shnamu1th; S"bba liao .. J • J9&S ' BoM. R~1_1lasWam, v; B:M. Kris~~~murih, 488 ' . . - , ..-:~ - . . . . ... SUPREME OOURT REPORTS (1003] · the name of a: candidate is iir the litlt; it had been' ill'chided therein iliegally. in this view we <lo not propose to express our opinion on the question whether; if the election of the appeliant was void; the Mimsiff could have declared the first respondent to have been duly elected in hili place; For the aforesaid reassons; we cannot agree .With the {)oti<ilusion arrived at either by the ieal'• µed Muasiff or by the learned J tidges of the High Court. In the reslilt; the appeal is allowed and the election petition is dismissed with costs throiighout. Appeal ailowed. '