ORDER
H. Rangavittalachar, J.
1. The Election Commission of India by a notification dated 7.3.2002 notified elections to the Rajya Sabha from the Council of States including the State of Karnataka where four seats were required to be filled up. As per the calender of events the last date for filing the nomination was 14.3.2002, scrutiny of the nomination 15.3.2002, last date for withdrawal 18.3.2002 and the polls to be held if necessary, on 27.3.2002.
2. The writ petitioner herein as a candidate from the Bharatiya Janatha Party and the 3rd respondent as an Independent Candidate, filed their nominations. When the nomination papers were taken up for scrutiny, writ petitioner objected for acceptance of the nomination of 3rd respondent on the ground that he is not an 'ordinary resident' of the constituency. The Returning Officer overruled the objection. Subsequently elections were held on 27.3.2002 and the 3rd respondent was declared elected. The petitioner has challenged the election of the 3rd respondent by filing an Election Petition EP 2/2002 before this Court.
3. Meanwhile, petitioner filed an application dated 17.3.2002 -Annexure M before the Electoral Registration Officer (hereinafter referred to as the ERO), Shanthinagar Assembly Constituency complaining 'The respondent 3 is a non-resident Indian and he will be out of India for more than six months in a year. He got himself registered as an elector in the Shanthinagar Assembly Constituency by making a false declaration. Hence, he should be prosecuted under Section 31 of the Representation of Peoples Act, 1950 (hereinafter referred to as RP Act, 1950) for registering as an elector by making false declaration. This was followed up by a further complaint on 6.5.2002 vide Annexure N wherein the petitioner quoting certain circulars issued by the Election Commission of India, requested the ERO for taking action under Section 22 of the RP Act, 1950.
4. The ERO held an enquiry and by an order dated 1.7.2002, rejected the application on the ground that the passport produced by the R3 and the enquiry conducted showed that the 3rd respondent is an ordinary resident within the Shanthinagar Assembly Constituency.
5. Aggrieved by the said order, petitioner preferred an appeal under Section 24 of the RP Act, 1950 before the Chief Electoral Officer. The appellate Authority by an order dated 21.10.2002 rejected the appeal with an endorsement 'that the appeal cannot be considered until the Election Petition filed by the petitioner before this Court is decided'. The said order came to be challenged by the petitioner by filing a Writ Petition in WP. 46230/02 and this Court by an order dated 12.3.2003, set aside the order of the appellate authority and remanded the matter with a direction to decide the appeal on merits.
6. After remand, the appellate authority by an order dated 23.6.2003, dismissed the appeal holding that 'the passport issued to the 3rd respondent shows that the 3rd respondent was an ordinary resident of Bangalore within the meaning of Section 20 of the RP Act, 1950. Since the 3rd respondent was already registered as a voter and his name is sought to be deleted, there is a presumption in law that the authorities before ordering the name of the 3rd respondent to be registered in the electoral roll had followed the procedure according to law. In so far as the objection of the petitioner that the 3rd respondent had declared before the Foreign Exchange Regulation Act (hereinafter referred to as FERA) and Foreign Exchange Management Act (hereinafter referred to as FEMA) and income tax authorities that he is a non-resident Indian, hence could not be treated as an ordinary resident has been repelled on the ground that the provisions of the said Act cannot be considered while deciding a question under the RP Act, 1950.
7. These orders of the ERO and the Appellate Authority are now challenged with a prayer to declare the inclusion of the name of the 3rd respondent in the voters list of Shanthinagar Assembly Constituency, Bangalore on 30.11.1999 is bad in law and further, to declare the election of the 3rd respondent to the Upper House ie., Rajya Sabha from the State of Karnataka held on 27.3.2002 as invalid and illegal.
8. Petitioner's contention in the petition, briefly stated is as follows:
Though the 3rd respondent had declared under the Companies Act which was published in a news paper that he was a non-resident Indian staying at Dubai which declaration was reiterated in the income tax returns filed for the year 2001-2002 and the Indian address given was at 84, Circular Road, Calcutta, the ERO overlooking the same erred in not deleting his name from the electoral list; that the passport issued from the Vice Consul General of India, Sanfransisco, USA had no evidentiary value; that the very fact that his name for the first time was registered in the electoral list during the year 1999 shows that he was not residing in Bangalore earlier.
9. It is stated by respondent 3 in his objection that he is a citizen of India and that for generations, the family of the respondent hailed from Bangalore. In fact, in memory of his late father, a road has been named in Bangalore as Vittal Mallya Road. 3rd Respondent has been the Chairman of the UB Group Companies which is situated at Vittal Mallya Road. Apart from that, he has been appointed as member of the Governing Board of Bangalore Turf club by the Government of Karnataka and the correspondence are received by him at his residence at Bangalore. The 3rd respondent has stated that he made an application on 29.11.1999 before the ERO for registering him in the electoral roll of the Shanthinagar Assembly Constituency. It was only after an enquiry and following the procedure prescribed by the Representation of Peoples Act and Rules, by an order dated 16.12.1999, the ERO directed his name to be included in the electoral roll. Subsequent to the inclusion of his name, he contested the Rajya Sabha elections held during March 2000 though unsuccessfully.
10. The petitioner though was fully aware of all these facts, and having not objected at any point of time earlier than, when his application for scrutiny of nomination was taken up, is guilty of delay and laches and therefore, cannot be permitted to prosecute the Writ Petition.
11. On the basis of the said pleadings, Sri G.S. Visveshwara, learned Counsel appearing for the petitioner contended:-
Firstly that there is a conscious violation of Rule 26(3) of the Registration of Electoral Rules, 1960 in as much as that without following the procedure prescribed for publishing the application of the 3rd respondent filed on 30.11.1999 for inclusion of his name in the electoral roll and holding an enquiry and thereafter passing orders, the ERO on the very next date of the 3rd respondent submitting the application i.e. on 30.11.1999 itself has ordered for the inclusion of his name. The order referred to by the appellate authority dated 15.12.1999 as having been passed by the ERO, was never passed on the said date but, has been concocted and produced for the first time during arguments before the appellate authority. That, such a course adopted by the ERO was in fragrant violation of the directions issued through Circulars by the Election Commission of India.
12. That in the income tax returns filed by the 3rd respondent and in the proceedings before the Enforcement Directorate, he has clearly admitted that he is not an 'ordinary resident of India'. Hence, the authorities below should have held him not an 'ordinary resident' of India and accordingly should have ordered his name to be deleted from the electoral roll of Shanthinagar Constituency.
13. That the finding of the appellate authority and the ERO that the 3rd respondent is an ordinary resident of India is a factual mistake and the orders therefore are passed without application of mind to the facts and is liable to be set aside. Learned Counsel relied on the following decisions of the Supreme Court in support of the contention. The relevant ones will be referred at the appropriate place.
1. S.N. Mukherjee v. Union of India, : 1990CriLJ2148a
2. Mazharul Islam Hashmi v. State of Uttar Pradesh, : AIR1979SC1237
3. Election Commission of India v. Manmohan Singh, : AIR2000SC231
4. Union of India v. Dudhnath Prasad, : [2000]1SCR1
5. Ph. Pujar v. Dr. Kanthi Rajashekar Kidiyappa, : AIR2001SC3198
6. J. Robert v. Ram Jetmalani, : ILR1990KAR1907
7. K. Venkatachalam v. A. Swamickan and Anr., : [1999]2SCR857
14. In reply to the said contention, Sri Udaya Holla submitted that the contention of the petitioner 'that the order dated 15.12.1999 passed by the ERO was never passed on the said date and is a created one', is not supported by her pleadings, in as much as no such complaint was made by the petitioner either before the ERO or before the appellate authority or even before this Court and she cannot be permitted to raise such a plea for the first time during arguments.
15. In regard to the alleged admissions made by the 3rd respondent in his Income Tax returns and declarations under the FERA and FEMA Act, learned Counsel submitted that the 3rd. respondent has made only a declaration that he is a 'non-resident Indian' only for taking the benefit under the said Acts and such a declaration cannot be used to decide a question whether the petitioner is not an 'ordinary resident' within the meaning of RP Act of 1950. The provisions of the Income Tax, FERA and FEMA Act cannot be used or relied for interpreting the provisions of the RP Act, 1950. The RP Act, 1950 is complete code by itself.
16. It was further submitted that the findings of the ERO and the appellate authority namely, the 3rd respondent was an ordinary resident within Shanthinagar Constituency, was reached on the basis of relevant evidence namely, the entries in the passport and other documents and after making the permissible enquiry in law. Being a finding of fact, reached on relevant evidence the same cannot be interfered by this Court in exercise of powers under Article 226 of the Constitution.
17. It was lastly submitted that the petitioner being guilty of conduct namely, though was aware of the inclusion of the name of the 3rd respondent in the Shanthinagar Constituency, when the 3rd respondent contested in Rajya Sabha Elections held during 2000 and having kept quite without raising any objection for two long years, cannot be permitted to raise such an objection only because she lost the elections. Petitioner therefore, is guilty of delay and laches.
18. Learned Counsel for the respondent relied on the following decisions in support of his contention.
1. Kannan v. Returning Officer, : ILR1989KAR1081
2. Shivanna v. State, ILR 1998 KAR 2121
3. Commissioner of IT Tax v. Venkateshwara Hatcheries, 1993 SCC 632
4. Jagathram Ahuja v. Commnr. of Gift Tax, : [2000]246ITR609(SC)
5. PVCL v. Electoral Registration Officer, : [1997]225ITR561(SC)
6. Election Commission of India v. Dr. Manmohan Singh, : AIR2000SC231
7. Union of India v. Dudhnath Prasad
8. Stransky v. Stransky, 1954 (2) All.ER. 536
9. Lewis v. Lewis, 1956 (1) AII.E.R. 375
10. Gout and Anr. V. Cimitian, AIR 1921 PC 182
11. Regina v. Barnet London Borough Council, 1983 (2) AC 309
19. Apart from the above, both the learned Counsel made elaborate submission on the meaning of the word 'ordinary resident' occurring under Section 20 of the RP Act, 1950.
20. Before referring to the facts and the contentions raised, let me refer briefly to the relevant provisions of the RP Act, 1950 relating to the registration of a person in the electoral roll and the circumstances under which the same may be deleted as the entire controversy in the Writ Petition pertains to the said topic.
21. The RP Act 1950 provides for the delimitation of constituencies for purpose of election to the House of People and Legislature of States, the preparation of electoral rolls, etc. Part III of the Act relates to the preparation of electoral roll for assembly constituencies. Section 15, provides for the preparation of electoral roll for every constituency under the superintendence, direction and control of the election commission. Section 16 states the disqualification for registration in a electoral roll it being, that a non-citizen of India or a person of unsound mind or a person who suffers a disqualification even after registration is not entitled to be registered. Under Section 17, no person can be simultaneously enrolled in more than one constituency. Under Section 18, a person is entitled to be registered in a constituency only once. Under Section 19, every person who is not less than 18 years and is an ordinary resident in a constituency is entitled to be registered in that constituency. Who is an 'ordinary resident' has been stated in Section 20 of the Act. Since much of the arguments have been addressed on this question, the entire section with all its sub-clauses are extracted for ready reference.
22. Section 20 : Meaning of 'ordinarily resident':
1. A person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns, or is in possession of, a dwelling house therein.
(1-A) A person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein.
(1-B) A member of Parliament or of the Legislature of a Stateshall not during the term of his office cease to be ordinarilyresident in the constituency in the electoral roll of which he isregistered as an elector at the time of his election as suchmember, by reason of his absence from that constituency inconnection with his duties as such member.
2. A person who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons sufferings from mental illness or mental defectiveness, or who is detained in prison or other legal custody at any place, shall not by reason thereof be deemed to be ordinarily resident therein.
3. Any person having a service qualification shall be deemed to be ordinarily resident on any date in the constituency in which, but for his having such service qualification, he would have been ordinarily resident on that date.
4. Any person holding any office in India declared by the president in consultation with the Election Commission to be an office to which the provision to this sub-section apply shall be deemed to be ordinarily resident on any date in the constituency in which, but for the holding of any such office, he would have been ordinarily resident on that date.
5. The statement of any such person as is referred to in Sub-section (3) of Sub-section (4) made in the prescribed form and verified in the prescribed manner, that but, for his having the service qualification or but for his holding any such office as is referred to in Sub-section (4) he would have been ordinarily resident in a specified placed on any date, shall, in the absence of evidence to the contrary, be accepted as correct.
6. The wife of any such person as is referred to in Sub-section (3) or Sub-section (4) shall if she be ordinarily residing with such person be deemed to be ordinarily resident or in the constituency specified by such person under Sub-section (5).
7. If in any case a question arises as to where a person is ordinarily resident at any relevant time, the question shall be determined with reference to all the facts of the case and to such rules as may be made in this behalf by the Central Government in consultation with the Election Commission.
8. In Sub-sections (3) and (5) 'service qualification' means -
a. Being a member of the armed forces of the Union ,or
b. Being member of a force to which the provisions of the Army Act, 1950 (46 of 1950), have been made applicable whether with or without modifications; or
c. being a member of an armed police force of a State, who is serving outside the state; or
d. Being a person who is employed under the Government of India in a post outside India.
23. The preparation of electoral roll will be taken generally for all the constituencies and revised periodically under Section 21. If any person finds his name is not included in the electoral roll of the constituency prepared under Section 21, he may apply at any time for inclusion of his name under Section 23 of the Act. Section 23 reads as under:
Section 23: Inclusion of names in electoral rolls:
1. Any person whose name is not included in the electoral roll of a constituency may apply to the electoral registration officer for the inclusion of his name in that roll.
2. The electoral registration officer shall, if satisfied that the applicant is entitled to be registered in the electoral roll, direct his name to be included therein;
Provided that if the applicant is registered in the electoral roll of any other constituency, the electoral registration officer shall inform the electoral registration officer of that other constituency and that officer shall, on receipt of the information, strike off the applicant's name for that roll.
3. No amendment, transposition or deletion of any entry shall be made under Section 22 and no direction for the inclusion of name in the electoral roll of a constituency shall be given under this section, after the last date for making nominations for an election in that constituency or in the parliamentary constituency within which that constituency is comprised and before the completion of that election.
24. The name of a person once registered in the electoral roll under Section 21 and 23 may be deleted by the ERO under circumstances stated in Section 22. Section 22 reads as under:
Section 22: Correction of entries in electoral rolls:
If the electoral registration officer for a constituency, on application made to him or on his own motion, is satisfied after such inquiry as he thinks fit that any entry in the electoral roll of the constituency -
a. Is erroneous or defective in any particular
b. Should be transposed to another place in the roll on the ground that the person concerned has changed his place of ordinary residence within the constituency, or
c. Should be deleted on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll,
The electoral registration officer shall, subject to such general or special directions, if any, as may be given by the election Commission in this behalf, amend, transpose or delete the entry; Provided that before taking any action on any ground under Clause (a) or Clause (b) or any action under Clause (c) on the ground that the person concerned has ceased to be ordinarily resident in the constituency or that he is otherwise not entitled to be registered in the electoral roll of that constituency, the electoral registration officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him.
25. The meaning of the expression 'ordinary resident' occurring under Section 20 of the RP Act, 1950 came up for consideration before the Hon'ble Supreme Court in the case of UNION OF INDIA v. DUDH NATH PRASAD (supra) referred to by both the learned Counsel. The Court after noting various sub-clauses of Section 20 and referring to the dictionary meaning of the word 'reside' from Oxford & Blacks's Law Dictionary held that 'Section 20 which is a part of the law enacted for purposes of election to Parliament or State Legislature contemplates many categories of persons including those who are in service. By reading the dictionary meaning of the word 'reside' and the meaning of the word 'ordinary', it becomes clear that a person before he can be said to be ordinarily residing at a particular place, has to have an intention to stay at that place for a considerably long time. It would not include a flying visit or a short or casual presence at that place. It was further held that the expression ordinary resident occurring under Section 20(7) of the Act is used in the context of election matters including 'right to contest the election as also the right to vote in a constituency'.
(emphasis supplied by me)
26. In ELECTION COMMISSION OF INDIA v. DR. MANMOHAN SINGH (supra), the finding of the Assam High Court regarding the meaning of ordinary resident viz., that the 'ordinary resident' in a constituency as mentioned in RP Act, 1950 shall mean a habitual resident of that place or a resident as a matter of fact in regular, normal or usual course. It means an usual and normal resident of that place. The residence must be permanent in character and not temporary or casual. It must be as above for a consideration time. He must have the intention to dwell permanently. He must have a settled abode at that place for a considerable length of time for which a reasonable man will accept him as a resident of that State was accepted by the Supreme Court as correct proposition.(emphasis supplied by me)
27. In the Book 'Words & Phrases' permanent Ed. V: 37 Page 387 under the heading 'temporary absence' residence has been defined as: 'A resident for voting purposes is not lost by temporary removal with intention to return'. A person does not loose residence by temporary removal with intention to return or even with a conditional intention of acquiring a new residence, but when he abandons his home and takes up his residence in another country or election district, he loses his privilege or voting in the district from which he moved.
28. An Akbarali v. Brent London Borough Council, (1983) (2) AC 309 and connected appeal, meaning of the expression 'ordinary resident' came up for consideration in the context of education Acts viz.
Whether an immigrant student entering United Kingdom and studying there for purposes of seeking an 'educational qualification' was an 'ordinary resident' in United Kingdom entitled to obtain degrees or certificates, etc.
The expression, 'ordinary resident' in all its shades and dimensions has been expounded in the said decision quoting Lord Denning M.R. who had said -
'that person must be habitually and normally resident here apart from temporary or occasional absence of long or short duration'. Habitually means a residence adopted voluntarily for a settled purposes. With approval, it has been stated that, 'ordinarily residence' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purpose as part of the regular order of his life for the time being whether of short or long duration'.
There is of course one important exception, if a mans presence in a particular place or country is unlawful in that - the breach of immigration law, he cannot rely on his unlawful residence as constituting ordinary residence. There are two, and no more than two respects in which the mind of the propositus is important in determining the ordinary residence. The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment or Robinson Crusoe's existence on a desert island with no opportunity of escape may be so overwhelming a factor as to negative the will to be where one is.
There must be a degree of settled purpose, the purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose that is to say, that the propositus intends to stay where he is indefinitely. In deed his purpose may be merely a love of the place spring to mind as common reason for a choice of regular above and there maybe well many others. All that is necessary is that the purpose of living where one does as to a sufficient degree of continuity to be properly described as settled.
29. That, what follows from the decisions referred to above and a reading of the provisions of the Act is, it is the real intention of the person dwelling is the deciding factor. If the enquiry reveals that his residence is not used as a flying visit or for a temporary period without any purpose or the voluntary element of choosing the place is absent or, he has already been registered in another constituency, these may be the factors which may negative his will of staying at the place as an 'ordinary resident'. These are only illustrative, by no means they can be held to be exhaustive. Factors which may be used in favour of the applicant is the intention as declared by his own external acts. Among them, in my view which has a considerable bearing is the very declaration made before the ERO at an undisputed point of time while filing an application for registration as a voter. The Registration of Electoral Rolls, 1980, in particular Rule 26, provides for filing an application by a person under Section 23 for inclusion of his name in the electoral list and the procedure to be followed. According to the said rule, an application has to be filed in the prescribed Form they being Form 6, Form 8, Form 8A and Form 8B. In Form 6, the applicant has to state his place of ordinary residence and give his address. A note is appended to the said Form which warns that if a false declaration is made knowingly, he is liable to be punished under Section 31 of the RP Act, 1950. Having regard to the serious consequences of making a false declaration and the person being notified of such consequences in the very application itself, it can be stated that the declaration will have an element of solemnity or seriousness. Therefore, the statements made in the declaration regarding the ordinary place of residence in the absence of any negating factors maybe taken as a strong factor indicating the intention of the person of the choice of choosing the place of 'ordinary residence'.
30. Apart from that, the other factors being fathered about the activities undertaken or to be undertaken at a particular place which may point out the intention to stay permanently. These are factors which has to be considered by the fact finding authorities.
31. Reverting to the facts of this case, on 29.11.1999, the 3rd respondent made an application before the ERO for registering him in the electoral roll of the Shanthinagar Constituency, and was registered during the year 1999 and had also contested the Rajya Sabha elections held during 2000. Nobody had taken any objection including the petitioner herein though petitioner can be imputed with the knowledge in as much as admittedly the petitioner has been in politics and also a member of the parliament, to be aware of the conducting of the elections during March 2000. From the year 1999 till the year 2002, his name continued to find a place in the electoral roll without being objected to by any other persons.
32. However, this question regarding his status assumed significance when he had filed his nomination papers and became a rival to the petitioner. On the complaint made by the petitioner before the ERO, the ERO conducted an enquiry and has noted that during 1999 when the application was filed by the 3rd respondent, the authorities were satisfied on enquiry that the 3rd respondent was an ordinary residence of Shanthinagar Constituency on the basis of a passport produced by the 3rd respondent and also on the basis of local enquiry. The Appellate authority has also endorsed the said reasoning. The finding of the appellate Authority relying on the passport and on the statement made by a post man in a criminal proceedings to come to the conclusion that 3rd respondent is an ordinary resident, is a finding based on facts but then, were the authorities justified in relying on the entries in the passport to decide the question. Let me refer to the provisions of the passport Act and the evidentiary value of the entries:33. Every citizen of India intending to obtain a passport has to make an application under Section 5 of the Passport Act, 1967 in the prescribed form and the authorities after holding such enquiry as it considers necessary, may issue a passport. The prescribed form as per Rule 5 of Passport Rules, 1980 is as per Schedule III to Part I. As per the schedule , the applicant has to state in his application his permanent address. In proof of address, applicant is required to produce documentary evidence, ration card, water tax etc. The enquiry referred to in Section 5(2) of the Passport Act will also pertain to the ascertainment of correct address stated in the application and, after the enquiry, a passport is issued. A presumption may be drawn that the permanent address of the applicant is what is mentioned in the passport. Therefore, reliance on the passport cannot be said to be irrelevant for deciding the question. However, a contention was taken that the passport was issued by the Vice Consul General of India, Sanfransisco, USA, hence, it lacks all evidentiary value as no enquiry could have been conducted regarding the permanent address famished by the applicant. It is difficult to appreciate the contention. The Passport Act does not dispense with the enquiry merely because the application was filed before the Counsel General at Sanfransisco. Besides, it is also necessary to state that when a person complains to the ERO for deleting the name already found in the electoral list on any ground mentioned under Section 22 of the Act, the burden to so prove is on the complaint.
34. In the complaint made by petitioner before the ERO, except stating that the respondent was an non-resident Indian and had fraudulently got included his name in the electoral roll before the ERO, nothing further was stated nor the particulars of fraud is pleaded.
35. On the question whether a non-resident Indian who had taken the benefits under the FERA, FEMA and the Income Tax Act can be said by that very fact that he is not an 'ordinary resident' as he will be away from India most of the time in connection with business, elaborate arguments were addressed by the learned Counsel for the petitioner with reference to the declarations made by the 3rd respondent before the Income Tax Authorities and before the FERA and FEMA authorities. It was submitted that by the mere fact that a person declares himself as a non-resident Indian, it would necessarily mean, by implication that he is not an ordinary resident in any part of India. Learned Counsel even went to the extent of submitting that if a person is a non-resident Indian, he has no right either to get registered in the electoral roll or even contest the elections notwithstanding that he is a citizen and otherwise under the RP Act entitled to be registered. Before finding out how far the said contention is tenable, let me examine whether the provisions of FERA and FEMA Acts can be looked into for interpreting the expression 'ordinary residence' occurring under the RP Act, 1950 and further whether the said Acts gives a meaning that a non-resident Indian should be held as not an 'ordinary resident'.
36. The Representation of People Act, 1950 is a complete code by itself in as much as it deals with all aspects regarding preparation of electoral roll, delimitation of constituencies, revision of electoral rolls, procedural aspects including providing remedies for the affected person for any action taken under the RP Act. The Chapter on Preparation of Electoral Rolls exhaustively deals with all matters - regarding the preparation of electoral rolls and, the qualification and disqualification of a person to get registered in a electoral roll. None of the provisions expressly provide much less even remotely spell out that a 'non-resident Indian' is disqualified from getting registered in the absence of which it would be an act of legislation to introduce an additional disqualification under Section 16 of the RP Act which certainly is impermissible.
37. Besides the above, it is also impermissible to look to other enactments including FERA, FEMA and Income Tax Acts for interpreting the expressions occurring under RP Act unless all the statutes are in pan materia.
38. CRAIES on Statute Law, 7th Ed. States at Pg. 133 under the heading 'Light thrown upon meaning of statute by other Statutes' states as under: 'In considering what light one statute may throw upon the meaning of another statute, it is necessary to ascertain what assistance may be derived first from statutes which are in parimateria to the statutes under consideration. At Pg. 134, learned author states what acts can be considered as statutes in pan materia as 'where acts of parliament are in pari materia i.e., to say are so far related as to form a system or code of legislation, the rule is that such acts are to be taken together as forming one system and as interpreting and enforcing each other. Quoting Omar J in United Society v. Eagle Bank, learned author says 'Statutes are in pari materia which relate to the same person or thing or to the same class of persons or things'. But statutes which are not in pari materia, the Courts have taken the view as 'it is not a sound principle of construction to interpret expressions used in one Act with reference to their use in another Act and the decisions rendered with reference to the construction of one Act cannot be applied with reference to the provisions of another Act when the two Acts are not in pari materia.
39. In JAGATRAM AHUJA v. COMMISSIONER OF GIFT TAX (supra) , the Supreme Court has held 'where the words and expressions defined in one statute as judicially interpreted do not afford a guide to construction of the same words or expression in another statute unless both the statutes are pari materia legislations or it is specifically provided in the statute to give a same meaning to the words as defined in anther statute'. Court held the aim and object of the Gift Tax Act and the Estate Duty Act are not similar, each cannot take the aid of the other for interpreting. The same principle is stated in 1962 (1) Queens Bench 470 wherein it is held, the provisions of the Town and Country Planning Act are not in pari materia with the Housing Act.
40. The FERA Act 1973 has been passed by the Parliament for regulating the payments, dealing in foreign exchange and securities indirectly affecting foreign exchange, import and export of currencies, for the conservation of foreign exchange etc. The Act mainly deals with the economic aspect. Similarly , the FEMA Act, 1999 has been passed to consolidate and maintaining law relating to foreign exchange, external trade and payments and for promoting orderly development of foreign exchange. This is again a legislation for regulating the economic aspect. By no stretch of imagination, either the FERA or FEMA Act can be said to be in pari materia with the RP Act, 1950. The object and purpose of the RP Act vis a vis the FERA and FEMA Act are totally different operating in different fields. Besides what is more, either the FERA Act, 1973, or FEMA Act define the word 'ordinary resident'. To seek the assistance of the said Acts. However, learned Counsel for the petitioner relied on Section 2(p) of the definition clause of FERA Act. All the said clauses and the explanation to Section 2(p) are extracted herein for understanding whether the said clause in any way advances the arguments of petitioner.
41. Section 2(p): 'Person resident in India' means -
(i) a citizen of India, who has, at anytime after the 25th day of March 1947, been staying in India, but does not include a citizen of India who has gone out of, or stays outside India, in either case -
(a) for or on taking up employment outside India, or
(b) for carrying on outside India or business or vocation outside India, or
(c) for any other purpose, in such circumstances as would indicate his indention to stay outside India for an uncertain period;
(ii) a citizen of India, who having ceased by virtue of paragraph (a) of paragraph (b) or paragraph (c) or Sub-clause (i) to be resident in India, returns to, or stays in, India, in either case -
a. for on or taking up employment in India, or
b. for carrying on in India a business or vocation in India, or
c. for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period;
(iii) a person, not being a citizen of India, who has come to, or stays in India, in either case -
a. for on taking up employment in India, or
b. for carrying on in India business or vocation in India, or
c. for staying with his or her spouse, such spouse being a person resident in India, or
d. for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period;
(iv) a citizen of India, who, not having stayed in India at any time after the 25th day of March, 1947, comes to India for any of the purposes referred to in paragraphs (a), (b) and (c) of Sub-clause (iii) or for the purpose and in the circumstances referred to in paragraph (d) of that sub-clause or having come to India stays in India for any such purpose and in such circumstances.
Explanation: A person, who has, by reason only of paragraph (a) or paragraph (b) or paragraph (d) of Sub-clause (iii) been resident in India shall, during any period in which he is outside India, be deemed to be not resident in India.
42. It has categorised a 'resident in India' into four categories. In the first category is included a citizen of India who after 25.3,1947 staying in India but does not include a citizen of India who has gone out for employment, business or indicates his intention to stay outside India. But, however, if the citizen of India who is staying outside returns back, is considered a resident of India under Clause (ii). Clause (iii) defines even a non citizen as a resident of India. Clause (iv) states, even a citizen or person who has stayed outside after 25.3.1947 and who returns to India either for studies or for business, etc., is considered a resident of India. The purpose of the definition of the expression 'a resident of India' is only for the purposes of the act which deals in foreign exchange and payments to be made by non-resident Indian; is clear by a reading of Section 8 and 9; in no way the provisions of the said Act even remotely suggests that a citizen of India cannot chose a place in India as his place of ordinary residence while carrying on business in other countries.
43. The FEMA Act, 1999 also defines a person 'residing in India' under Section 2(v). The same is extracted herein;
Section 2(v) : 'Person resident in India' means -
(i) a person residing in India for more than one hundred and eighty two days during the course of the preceding financial year but does not include -
(A) a person who has gone out of India or who stays outside India, in either case -
a. for or on taking up employment outside India, or
b. for carrying on outside India a business or vocation outside India, or
c. For any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period;
(B) a person who has come to or stays in India, in either cases, otherwise than -
a. for or on taking up employment in India, or
b. for carrying on in India business of vocation in India, or
c. for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period;
(ii) any person or body corporate registered or incorporated in India.
(iii) an office, branch or agency in India owned or controlled by a person resident outside India.
(iv) an Office, branch or agency outside India owned or controlled by a person resident in India.
44. It does not exclude the possibility of a citizen of India having his ordinary place of residence at India and still be carrying business outside India for purpose of FEMA Act. Similarly, no provision under the Income Tax Act has been brought to my notice which excludes a person from having ordinary residence in India still carry on business outside India. The concept of 'ordinary resident' for the purpose of RP Act is totally different from the concept of 'non-resident India'. Hence, in my view by the mere fact of being a 'non-resident' within the meaning of FERA and FEMA acts by itself, it cannot be held he is not an 'ordinary resident'. A further contention was raised that most of the time petitioner will be staying outside India in connection with his business, such a person cannot be an ordinary resident in any part of India. The answer is, that if a person has chosen any place in India as his ordinary place of residence, mere absence from the said place either for short or long duration will not mean that he has abandoned or voluntarily given up the said place of ordinary residence.
45. In LEWIS v. LEWIS (supra), though the expression 'ordinary resident' came up for consideration under the Matrimonial Clauses Act, 1950, the said decision may be referred to with advantage only for the limited purpose to state that as along as the intention of the person having an 'ordinary residence' is not abandoned mere absence from the said place is of no consequence. That was a case where the parties to the decision were married in London in 1942 and lived in a flat belonging to the wife. In 1951, when the husband went to Australia the wife joined him with an intention to return to her ordinary place of residence early. Later when incompatibility developed between the parties, the wife filed a petition for divorce. When the husband took up a defense that the English Courts had no jurisdiction as London was not her 'ordinary residence ' Willmer J held:
The Court had jurisdiction on the ground that the wife had been ordinary resident in England for the three years immediately preceding Oct 5, 1954, because (i) on the facts the wife's stay in Australia was temporary at all times and she remained throughout ordinarily resident in England, and (ii) even if she had become ordinarily resident in Australia, her act of boarding a ship to bring her back to the country which had previously been her home was in the circumstances a resumption by her of ordinary residence in England.
46. The other ground on which the petitioner wanted the name of the 3rd respondent to be deleted is, that the 3rd respondent fraudulently got his name included in the electoral roll. Except stating so, no particulars of fraud are even stated much less it is the case of the petitioner that she lead any evidence to prove the fraud which was not looked into. No such ground was taken in the complaint before the ERO.
47. On the contention that no enquiry as contemplated under Rule 26 of the Electoral Registration Rules and Section 20(7) of the RP Act was ever held. According to the learned Counsel, on 29.11.1999 the 3rd respondent is alleged to have made the application and on the very next date ie. on 30.11.1999, the ERO ordered for registering his name. Learned Counsel read from annexure R to contend so. Annexure R is a copy of the application filed by the 3rd respondent in Form 6 under Rule 13(1) and 26 of the Electoral Registration Rules. In the said application, the 3rd respondent has stated that he was born at Calcutta in the State of West Bengal and under the Column 'particulars of the place of ordinary residence', he has stated that he has been staying at No. 3, Vittal Mallya Road, Bangalore and in the column 'period of Continuous Residence', he has stated as 10 years and 6 months before the filing of the application. The Application is dated 29.11.1999. The application consists of another part which is meant to be used by Registration Officer only and to be filled by the officer receiving the application. The said Form contains a column under the heading 'Details of Action Taken' and 'whether an application has to be accepted or rejected and the reasons for acceptance; which has to be filled up by the ERO of the Constituency. A reading of the entries in the said column indicate that the authorities has stated that the application of Dr. Vijay Mallya for inclusion of the name in the electoral roll in Form 6 has been accepted and a serial number allotted at No. 806 in part No. 7. Basing on the entries therein, it was very seriously contended that the application was accepted the very next date though Rule 26 provides the procedure for inclusion of a name in the electoral roll i.e., the application must be published in a notice board, objections must be invited and enquiry should be conducted and thereafter the order has to be passed. What this contention overlooks is, as rightly contended by the counsel for the 3rd respondent. Mr. Udaya Holla, the column 'details of action taken' in Annexure R is a record of the action taken by the authorities on the application to be kept for office use. That has no bearing regarding the actual action taken which will be drawn up in a separate file.
48. Another aspect that has to be noted herein is, it was not on that ground the petitioner had made the complaint before the ERO earlier on 17.3.2002 or on 6.5.2002 - Annexures M and N for deleting the name of the 3rd respondent from the electoral roll. For the first time, she raised the said ground before the appellate authority. Having not made a complaint before the ERO who was the original inquiring authority under Section 22, she cannot come out with such pleas during the hearing of the appeal. Besides, as held by the Supreme Court in Lal Babu Hussain v. Electoral Registration Officer, : [1997]225ITR561(SC) 'Having regard to the provisions of the Representation of Peoples Act, 1950 and the Registration of Electoral Rules particularly, Section 22 of the Act and Rule 21-A of the Rules, since the name is already entered it must be presumed that before entering his name, the officer concerned must have gone through the procedural requirements under the Statute. A presumption arises that the officials had followed the required legal procedure before registering the name of the 3rd respondent though rebuttable, and the burden of rebutting the presumption was certainly on the petitioner which she has failed to discharge.
49. In the same context, learned Counsel submitted that the alleged order of the ERO dated 15.12.1999 is created one is very evident by looking at the file containing the order (produced by the ERO for the first time when arguments were being addressed before this Court) or at any rate, was a post facto decision not passed prior to the inclusion of the name of 3rd respondent. This complaint is made for the first time before this Court without any foundation of pleadings thus denying an opportunity to ERO to explain, nor was such a ground raised before the ERO or before the appellate authority in the absence of which, she was not entitled to take such a contention for the first time before the appellate authority and this Court.
50. It is a fundamental rule of pleadings that 'where the ground urged involves questions of fact, all relevant facts must be averred'. In Narendra Bahadur Singh and Anr. V. State of UP., : [1977]2SCR226 it has been held that where ground raised in the Writ Petition pertains to questions of fact, necessary averments in that regard has to be made in the Writ Petition.
51. That apart, this Court has in the case of J. ROBERT v. RAM JETHMALANI (supra) held after referring to the decision of Hon'ble Supreme Court in 1963 SC 458 that merely because there is a procedural lapse, the inclusion of the name of the person in the voters list will not become non-est. The relevant portion is extracted herein.
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 officer did not follow the procedure prescribed in Rule 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 roll was clearly illegal. Under Section 30 of the Representation of 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 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 or, by preferring an appeal under Rule 24(SIC 277) of the Rules, or by resorting to any other appropriate remedy. But, it was contended before the High Court that the action of Electoral Registration Officer was a nullity in as much as he made the order without giving notice as required by the Rules. We find it difficulty 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 appellant's name in the electoral roll land 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 officer's act nonest though his order may be liable to be set aside in appeal or by resorting to any other appropriate remedy.
52. No other contentions are urged.
53. For the reasons stated above, I do not find any merit in the petition.