ORDER
N. Kumar, J.
1. The respondent has filed an application I.A.I/2006 under Order 7 Rule 11 of CPC, 1908, read with Section 87 of the Representation of People Act 1951, requesting the Court to reject the above election petition as the same does not disclose a cause of action. In the affidavit filed in support of the said application he has reiterated what he has stated in the statement of objections filed to the election petition.
2. The petitioners have preferred this Election Petition under Section 81 of the Representation of People Act, 1951, (hereinafter for short referred to as 'the Act') for a declaration that the election of respondent Sri Marithibbegowda from Karnataka South Teachers Constituency of Karnataka State to the Karnataka Legislative Council declared on 19.6.2006 as null and void and set aside the same and for other consequential reliefs.
3. Petitioners contested for Legislative Council Election from Karnataka South Teachers Constituency in the election held on 17.6.2006. The Karnataka South Teachers Constituency consists of Mysore, Chamrajnagar, Mandya and Hassan Districts. The calendar of events was issued on 24.5.2006 as per Annexure-A. The last date for submitting the nomination paper was 31.5.2006. The last date for withdrawal of the nomination was 3.6.2006. The date of election was fixed on 17.6.2006. After the last date for withdrawal, 11 candidates remained in the election fray including the petitioners herein. The list of contesting candidates are produced as Annexure-B.
4. In the election held on 17.6.2006, the first respondent was declared as elected on securing 8807 votes. The certified copy of the return of election indicating the number of votes secured by each candidate is produced as Annexure-C. The voting statistics in respect of each polling station is produced as per Annexure-D. The first petitioner got eliminated in the 10th round which benefited the first respondent. The second petitioner was eliminated in the 11th round and thereafter first respondent was declared as elected. Only the difference between the petitioners and the winning candidate was a marginal difference in all the rounds.
5. The draft voters' list was issued on 12.12.2005 and the modified voters' list was issued on 1.3.2006. On 31.5.2006 in respect of these voters list several objections were filed pointing out that the names have been wrongly included in the voters list. On the basis of the objections certain names were deleted. However, the Electoral Registration Officer and Asst. Electoral Registration Officer have not bothered to verify the conditions of the eligibility of the voters and have permitted several ineligible persons to cast their votes in the election. The State Government has issued a notification on 28.8.1962 under Section 27(3) of the RP Act specifying the type of educational institutions for the purpose of conducting election to the Legislative Council in the Teachers Constituency. The said notification only enumerates the type of educational institutions without giving details of the name of the institution. The same notification is being followed even though several new educational institutions have come up as on day. The election which is held on the basis of the list prepared on 28.8.1962 will not be a valid election as it does not take within its fold several other educational institutions. The teachers engaged in all educational institutions which are higher than that of Secondary School are entitled to exercise their franchise. Prescribing of the educational institutions will have to be done prior to every election. Article 171 of the Constitution states that a person should be engaged in teaching 'in such educational institutions within the State, not lower in standard than that of a Secondary School, as may be prescribed by or under any law made by the Parliament'. It is therefore necessary to prescribe a list of all educational institutions throughout Karnataka State. It is not enough if the list contains only certain types of educational institutions. Hence, the petitioners submit that the non-prescription of the educational institutions itself would invalidate the entire election. The election is liable to be declared as invalid for not complying with Article 171 of the Constitution, and Section 27 of the Representation of People Act.
6. It is further contended that the election to the Legislative Council is vitiated by permitting several ineligible voters to exercise their franchise. The election is liable to be set aside on the ground of reception of void votes and rejection of invalid votes. In this regard the petitioners have set out the different areas of ineligibility. They are:
(a) The Primary School Teachers have been permitted to vote in the election, even though it is only the educational institutions higher than secondary level who are entitled to vote. The particulars of 17 teachers who are working in primary schools of Mysore City who are not entitled to vote but whose names are included in the voters list is set out and the endorsement issued by the Block Education Officer in this regard are produced as Annexure-J, J1, J2, J3 and J4.
(b) There are several Part-Time/Guest Faculty Lecturers who are working in different educational institutions and they have been permitted to vote even though they are not eligible to exercise their franchise. The list of Guest Faculty/Part-Time lecturers working in various institutions are set out and copies of the same are produced at Annexures-K, K1 and K2.
(c) The Job Oriented Course teachers working in Pre-University colleges are also teaching part time and they are ineligible to cast their votes in the Legislative Council in teachers Constituency. These teachers have been allowed to vote in the election even though they are not eligible to vote in the Council Election. In this regard documents are produced to show the persons who have been allowed to vote despite the fact that they could not have voted in the council election. The said documents are produced and marked as Annexures-L, L1, L2, L3, L4, L5, L6 and L7.
(d) Librarians have been allowed to vote even though they are not entitled to. The names included in the voters list and who are allowed to exercise their franchise are also set out. They are four in number.
(e) There are certain Computer Trained Assistants in different High Schools and PU Colleges. They are called Mahiti Sindhu Teacher. They are working on contract basis and the list of teachers are set out in Annexures-M, M-l and M-2.
7. Therefore, it was contended that in accordance with the provisions of the Constitution and the provisions of the R.P. Act it is only persons who have put in three years of service within a period of six years commencing from the qualifying date are entitled to vote. However, several persons who are just aged 20, 23, 24 years are enrolled as voters. To become a teacher, a person should have completed graduation and B.Ed, degree in normal course, a person can acquire this qualification by a minimum age of 22 years. Thereafter, the teacher will have to put in three years of service. In other words, a person who is aged less than 25 years will not be entitled to vote. The respondents have permitted teachers and others who are aged less than 25 years to exercise their franchise. A consolidated list of such persons in different Districts is collected and marked as Annexure-N.
8. There are several teachers who are not working in any of the institutions, whose names have also been included. In support of the same, documents are produced as per Annexure-P, P-l, P-2, P-3, P-4, P-5, P-6 and P-7. All these persons have cast their vote even though they are not eligible to vote either under the provisions of the Constitution of India or under the Representation of People Act. If these persons had not been permitted to vote, the same would have materially altered the results of the election. The names of all these persons are found in the voters list and they have cast their vote thereby materially affecting the result of the election. The petitioners reserve liberty to produce copies of the voters list at a later point of time. The aforesaid mentioned facts clearly demonstrate that the result of the election is materially affected by 'non-publication of a list of approved educational institutions, by permitting ineligible persons to vote and by denying eligible persons to exercise their franchise'. This has materially affected the result of the election, and as such the election of the respondent is liable to be declared as void.
9. The difference of votes between the petitioners and the respondent is very marginal. In fact the difference is only a few 100s in the 8th and 9th round of election. As several persons have been allowed to vote in the election and several persons who are eligible to vote have been prevented from exercising their vote, the result of the election is materially affected by such illegalities. The entire basis in conducting the election is a prescribed list of educational institutions. In the absence of such a list of educational institutions there can be no valid election held for the Legislative Council. Therefore, it is contended by improper reception of votes in his favour and by improper refusal of votes of the teachers working in several educational institutions and by non-publication in official gazette the list of prescribed educational institutions as provided under Article 171 of Constitution of India and Section 27 of the RP Act the election has been materially affected and therefore they have sought declaration that the election of the respondent from Karnataka South Teachers Constituency of Karnataka State to the Karnataka Legislative Council declared on 19.6.2006 as null and void and to set aside the same.
10. After service of notice the respondent has entered appearance. He has filed detailed written statement traversing the allegations made in the election petition. He contends that the election petition is not maintainable under law, bereft of merits and hence deserves to be dismissed in limine. He has raised a preliminary objection. He contends that the main ground on which election petition is filed is that ineligible voters have been included in the voters list and those persons have been permitted to exercise their franchise. In that connection he submits that the voters list/electoral roll of the election is prepared under the provisions of Representation of People Act, 1950 (for short hereinafter referred to as the 'Act of 1950'). Section 27 and in particular Sub-sections 4, 5(b) and 6 of the 1950 Act provide for preparation of voters list of the Council Constituency. The Act of 1950 also provides for filing of objections for inclusion of names in the voters list, hearing of objections by the Electoral Registration Officer, concerned appeal to the Chief Electoral Officer to challenge any inclusion in the voters list on the ground that the same is illegal. It is the only remedy available to an aggrieved party. Right to vote is a statutory right subject to certain restrictions under Section 62 of the Act. It is clear if a person's name is included in an Electoral Roll of a constituency, he is entitled to vote unless disqualified under Section 16 of the Act of 1950 and other restrictions imposed in Sub-sections 2 to 5 of Section 62 of the Act. An election petition may be filed challenging the election of elected candidate only on the grounds as set out under Section 100 of the 1951 Act. Therefore, he contends that the alleged ground of inclusion of ineligible persons in the voters list and the said ineligible voter exercising his franchise, cannot be a ground to set aside the election of any returned candidate under Section 100 of the Act. The case is completely covered by judgment of the Supreme Court in the case of Shyamdeo PD Singh v. Nawal Kishore Yadav reported in (2000)8 Supreme Court Cases 46, where it was held that inclusion of person or persons in the electoral roll by an authority empowered in law to prepare the electoral rolls, though they were not qualified to be so enrolled, cannot be a ground for setting aside an election of a returned candidate under Sub-clause (iii) or (iv) of Clause (d) of Sub-section (1) of Section 100 of the 1951 Act.
11. The facts pleaded in the petition by themselves do not disclose a cause of action and even if all the allegations in relation to inclusion of names of the persons who are not eligible in the voters list are true, the same cannot be a ground for setting aside the election. Therefore the election petition is not maintainable and requires to be rejected at the threshold on the above preliminary objections.
12. I have heard the learned Counsel for the parties on this interlocutory application/preliminary objection.
Sri. Shantharaju, learned Senior Counsel contended that Section 100 of the Act contains the grounds for setting aside an election. It is clear from the election petition that all the persons who according to the petitioners were ineligible to vote, are included in the voters list. Once a person's name finds a place in the voters list being registered as voter in the Electoral Roll, unless he is disqualified from voting in the election under Section 16 of the Act, he is entitled to vote in the election and that, it cannot be said that it is a case of improper reception of a void vote. He submits in an election petition filed under Section 81 of the Act the said invalidity cannot be gone into. That is a question to be gone into under the provisions of Act of 1950 which provides a comprehensive machinery. In so far as the next contention that the result of the election has been materially affected by non-compliance of the provisions of the Constitution or this Act or under the Rules and Provisions made under the Act is concerned, there is no such non-compliance. Article 171 of the Constitution provides for an electorate constituency of persons who have been for the last three years engaged in teaching in such educational institutions within the State not lower in standard than that of Secondary School. The said provision do not require that the names of educational institutions should be notified as contended by the petitioners. What is to be notified is such educational institutions. Notification dated 28.8.1962 relied on by the petitioner do satisfy the requirement of Section 171 and therefore on the face of it there is no question of non-compliance with any constitutional provision in the conduct of election. Therefore, he contends that the questions raised by the petitioners constituting a cause of action in the election petition, is not a matter which can be gone into in a petition filed under Section 81 of the Act. As such the petition does not disclose a cause of action and accordingly the petition is liable to be dismissed.
13. Sri. Ashok Haranahalli, learned Counsel appearing for the petitioner contended that the case of the petitioners falls squarely under Section 100(1)(d)(iii) and (iv) of the Act which deals with improper reception, refusal or rejection of any vote or the reception of any vote which is void and in non-compliance with the provisions of the Constitution or of this Act or any Rules or Provisions made under this Act. Article 171 of the Constitution mandates that any notification to be issued under Section 27(3) of the Act of 1950, the names of educational institutions have to be mentioned. A perusal of the notification shows that the details of the names of institutions is not mentioned. In fact, several institutions have come into existence subsequent to the notification dated 28.8.1962 and the teachers working in those institutions are prevented from casting their votes as their names were not included in the voters list and therefore there is non-compliance of this constitutional provision. The same can be gone into in an election petition as that is a ground for setting aside the election of returned candidate. Secondly, he contended that Article 171 also prescribes the qualification for being included in the names of Electoral Roll. It provides a voter should have been for at least three years engaged in teaching in such educational institutions in the State not lower in standard than that of Secondary School and should be ordinarily resident in a Teachers constituency and has within six years immediately before the qualifying date is engaged in teaching for a period of three years in any of the educational institutions specified in clause (b) of Sub-section (3) by the State Government concerned. The petitioners have set out in the petition the voters who do not possess this qualification but whose names are included in the voters list and who have cast their vote. Therefore, it is a case of improper reception of a vote which is void. Similarly he contends, as several eligible persons such as persons who are working in institutions like CFTRI and CSRTI were not included in the voters list and consequently were not permitted to vote, it would be a case of improper refusal to vote which again is a ground for setting aside the election of a returned candidate. He submits all these matters can be gone into in an election petition and only after trial the court will be able to find out the truth or otherwise of these allegations. As meticulous particulars of these irregularities are set out in the election petition, it cannot be said that the election petition does not disclose any cause of action as contended by the respondents. He submits that these defects and deficiencies pointed out by the petitioners goes to the route of the jurisdiction and they are jurisdictional errors. As such this Court in an election petition under Section 81 has to go into the jurisdictional errors. If those jurisdictional errors are established then the election of the returned candidate is liable to be set aside.
14. Section 87 of the Act provides that, subject to the provisions of the Act and on any rules made thereunder every petition shall be tried by the High Court as clearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, for the trial of suits. Therefore, Order 7 Rule 11 is attracted to an election petition filed under Section 81 of the Act. Order 7 Rule 11 provides for rejection of the plaint. It mandates rejection of plaint. It reads as under:
The plaint shall be rejected in the following cases:
(a) Where it does not disclose a cause of action.
(b) xxxx
(c) xxxx
(d) xxxx
(e) xxxx
15. Therefore, it is clear that an election petition shall be rejected if it does not disclose a cause of action. In fact that is a ground on which respondent is seeking rejection of the election petition. In order to find out whether there is any cause of action for the petition what is to be seen by the court is well settled.
16. The Supreme Court in the case of Harishanker Jain v. Sonia Gandhi : AIR2001SC3689 has held that it is the duty of the Court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a Court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence. No amount of evidence can cure basic defect in the pleadings.
17. The Supreme Court in the case of D. Ramachandran v. R.V. Janakiraman and Ors. : AIR1999SC1125 , has held that it is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or triable issue as such. The Court cannot probe into the facts on the basis of the controversy raised in the counter. It is elementary that under Order VII Rule 11 (a) C.P.C., the Court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the rule, there cannot be a partial rejection of the plaint or petition.
18. Therefore, it is settled law that, when a preliminary objection is raised contending that the plaint or election petition do not disclose cause of action, what the court should look to is, the plaint or the election petition and nothing else. The averments in the petition should be assumed to be true and then find out any of the reliefs prayed for could be granted to the plaintiff. The Court has to find out whether those averments disclose a cause of action or triable issue as such. The court cannot probe into the facts on the basis of the controversy raised in the counter. Therefore, the court should not look beyond the pleadings contained in the election petition or the plaint, for the purpose of finding out whether the same discloses the cause of action or not. If it does not disclose the cause of action, then there is no discretion left in the court, except to reject the plaint or election petition. The language employed under Order 7 Rule 11 is that the plaint shall be rejected. It is mandatory.
19. Therefore, in the light of the aforesaid legal position, the Court has to look into the averments in the Election Petition, then the Court should assume that the allegations in the petition are true. It is thereafter the Court has to find out whether those averments disclose a cause of action or a triable issue as such.
20. In this back ground, if we look at the averments in the petition, the petitioner is seeking for setting aside the election of the returned candidate on two grounds. Firstly, that the election of the returned candidate has been materially affected by inclusion of the names of persons in the electoral roll who do not possess the qualification prescribed under the Constitution and the Act of 1950, and by improper reception of votes in favour of the returned candidate and by improper refusal of votes of teachers working in several educational institutions. Secondly, by non-publication in official gazette, the names of the list of prescribed educational institutions as provided under Article 171 of the Constitution of India and Section 27 of the Act of 1950.
21. In support of the first ground, the petitioner has set out the particulars in paragraphs 10 to 12. Area ding of the averments in the aforesaid paragraphs disclose that, the primary school teachers have been permitted to vote in the election, even though it is only the educational institutions higher than secondary level who are entitled to vote and the particulars of such teachers are set out. Secondly, there are part time/guest faculty teachers who are working in different educational institutions and they are permitted to vote even though they were not eligible to exercise their franchise. Thirdly, the job oriented course teachers working in Pre-University colleges who are also teaching part time and are ineligible to cast their votes are allowed to vote in the election. Particulars are set out. The librarians have been allowed to vote even though they are not entitled to and the names of such librarians are also set out. Even there are some Computer Trained Assistants working in different High Schools and PU Colleges. These persons are called as Mahithi Sindu Teachers and they are working on contract basis and the particulars of those teachers are also set out. Similarly, persons who are aged less than 25 years who have even not acquired the qualification prescribed for voting also have voted and the particulars are set out. There are several teachers who are not working in any of the institutions, whose names have also been included and the particulars of such teachers are also set out. It is these teachers who have cast their vote even though they are not eligible to vote either under the provisions of the Constitution of India or under the Representation of the People Act. The names of these persons are found in the voters list and they have cast their vote thereby materially affecting the result of the election. Several persons who are eligible to vote have been prevented from exercising their vote, thus the result of the election is materially affected by such illegalities.
22. Therefore, the question that arise for consideration is as under:
Whether the ineligibility of the persons whose name is entered in the electoral roll, can be gone into by the Court trying an election petition?
23. The said question fell for consideration before the Supreme Court and has been dealt with exhaustively and law on the point is well settled.
24. The Constitution Bench of the Supreme court in the case of Durga Shankar Mehta v. Raghuraj Singh and Ors. : [1955]1SCR267 , dealing with the question whether the returned candidate in an election to the Legislative Assembly Constituency in Madhya Pradesh was duly qualified to be chosen to fill a seat as he was less than 25 years of age on the date of filing of nomination papers, has held that for want of qualification of a candidate does not appear on the face of the nomination paper or of the electoral roll, but is a matter which could be established only by evidence, an enquiry at the stage of scrutiny of the nomination papers is required under the Act only if there is any objection to the nomination. The Returning Officer is then bound to make such enquiry as he thinks proper on the result of which he can either accept or reject the nomination. But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination, the Returning Officer has no other alternative but to accept the nomination. In other words, the electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved. It would have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the materials placed before him. When neither of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance. It is certainly not final and the Election Tribunal may, on evidence placed before it, can come to a finding that the candidate was not qualified at all. But the election should be held to be void on the ground of the constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer. A case of this description comes under Sub-section (2)(c) of Section 100 and not under Sub-section (1)(c) of the section as it really amounts to holding an election without complying with the provisions of the Constitution, and that is one of the grounds specified in clause (c) of Sub-section (2). The expression' 'non-compliance with the provisions of the Constitution' is sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer, but there is a fundamental disability in the candidate to stand for election at all. When a person is incapable of being chosen as a member of a State Assembly under the provisions of the Constitution itself but has nevertheless been returned as such at an election, it can be said without impropriety that there has been non-compliance with the provisions of the Constitution materially affecting the result of the election. There is no material difference between 'non-compliance' and 'non-observance' or 'breach' and this item in clause (c) of Sub-section (2) may be taken as a residuary provision contemplating cases where there has been infraction of the provisions of the Constitution or of the Act but which have not been specifically enumerated in the other portions of the clause. When a person is not qualified to be elected a member, there can be no doubt that the Election Tribunal has got to declare his election to be void. Under Section 98 of the Act this is one of the orders which the Election Tribunal is competent to make. If it is said that Section 100 of the Act enumerates exhaustively the grounds on which an election could be held void either as a whole or with regard to the returned candidate, we think that it would be a correct view to take that in the case of a candidate who is constitutionally incapable of being returned as a member there is non-compliance with the provisions of the Constitution in the holding of the election and as such Sub-section (2)(c) of Section 100 of the Act applies.
25. The Supreme Court in the case of Baidyanathpanjira v. Rammahto and Ors. : [1970]1SCR839 was considering the question whether the votes cast by electors after the last day from making the nominations for elections is valid and whether the said question can be gone into in an Election Petition. They were interpreting Section 239(1)(2) and (3) of Act of 1950. In that context, it was held that:
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. Sub-section (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 the provision, it would have been possible for 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 23 (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 in question. In our opinion, Clause (a) 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 23(3) 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
26. Again in the case of Kabul Singh v. Kundan Singh : [1970]1SCR845 , the Supreme Court held that:
The right to vote being purely a statutory right, the validity of any vote has to be examined on the basis of the provisions of the Act. We cannot travel outside those provisions to find out whether a particular vote was a valid vote or not. In view of Section 30 of the 1950 Act, Civil Courts have no jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled to register himself in the electoral roll in a constituency or to question the illegality of the action taken by or under the authority of the electoral registration officer or any decision given by any authority appointed under that Act for the Revision of any such roll. Part of the 1950 Act deals with the preparation of rolls in a constituency. The provisions contained therein prescribe the qualifications for being registered as a voter (Section 19), dis-qualifications which disentitle a person from being registered as a voter (Section 16), revision of the rolls (Section 21), correction of entries in the electoral rolls (Section 22), inclusion of the names in the electoral rolls (Section 23), appeals against orders passed by the concerned authorities under Section 22 and 23 (Section 24). Section 14 to 24 of the 1950 Act are integrated provisions. They form a complete code by themselves in the matter of preparation and maintenance of electoral rolls. It is clear from those provisions that the entries found in the electoral roll are final and they are not open to challenge either before a Civil Court or before a Tribunal which considers the validity of any election. In B.M. Ramaswamy v. B.M. Krishnamurthy : [1963]3SCR479 , this Court came to the conclusion that the finality of the electoral roll cannot be challenged in a proceeding challenging the validity of the election.
27. The Supreme Court in the case of Pampakavirayappa Belagali v. B.D. Jatti and Ors. : [1971]2SCR611 was dealing with the question, whether the validity of the entry of the name of the first respondent as elector in the electoral roll relating to Jamkhandi constituency could be gone into in an election petition filed under Section 81 of the Act. Answering the said question the Supreme Court held that in order to decide the jurisdiction and powers of the court trying an election petition under the provisions of the Act to determine the validity or legality of an entry in an Electoral Roll we shall have to look at the relevant provisions of the Act of 1950 and the Constitution. The entire scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an Electoral Roll of a constituency can only be challenged in accordance with the machinery provided by it and not in any other manner or before any other forum unless some question of violation of the provisions of the Constitution is involved. The question whether respondent No. 1 was ordinarily resident in Jamkhandi constituency during the material period and was entitled to be registered in the Electoral Roll could not be the subject matter of enquiry except in accordance with the provisions of the Act of 1950. The grounds on which the election can be declared to be void under the Act are set out in Section 100 of the Act. Clause (d) is 'that the result of the election, in so far as it concerns a returned candidate, has been materially affected (i)... (ii)... (iii)... (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act.' Nothing could be clearer than the ambit of this provision. It does not entitle the court in an election petition to set aside any election on the ground of non-compliance with the provisions of the Act of 1950 or of any rules made thereunder with the exception of Section 16.
28. A Constitution Bench of the Supreme Court in the case of Hari Prasad Mulshankar Trivedi v. V.B. Raju and Ors. : [1974]1SCR548 was dealing with the case of election of a successful candidate to the Council of States from the State of Gujarat where the same was challenged on the ground that the returned candidate were not ordinarily resident in the area covered by any parliamentary constituency in the State of Gujarat and that their names had been illegally entered in the electoral roll of the respective constituencies in Gujarat and as they were not 'electors' within the meaning of Section 2(1)(e) of the Representation of the People Act, 1951, they were not eligible to become candidates in the election. After referring to the various judgments of the Supreme Court it has held that Article 327 gives full power to Parliament subject to the provisions of the Constitution to make laws with respect to all matters relating to or in connection with elections including the preparation of electoral rolls. It was, therefore, open to Parliament to prescribe the mode of the preparation of the electoral roll and say that is not liable to be challenged except in the manner provided. Parliament was, therefore, competent, subject to the provisions of the Constitution, to exclude the jurisdiction of the civil court or the tribunal, trying an election petition to go into the question whether the name of any person has been entered therein illegally. The right to stand for election is a statutory right and the statute can therefore regulate the manner in which the right has to be enforced or the remedy for enforcing it. Act of 1950 provides a complete code so far as the preparation and maintenance of electoral rolls are concerned. The Act enacts a complete machinery to enquire into claims and objections as regards registration as voter and for appeals from the decision of the registering officer (see Sections 21 to 24 of the 1950 Act both inclusive). Elaborate rules have also been made for inquiry into claims to be registered as voters and for considering and disposing of objections thereto (see Rules 12 to 24 of the Registration of Electoral Rules). The definition of the word' elector' in Section 2(1)(e) of the 1951 Act would indicate that a person whose name is actually entered in the electoral roll for the time being and who is not subject to any of the disqualifications in Section 16 would be an elector. Any person who is a citizen of India and who has attained the age as prescribed by law, subject to the minimum as provided in Article 326, is entitled to be registered as a voter in the roll of electors. This is the positive way of expressing eligibility for registration as a voter. He should not also be subject to any of the disqualifications prescribed by Parliament by law on the grounds mentioned in the article. The Parliament has prescribed in Section 16 of the 1950 Act the disqualifications. The question whether a person whose name is entered in the electoral roll is qualified under the Constitution and whether he suffers from any of the disqualifications specified in Section 16 can always be gone into by the Court trying an election petition. The electoral roll is never conclusive or final in respect of these matters.
29. The Supreme Court in the case of Shyamdeo Pd. Singh v. Nawal Kishore Yadav (2000) 8 SCC 46 was dealing with a case where the petitioner challenged the election of the returned candidate to a Teachers' Constituency to the Bihar Legislative Council from Patna Teachers' Constituency. The ground of challenge was, election was vitiated by improper reception of votes cast by ineligible persons and by non-compliance with the provisions of the Constitution, the 1950 Act and rules and orders relevant to the election. It was contended that the authorities had included the names of many voters in the electoral roll who were not at all eligible for being so included as they were teaching in the educational institutions which were neither permitted to be established nor affiliated nor recognised by the State Government which was mandatorily required under the provisions of the Bihar Intermediate Education Council Act, 1992. Further it was alleged that, where objections were raised, authorities refused to consider the objections on the ground that the objection petition was not preferred in the prescribed pro forma and further there was not enough time available before the date of filing of nominations, to hear and dispose of applications calling in question the inclusion of as many as 1625 votes in the electoral roll. But, in answering the said question the Supreme Court held that, claims for inclusion in or exclusion from electoral rolls are required to be heard and decided promptly and objectively. However, this could not have been a ground for avoiding the election. It was held that,
The two Articles, i.e., Article 326 and Article 327 contemplate qualifications and disqualifications being provided for, amongst other things, by the appropriate legislature. The fountain source of the 1950 Act and the 1951 Act enacting provisions on such subject are the said two articles of the Constitution. The provisions of Section 16 of the 1950 Act and Section 62 of the 1951 Act read in juxtaposition go to show that while Section 16 of the 1950 Act provides for 'disqualifications for registration' in an electoral roll (qualifications having been prescribed by Section 27 thereof), Section 62 of the 1951 Act speaks of 'right to vote' which right is to be determined by reference to the electoral roll of the constituency prepared under the 1953 Act. The eligibility for registration of those enrolled having been tested by reference to Section 16 or Section 27 of the Act, as the case may be, and the electoral roll having been prepared, under the 1950 Act if a person is or becomes subject to any of the disqualifications provided in clauses (a), (b) and (c) of Sub-section (1) of Section 16, two consequences may follow. His name may forthwith be struck off the electoral roll, in which the name is included, under Sub-section (2) of Section 16 of the 1950 Act. Even if the name is not so struck off yet the person is disqualified from exercising the right to vote at the election by virtue of Sub-section (2) of Section 62 of the 1951 Act. The qualifications prescribed for enrolment in the electoral roll as provided by clause (b) of Sub-section (5) of Section 27 of the 1950 Act are: (i) ordinary residence in a teachers' constituency, (ii) being engaged in the relevant educational institution for a total period of at least three years within the six years immediately before the qualifying date. The inquiry into availability of these eligibility qualifications, under the Scheme of the 1950 Act is to be made at the time of preparation of the electoral roll or while entering or striking out a name in or from the electoral roll. Section 62 of the 1951 Act does not provide that a person who is not qualified to be enrolled as an elector in the electoral roll shall not be entitled to vote at the election. To put it briefly, a disqualification under Section 16 of the 1950 Act has a relevance for and a bearing on the right to vote under Section 62 of the 1951 Act but being not qualified for enrolment in the electoral roll under Section 27 of the 1950 Act has no relevance for or bearing on the right to vote at an election under Section 62 of the 1951 Act. That is the distinction between a 'disqualification' and 'not being qualified'.
The electoral roll is to be deemed final and conclusive as far as the fulfillment of qualification of a voter is concerned but it is not to be deemed final and conclusive by the Election Tribunal so far as the disqualifications attaching to such persons are concerned. An entry in the electoral roll has to be taken to be conclusive proof of the fact that the person fulfils the requisite conditions as to age and residence in the constituency; finality has been given to the decision of the officer preparing the roll insofar as the fulfillment of conditions of registration is concerned but it has not been considered desirable to extend the same finality to the decision on the subject of disqualification as the latter is a more serious matter.
30. After referring to the various judgments on the point, they held that inclusion of person or persons in the electoral roll by an authority empowered in law to prepare the electoral rolls, though they were not qualified to be so enrolled, cannot be a ground for setting aside an election of a returned candidate under Sub-clause (iii) or (iv) of clause (d) of Sub-section (1) of Section 100 of the Act. A person enrolled in the electoral list by an authority empowered by law to prepare an electoral roll or to include a name therein is entitled to cast a vote unless disqualified under Sub-sections (2) to (5) of Section 62 of the Act. A person enrolled in the electoral roll cannot be excluded from exercising his right to cast vote on the ground that he did not satisfy the eligibility requirement as laid down in Section 19 or 27(5) of the Act.
31. The Supreme Court in the case of Hari Shanker Jain v. Sonia Gandhi (SUPRA) has held that a plea that a returned candidate is not a citizen of India and hence not qualified, or is disqualified for being a candidate in the election can be raised in an election petition before the High Court in spite of the returned candidate holding a certificate of citizenship by registration under Section 5(1)(c) of the Citizenship Act. Aplea as to constitutional validity of any law can, in appropriate cases, as dealt with hereinabove, also be raised and heard in an election petition where it is necessary to decide the election dispute. If a person is alleged to be not a citizen of India, and, therefore, suffering from absence of qualification under Article 84 as also a positive disqualification under Article 102 of the Constitution, then the case is one which attracts applicability of Section 10(1)(d)(iv) of the Act and such an issue can be tried by the High Court in an election petition in spite of the returned candidate being enrolled in the voters list for it will be a case of alleged non-compliance with the provisions of Constitution. In spite of a certificate of registration under Section 5(1)(c) of Citizenship Act, 1955 Having been granted to a person and in spite of his having been enrolled in the voters list, the question whether he is a citizen of India and hence qualified for, or disqualified from, contesting an election can be raised before and tried by the High Court hearing an election petition, provided the challenge is based on factual matrix given in the petition and not merely bald or vague allegations.
32. Therefore, the legal principles that can be deduced from the aforesaid decisions of the Apex Court can be stated thus:
The Act of 1950 provides for allocation of seats in and the delimitation of constituencies for the purpose of election to, the House of the People and the Legislatures of States, the qualifications of voters at such elections, the preparation of electoral rolls, the manner of filling seats in the Council of States to be filled by representatives of Union Territories and matters connected therewith. Section 14 to 24 of the 1950 Act are integrated provisions which form a complete code in the matter of preparation and maintenance of electoral rolls. Section 27 deals with preparation of electoral roll for council constituency. Section 16 prescribes the disqualifications. Section 19 prescribes the conditions for registration. The Act provides a complete machinery to enquire into claims and objections as regards registration as voter and for appeals from the decision of the registering officer, and for inquiry into claims to be registered as voters and for considering and disposing of objections thereto. Section 30 of the Act makes it clear that Civil Courts have no power to adjudicate upon any question, whether any person is or is not entitled to be registered in an electoral roll of a constituency or any action taken by the authority for revision of any such roll.
33. The Representation of People Act, 1951 (Act No. 43 of 1951) was enacted to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.
34. The fountain source of the 1950 Act and the 1951 Act are the two Articles 326 and 327 of the Constitution, which contemplate qualifications and disqualifications being provided for, amongst other things, by the appropriate legislature. Article 326 expressly provides that elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage. That is to say, every person who is a citizen of India and who is not less than 18 years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election. Article 327 of the Constitution deals with the power of Parliament to make provisions with respect to elections to Legislatures. The aforesaid two enactments are passed by the Parliament by virtue of such power.
35. The Act defines who is an elector. Section 2(1)(e) of the Act states that,
'elector' in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of the Act of 1950.
36. The definition of the word 'elector' in Section 2(1)(e) of the 1951 Act would indicate that a person whose name is actually entered in the electoral roll for the time being and who is not subject to any of the disqualifications in Section 16 would be an elector. Any person who is a citizen of India and who has attained the age as prescribed by law, subject to the minimum as provided in Article 326, is entitled to be registered as a voter in the roll of electors. He should not also be subject to any of the disqualifications prescribed by Parliament by law on the grounds mentioned in the Article. The Parliament has prescribed in Section 16 of the 1950 Act the disqualifications. The electoral roll is to be deemed final and conclusive as far as the fulfillment of qualification of a voter is concerned but it is not to be deemed final and conclusive so far as the disqualifications attaching to such persons are concerned. An entry in the electoral roll has to be taken to be conclusive proof of the fact that the person fulfils the requisite conditions as to age and residence in the constituency; finality has been given to the decision of the officer preparing the roll insofar as the fulfillment of conditions of registration is concerned but it has not been considered desirable to extend the same finality to the decision on the subject of disqualification as the latter is a more serious matter.
37. Section 62 of 1951 Act deals with right to vote which reads as under:
62. Right to vote
(1) No person who is not, and except as expressly provided by the 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.
(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the Representation of the People Act, 1950 (43 of 1950).
38. The right to vote is a statutory right contained in the Act. All those persons whose name is entered in the electoral roll shall be entitled to vote unless he is disqualified under Section 16 of the Act of 1950. Therefore, this right to vote is to be determined by reference to the electoral roll of the constituency prepared under the Act of 1950. Section 19 of the Act of 1950 prescribes the conditions of registration to be entitled to be registered in the electoral roll. It reads as under:
19. Conditions of registration
Subject to the foregoing provisions of this Part, every person who:
(a) is not less than (eighteen years) of age on the qualifying date, and
(b) is ordinarily resident in a constituency,
shall be entitled to be registered in the electoral roll for that constituency.
39. Section 16 of 1950 Act deals with disqualifications for registration in an electoral roll which reads as under:
16. Disqualifications for registration in an electoral roll
(1) A person shall be disqualified for registration in an electoral roll, if he:
(a) is not a citizen of India; or
(b) is of unsound mind and stands so declared by a competent court; or
(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections.
(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included:PROVIDED that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of Sub-section (1), shall forthwith be reinstated in that roll, if such disqualification is, during the period such roll, is in force, removed under any law authorizing such removal.
40. Section 27 of 1950 Act deals with preparation of electoral roll for council constituencies. Sub-section (3) deals with election to graduate constituency and teachers' constituency which reads as under:
Section 27(3) For the purpose of elections to the legislative council of a State in the graduates' constituencies and the teachers' constituencies, the State Government concerned may, with the concurrence of the Election Commission, by notification in the official Gazette, specify:
(a) the qualifications which shall be deemed to be equivalent to that of a graduate of a university in the territory of India, and
(b) the educational institutions within the State not lower in standard than that of a secondary school.
(4) The provisions of Sections 15, 16, 18, 21, 22 and 23 shall apply in relation to graduates' constituencies and teachers' constituencies as they apply in relation to assembly constituencies.
(5) subject to the foregoing provisions of this section,:
(a) every person who is ordinarily resident in a graduates' constituency and has, for at least three years before the qualifying date, been either a graduate of a university in the territory of India or in possession of any of the qualifications specified under clause (a) of Sub-section (3), by the State Government concerned, shall be entitled to be registered in the electoral roll for the constituency; and
(b) every person who is ordinarily resident in teachers' constituency, and has, within six years immediately before the qualifying date for a total period of at least three years, been engaged in teaching in any of the educational institutions specified under clause (b) of Sub-section (3), by the State Government concerned, shall be entitled to be registered in the electoral roll for the constituency.
(6) For the purposes of Sub-sections (4) and (5), the qualifying date shall be the 1st day of November of the year in which the preparation or revision of the electoral roll is commenced.
41. Section 100 of the Act of 1951 sets out the grounds on which the election of the returned candidate could be declared void.
42. The grounds urged in this election petition are under Section 100(1)(d) (iii) and (iv) which is extracted as hereunder.
Section 100 - Grounds for declaring election to be void
(1) Subject to the provisions of Sub-section (2) if the High Court is of opinion:
(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected:
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,
the High Court shall declare the election of the returned candidate to be void.
43. It is in this background we have to find out whether the petitioner has made out a ground for declaring election of the first respondent to be void.
44. In the instant case we are concerned about the election to a teachers' constituency of Karnataka Legislative Council. The electoral roll of the said constituency is prepared under Section 15 of the Act of 1950. The elector in relation to the said teachers' constituency of the Legislative Council means a person whose name is entered in the electoral roll of that constituency and who is not subject to any of the disqualifications mentioned in Section 16 of the Act of 1950. Section 19 of the Act of 1950 prescribes the general qualifications of a person who shall be entitled to be registered in the electoral roll for that constituency. Similarly, Section 16 of the Act of 1950 provides the general disqualifications for registration in an electoral roll. Clause (b) of Sub-section (5) of Section 27 provides the specific qualification of a person to be entitled to be registered in the electoral roll of the teachers 'constituency. It provides that, every person who is ordinarily resident in a teachers' constituency and has, within six years immediately before the qualifying date for a total period of at least three years, been engaged in teaching in any of the educational institutions within the State, not lower in standard than that of secondary school shall be entitled to be registered in the electoral roll for that constituency. However, Article 327 of the Constitution deals with the power of the Parliament to make provision with respect to elections to Legislatures which reads as under:
327. Power of Parliament to make provision with respect to elections to Legislatures.- Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.
45. As is clear from the opening words of the said Article, the law to be made by the Parliament in so far as elections to the House of Legislature is concerned is subject to the provisions of the Constitution. Article 171 of the Constitution deals with composition of the Legislative Councils. Sub-clause (c) of clause 3 of Article 171 deals with the qualifications of persons who would constitute electorates of a teachers' constituency. It provides as under:
as nearly as may be, one-twelfth shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in such educational institutions within the State, not lower in standard than that of a secondary school, as may be prescribed by or under any law made by Parliament.
46. Therefore, Sub-clause (c) of clause 3 of Article 171 prescribes the qualification for a person to be included in the electoral roll of a teachers' constituency. It is a constitutional requirement. Therefore, the person whose name is included in the electoral roll must satisfy the aforesaid qualifications, namely,
(1) He or she must be engaged in teaching;
(2) In educational institutions not lower in standard than of secondary school;
(3) Minimum three years experience
47. If these qualifications are not there in a person and if such a person's name is included in the electoral roll of a teachers' constituency of a State Legislative Council, then not only such persons are not entitled to vote, but if they vote then it amounts to non-compliance of the provisions of the Constitution. Section 62 of the Act deals with right to vote. It provides that, every person who is for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency. However, clause (2) of Section 62 provides that, no person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the Act of 1950. Under Section 100 the result of the election, in so far as it concerns a returned candidate would be materially affected by the improper reception of any vote which is void or by any non-compliance of the provisions of the Constitution or of the Act or any Rules or Orders made under the Act.
48. In order to decide the jurisdiction and powers of the court trying an election petition under the provisions of the Act, to determine the validity or legality of an entry in an Electoral Roll, what has to be seen is the relevant provisions of the Act of 1950 and the Constitution. The entire scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an Electoral Roll of a constituency can only be challenged in accordance with the machinery provided by it and not in any other manner or before any other forum unless some question of violation of the provisions of the Constitution is involved. In the case of a voter who is constitutionally incapable of being included in the voter's list, is included and he is permitted to vote, then there is non-compliance with the provisions of the Constitution in the holding of the election and as such clause (c) of Sub-section (2) of Section 100 of the Act applies. If a person's name is wrongly entered in the voter's list which does not suffer from any disqualification contained in Section 16 of the Act of 1950 or do not suffer from any disqualification under the Constitution, but only ineligible to be entered in the voter's list for non-compliance of Section 27 of the Act of 1950, then it does not amount to improper acceptance of a vote. It cannot be the subject matter of an election petition. Such an irregularity has to be corrected in the manner prescribed under the Act of 1950 and such a dispute cannot become the subject matter of an election petition. The expression 'non-compliance with the provisions of the Constitution' is sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the vote by the Returning Officer, but there is a fundamental disability in the voter to cast his vote in an election. When a person do not have the prescribed qualification under the Constitution, but nevertheless his name is included in the voter's list, it amounts to non-compliance with the provisions of the Constitution, materially affecting the result of the election. There is no material difference between 'non-compliance' and 'non-observance' or 'breach' and this item in clause (c) of Sub-section (2) may be taken as a residuary provision contemplating cases where there has been infraction of the provisions of the Constitution or of the Act but which have not been specifically enumerated in the other portions of the clause. When a person is not qualified to be a voter at all under the Constitution, there can be no doubt that the Election Tribunal has to take it into account and if such votes had vitiated the election it can declare the election as void. The question whether a person whose name is entered in the electoral roll is qualified under the Constitution and whether he suffers from any of the disqualifications specified in Section 16 of the 1950 Act can always be gone into by the Court trying an election petition. The electoral roll is never conclusive or final in respect of these matters.
49. Therefore, one has to bear in mind the difference between not eligible to be included in the voters' list under the provisions of the Act of 1950, disqualified from being entered in the voters' list under Act of 1950 and not qualified under the Constitution. As is clear from Sub-section (2) of Section 62 of the 1951 Act, a person who is disqualified under Section 16 of the Act of 1950 even if his name is included in the voters' list he is not permitted to vote and if such a person were to caste his vote it would be a void vote. In so far as the persons who do not possess the requisite qualification to be included in the voters list, it is two fold. Firstly, persons who do not possess the qualifications prescribed under the Act of 1950 and the other persons who do not possess the qualification prescribed under the Constitution. If it is a case of not possessing the qualification under the Act of 1950 and if such person's name is included in the electoral roll and if they were to cast vote it would not amount to improper receipt of a vote and the same cannot be the subject matter of a dispute in an election petition. The said dispute has to be resolved in the manner provided under the Act of 1950 as Section 30 of the said Act oust the jurisdiction of the Civil Court as well as the High Court to go into the said questions in an election petition filed under Section 100 of the Act. But, the same would not apply to a case of want of qualification as prescribed under the Constitution. If a person whose name is entered in the electoral roll do not possess the qualification prescribed under the Constitution, then there is a fundamental disability in the voter to cast his vote in an election. If such a person is permitted to vote, it would be a case of non-compliance of the Constitution and that dispute can be gone into in an election petition.
50. The Supreme Court in the case of Shyamdeo P.D. Singh was considering the case of election to a Teachers' Constituency to the Bihar Legislative Council from Patna Teachers' Constituency. The contention was, the authorities had included the names of many voters in the electoral roll who were not eligible for being so included as they were teaching in the educational institutions which were neither permitted to be established nor affiliated nor recognised by the State Government which was mandatorily required under the provisions of the Bihar Intermediate Education Council Act, 1992. Therefore, it is not a case of a person who do not possess the qualification required under the Constitution was entered as an elector in the electoral roll. Therefore, the Supreme Court said that is not a matter which could be the subject matter of an election petition.
51. Similarly, in the case of B.D. Jatti's case, the question was whether the respondent No. 1 was ordinarily resident in Jamkhandi constituency during the material period and was entitled to be registered in the electoral roll. That is a requirement which is prescribed under Section 19 of the Act of 1950. There is no constitutional requirement and, therefore, it was held that the said question cannot be the subject matter of an election petition.
52. In fact a Constitution Bench of the Supreme Court in the case of Mehta was dealing with a question whether the returned candidate in an election to the Legislative Assembly Constituency in Madhya Pradesh was less than 25 years of age on the date of filing of nomination papers, his name had been included in the electoral roll and he was successful in the election. The Constitution provides that for a person to contest he must have completed 25 years. Therefore, it was held his election cannot be set aside on the ground of his nomination was improperly accepted by the returning officer. But the ground of constitutional disqualification can be gone into in an election petition under Section 100 of the Act.
53. Again in the case of Mrs. Sonia Gandhi, the plea was the returned candidate is not a citizen of India and hence not qualified. Article 84 of the Constitution provides the qualification for membership of Parliament. It makes it mandatory that a person should be a citizen of India. Article 102 which deals with disqualification of membership declares that a person who is not a citizen of India is disqualified for being chosen as a member of the Parliament. It is also a disqualification under Section 16 of the Act of 1950. If such a person's name is entered in the electoral roll and he cast the vote or contest the election, if a dispute arises about the citizenship, certainly that is a question which has to be gone into in an election petition under Section 100.
54. Therefore, the law on the point is fairly well settled. If it is a disqualification under Section 16 of the Act of 1950 or a disqualification or not possessing qualification prescribed under the Constitution that can be the subject matter of an election dispute under Section 100 of the Act. By virtue of Section 30 of the Act of 1950 the jurisdiction is not ousted and that is not a matter to be resolved in the manner provided under the Act of 1950.
55. The grievance of the petitioners in this election petition is the primary school teachers have been permitted to vote in the election even though it is only the persons teaching in educational institutions higher than secondary level are entitled to vote. In paragraph 10(a)(i), (ii) and (iii) the particulars of such teachers who are working in primary school have been set out in support of the said contention and Annexures-J, J1, J2, J3 and J4 are the documents to substantiate the said contention. The second grievance is part time/guest faculty lecturers are also permitted to vote even though they are not eligible to exercise their franchise. The particulars of the same are set out in paragraph 10(b)(i), (ii) and (iii) and Annexures K, K1 and K2 are produced to substantiate their contention. Thirdly, the job oriented course teachers working in pre-university colleges are also teaching part time and they are ineligible to cast their votes and the particulars of the same are set out in para 10(c) (i), (ii), (iii) and (iv). Annexures-L, L1, L2, L3, L4, L5, L6 and L7 are the documents produced to substantiate the said claim. Fourthly it is contended that, librarians who are not teaching are also allowed to vote by including them in the voters' list. Paragraph 10(d) of the petition contains the particulars. Fifthly the grievance is that the computer trained assistants working on contract basis in different High Schools and Pre-University Colleges who are called as Mahithi Sindu Teachers are also included in the voters' list and the particulars of the same are set out in para 10(e). Annexures-M, Ml and M2 are the documents supporting the said claim. The sixth grievance is that, persons who are just aged 20,23 and 24 years are enrolled as teachers. To become a teacher a person should have completed graduation and B.Ed Degree. In normal course a person would acquire this qualification by a minimum age of 22 years. Thereafter the teachers have to put in three years of service. In other words, a person who is less than 25 years would not be entitled to vote. Therefore, persons who are less than 25 years, their names are included in the voters' list and they are permitted to vote. The said averments are contained in paragraph 10(f). Annexure-N gives the consolidated list of the names of the persons who come under this category. Lastly, the grievance of the petitioners is that, the names of persons who are not working as teachers at all in any institutions have been included. The particulars of the same are set out at paragraph 10(g). Annexures-P, P1, P2, P3, P4, P5, P6 and P7 are the names of such persons who are included in the voters' list. The names of the aforesaid persons are found in the voters' list and they have cast their vote, thereby materially affecting the result of the election.
56. None of the irregularities as pointed out above would constitute a disqualification under Section 16 of the Act of 1950. If all those case had fallen under Section 27 of the Act of 1950 even if those facts are true still in an election petition challenging the election of a successful candidate the said question could not be gone into. It would be a case of persons who are ineligible to vote, whose name is wrongly included in the electoral roll which should have been challenged under the provisions of the Act of 1950 as Section 30 of the said Act ousts the jurisdiction of Civil Courts to go into the said question. Similarly, the aforesaid judgment referred to lay down the law that non-compliance with the requirements of Section 27 of the Act of 1950 cannot be the subject matter of an election petition. But, apart from non-compliance with Section 27 of the Act of 1950, the aforesaid irregularities pointed out would fall squarely within Sub-clause (c) of clause 3 of Article 171 of the Constitution. The said Article provides an electorate of a teachers' constituency consisting of persons who have been for at least three years, engaged in teaching in such educational institutions within the State, not lower in standard than that of the secondary school. Therefore, the said requirement is a constitutional requirement and not a mere statutory requirement under Section 27 of the Act of 1950. It would be a case of a person, who is constitutionally incapable of being included in the voters' list is included in the electoral roll. There is a fundamental disability in the said voter to cast his vote in an election. When a person do not have the prescribed qualification under the Constitution but nevertheless his name is included in the voters' list it constitutes non-compliance with the provisions of the Constitution, materially affecting the result of the election. As held by the Constitution Bench, in the case of Hari Prasad Mulshankar Trivedi's case, the question whether a person whose name is entered in the electoral roll is qualified under the Constitution and whether he suffers from any of the disqualifications specified in Section 16 can always be gone into by the Court trying an election petition. The electoral roll is never conclusive or final in respect of these matters. The entire argument on behalf of the respondents proceed on the assumption that all the grievance made by the petitioners, even if it is true, it would not constitute a disqualification under Section 16 of the Act of 1950. Even if it amounts to contravention of Section 27(5) of the Act of 1950 the remedy open to the petitioners is to avail the remedy provided under the Act of 1950 and the same cannot be the subject matter of an election petition. But, this argument ignores the settled legal position that when the Constitution prescribes the qualification of a person to be entered as a voter in the electoral roll and persons who do not possess the said qualification are entered as electors in the electoral roll, such persons have no right to vote and if they exercise their franchise the said vote would be void. Therefore, that is a case which squarely falls within Sub-clause (iv) of clause (d) of 1 of Section 100 of the Act which declares that if there is any non-compliance with the provisions of the Constitution or the Act or of any Rules or orders made under the Act and that it materially affect the result of the election, it would constitute a ground for declaring election to be void. Therefore, I do not find any substance in the contention of the respondents.
57. As set out above at this stage what the Court has to see is the averments in the election petition and nothing else. It has to be assumed to be true. Then we have to find out whether it discloses a cause of action or a triable issue as such. Viewed from that angle the aforesaid averments in paragraphs 8 to 10 of the election petition discloses a cause of action or a triable issue and, therefore, a case for rejection of the election petition under Order VII Rule 11 is not made out.
58. Hence, I pass the following order: