Mr. J. Robert Vs. Mr. Ram Jethmalani - Court Judgment

Excerpt:
representation of people act, 1950 (central act no. 43 of 1950) - sections 23 & 24: registration of electors rules, 1960 -rules 26 & 27 - order by authority with jurisdiction to include name of person in electoral roll in violation of law & order without jurisdiction distinguishable - order without jurisdiction alone honest, to be ignored - procedure for preparation of final electoral roll under section 21 & correction of entries and inclusion of name therein under section 22, distinct - appeal under section 24 read with rule 27 only remedy against wrong inclusion - 'any order' wide in import: restriction of right only to rejection of application for inclusion impermissible - any person having sufficient interest could prefer appeal, under section 24 against order of.....orderrama jois, j.1. in this writ petition the three petitioners have prayed for setting aside the order passed by the chief electoral officer, karnataka, dismissing their appeal presented under section 24 of the representation of the people act, 1950, read with rule 27 of the registration of electors rules 1960, against the order of the electoral registration officer, no. 84, shantinagar assembly constituency, bangalore, including the name of the first respondent in the voters' list of that constituency and have also sought for the issue of a writ of quo warranto determining the right of the first respondent to continue as a member of rajya sabha from the state of karnataka.2. the facts of the case, in brief, are these: in the first week of march 1988, the election commission of india.....

Judgment:
ORDER

Rama Jois, J.

1. In this Writ Petition the three petitioners have prayed for setting aside the order passed by the Chief Electoral Officer, Karnataka, dismissing their appeal presented under Section 24 of the Representation of the People Act, 1950, read with Rule 27 of the Registration of Electors Rules 1960, against the order of the Electoral Registration Officer, No. 84, Shantinagar Assembly Constituency, Bangalore, including the name of the first respondent in the voters' list of that constituency and have also sought for the issue of a Writ of Quo Warranto determining the right of the first respondent to continue as a Member of Rajya Sabha from the State of Karnataka.

2. The facts of the case, in brief, are these: In the first week of March 1988, the Election Commission of India announced the holding of elections to fill four seats to the Rajya Sabha from the State of Karnataka. The last date for nomination fixed was 15-3-1988. The election was scheduled to be held on 28-3-1988. As provided in Section 3 of the Representation of People Act 1951, a person is not eligible to be chosen as a representative of any State in the Council of States, namely, Rajya Sabha, unless he is an elector for a parliamentary constituency in that State. According to Section 13-D of the 1950 Act, the electoral roll of all the assembly constituencies included in a parliamentary constituency constitutes the electoral roll for the parliamentary constituency concerned. The first respondent being desirous of contesting in the election to the Council of State from this State, as he was not a voter in any of the parliamentary constituency, in this State made an application before the Electoral Registration Officer, No. 84, Shantinagar Assembly Constituency, Bangalore, under Section 23 of the Representation of People Act, 1950 ('the Act' for short), read with Rule 26 of the Registration of Electors Rules 1960 ('the Rules' for short), and his name was included in the voters' list on 15-3-1988, by the order of the Registration Officer. On the same day, he filed his nomination to fill a seat in the Rajya Sabha from Karnataka and in the election held on 28-3-1988 he was declared elected. There is no dispute that but for the inclusion of his name in the electoral roll of the assembly constituency in the State the first respondent was not eligible to be a candidate in the election to a seat in the Rajya Sabha from this State in view of Section 3 of the Representation of the People Act, 1951.

2A. The Writ Petitioners who are Voters in the Shantinagar Assembly Constituency, being aggrieved by the inclusion of the name of the first respondent in the electoral roll on the basis of which the acquired eligibility to contest in the election to Rajya Sabha from this State, filed an appeal before the Chief Electoral Officer under Section 24 of the Act read with Rule 27 of the Rules. The appeal was rejected by the Chief Electoral Officer on 30-3-1988 on the ground that the certified copy of the order of the Electoral Registration Officer containing the decision to include the name of the first respondent in the electoral roll, was not produced along with the Memorandum of appeal. Aggrieved by the said order, the petitioners preferred Writ Petition No. 7666 of 1988 to this Court. In the said Writ Petition, inter alia, the allegation made was that in fact the certified copy of the order of the Electoral Registration Officer had been produced along with the appeal and it was so stated in the appeal Memorandum itself and it was received by the Officer authorised to receive true same after scrutinising that the appeal was in order. The petitioners also alleged that before rejecting the appeal on the said ground, no opportunity was given to the appellants. After the said Writ Petition was heard for some time, the learned Counsel for the first respondent (fourth respondent in the said Writ Petition) submitted that he was agreeable for the remanding of the appeal to the Appellate Authority and for the disposal of the same on merits. The learned Counsel who appeared for the Appellate Authority also submitted that appropriate orders might be made by this Court in the light of the submission made by the learned Counsel for the first respondent. Accordingly, the Writ Petition was allowed. The relevant portion of the direction given in the said Writ Petition reads:

'(i) The Writ Petition is allowed.

(ii) The order passed by the second respondent dated 30-3-1988 (Annexure-B) is set aside;

(iii) The second respondent is directed to dispose of the appeal presented by the petitioners on merits, within four months from the date on which a copy of this order is furnished to the learned Counsel for the State.'

Thereaftar, the appeal was taken up for hearing by the Chief Electoral Officer and it was dismissed by order dated 5-1-1989.

3. In the appeal the appellant urged the following grounds:

(i) The first respondent made an application for inclusion of his name in the electoral roll of 84, Shantinagar Assembly Constituency on or about 13th or 14th March 1988, and the Electoral Registration Officer without complying with the requirements of Rule 26 of the Rules directed the inclusion of the name of the first respondent in the electoral roll in the constituency and the inclusion was therefore clearly illegal.

(ii) Though the application was liable to be rejected in limine, as non-judicial stamp of 10 paise was not affixed to the application, nor the said fee was remitted to the treasury and the challan was enclosed to the application as prescribed, the Electoral Registration Officer entertained the application illegally and directed the inclusion of the name of the first respondent in the voters' list and therefore the inclusion was liable to be set aside as having been in contravention of Rule 26 of the Rules.

(iii) The first respondent who was a permanent resident of Bombay and a voter in Colaba Constituency, had never lived in Bangalore City or in any part of Karnataka, and that No. 12, Brunton Road, Bangalore, given as the residence of the first respondent was a guest house owned by Indian Express group of companies and therefore he being not ordinarily resident of this State, his name could not have been included in the electoral roll.

4. The Counsel for the first respondent who appeared before the Chief Electoral Officer contended that the appeal was not maintainable. His contention was, under Section 24 of the Act read with Rule 27 of the Rules, an appeal was maintainable only against an order rejecting an application for inclusion and not against an order including the name of an applicant in the electoral roll. In support of this submission, the learned Counsel relied on the Judgment of the Gujarat High Court in the case of S.J. JHALA v. CHIEF ELECTORAL OFFICER, : AIR1969Guj292 in which the Gujarat High Court had taken the view that an appeal was not maintainable against inclusion. He also contended that the first respondent had become an ordinary resident of Bangalore and that he had made the application on 8-3-1988 itself and not on any subsequent date as alleged by the petitioners. There was, however, no controversy that the prescribed fee was not paid on the application for inclusion, either by affixing stamp or by depositing the amount in the Government Treasury and enclosing the challan.

5. The Appellate Authority, relying upon the Judgment of the Gujarat High Court in the case of S.J. Jhala accepted the contention of the first respondent that the appeal was not maintainable. However, it also considered the appeal on merits and rejected all the grounds urged by the petitioners.

(i) As regards the date of making the application,the Appellate Authority rejecting the contention heldthus:

'The first respondent had made his application under Section 23 of the Representation of People Act 1950 for inclusion of his name in the 84, Shantinagar Assembly Constituency on 8-3-1983. There is nothing on record to show that it was not presented on that date or that it was presented on 13th or 14th as alleged in the appeal.'(ii) As regards the contention that the procedure prescribed under Rule 26 of the Rules had not been followed, the Appellate Authority held that the procedure had been followed.

(iii) As regards the contention that as the prescribed fee was not paid on the application the application was liable to be rejected, the Appellate Authority rejected the said contention. The relevant portion of the order reads:

'As required by Section 25 of the Representation of People Act 1930 in Rule 26 of the Registration of Electors Rules 1960 a fee of ten paise has been prescribed, in respect of an application made under Section 23 of the said Act for inclusion of name in the electoral roll, which is to be paid along with the application. As contended by the applicants, this fee was not paid by the first respondent along with his application. However, this is not a mandatory provision but only a directory prevision, as the lay regulating inclusion of names in the electoral roll, on applications made under Section 23 does not provide for the consequence of nullification on failure to comply with the requirement of payment of fee of 10 paise, prescribed in Rule 26. Non-compliance of this provision will not therefore, invalidate the action of the second respondent in including the name of the first respondent in the electoral roll of 84, Shantinagar Assembly Constituency.'(iv) As regards the contention chat the first respondent was not an ordinary resident of Bangalore, the said contention was rejected by the Appellate Authority. The relevant portion of the order reads:'In his application dated 8-3-1988, addressed to the Electoral Registration Officer, 84, Shantinagar Assembly Constituency, the first respondent had mentioned the place ordinary residence as No. 12, Brunton Road, Bangalore. His claim was supported by another elector in that constituency as required by law. After making a spot enquiry, as per the directions of the second respondent, the Revenue Inspector of the Corporation of the City of Bangalore reported that the first respondent had been staying at No. 12, Brunton Road, as mentioned in his application. The Rules indicate that the Electoral Registration Officer has to satisfy himself that the applicant is ordinarily resident in the constituency and he had done so in this case. The first respondent had also made a request in his application that his name may be deleted from the electoral roll of Kolaba Assembly Constituency of Bombay where he was formerly a voter. In the circumstances, the first respondent has to be regarded as ordinarily resident at No. 12, Brunton Road, Bangalore, which falls within the limits of 84, Shantinagar Assembly Constituency.'

Thus, apart from holding that the appeal itself was not maintainable, the Chief Electoral Officer rejected all the grounds.

6. The learned Counsel for the petitioners, urged the following contentions:

(i) The view taken by the Appellate Authority that the appeal presented by the Writ Petitioners was not maintainable, is erroneous.

(ii) The view taken by the Appellate Authority that the fee prescribed for the application under Section 23 for the inclusion of the name in the electoral roll under Section 25 of the Act was not mandatory and therefore inclusion made entertaining an application though no prescribed fee was paid was not illegal, was erroneous.

(iii) The Appellate Authority ought to have held that inclusion of the name of the first respondent in the electoral roll pursuant to an application, which did not conform to the requirements of Section 24 of the Act and Rule 26 of the Rules was nonest.

(iv) The inclusion of the name of the first respondent in the electoral roll was nonest in law and therefore a Writ of Quo Warranto should be issued and the right of the first respondent to continue as a Member of the Rajya Sabha should be terminated.

(v) The finding recorded by the Appellate Authority that the application of the first respondent was made on 8-3-1988 itself and that he was an ordinary resident of Bangalore was perverse.

(vi) The finding recorded by the Appellate Authority that the procedure prescribed under Rule 26 of the Rules had been followed, was also erroneous.

7. The learned Counsel for the first respondent, at the cutset, submitted that when the Electoral Registration Officer being the Competent Authority had directed the inclusion of the name of the first respondent in the electoral roll and accordingly it was included, even on the assumption that Rule 26 of the Rules regarding affixing of stamp on the application or remitting the application fee into the treasury and enclosing the challan to the application was not complied with, the inclusion does not become nonest. He further submitted that as held by the Gujarat High Court in the case of Jhala the appeal of the petitioners was not maintainable and that decision was followed by the Appellate Authority In holding that the appeal of the appellant was liable to be dismissed in limine. In support of his contention that even if an application on which the fee prescribed under Rule 26 was not paid, could not have been entertained, once the application was entertained and the name of the first respondent was directed to be included, the inclusion does not become nonest and in support of this contention the learned Counsel relied on the Judgment of the Supreme Court in the case of B.M. RAMASWAMY v. B.M. KRISHNAMURTHY, : [1963]3SCR479 . The said case arose under the provisions of the Mysore Village Panchayats Act. By the provisions of that Act the relevant part of the electoral roll of the concerned Assembly Constituency prepared under the Act and the Rules was adopted as the electoral roll for the election of the Panchayat concerned. The appellant was a candidate at an election to a Panchayat and he was declared elected. In an Election Petition filed under the provisions of the Panchayat Act by the respondent in the appeal, his election was set aside by the election Court and in appeal this High Court held that though the name of the appellant had in fact been included in the electoral roll before he filed his nomination, the inclusion was made in violation of Rule 26 of the Rules and therefore the inclusion was to be ignored and on that basis his election was set aside. The matter was taken in appeal before the Supreme Court. In the said appeal, whereas the contention of the appellant therein was that the inclusion of his name was not nonest and therefore could not be a ground for setting aside his election in an election petition, the contention of the respondent was that the entry of a name in the electoral roll in violation of Rule 26 of the Rule was nonest and therefore the setting aside of his election on that ground by this Court was correct. The Supreme Court accepted the contention of the appellant therein and reversed the Judgment of this Court. The relevant portion of the Judgment reads:

'9. 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 25 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 the People Act 1950, no civil Court shall have jurisdiction to question the legality of any action taken by or under the authority of, the electoral Registration Officer. The terms of the Section are clear and the action of the Electoral Registration Officer including the name of the appellant in the electoral roll, though illegal, cannot be questioned in a civil Court; but it could be rectified only in the manner prescribed by law, i.e., by preferring an appeal under Rule 24 (SIC-27?) 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 difficult to say that the action of the Electoral Registration Officer is a nullity, He has admittedly jurisdiction to entertain the application for inclusion of the appellant's name in the electoral roll and take such action as he deems fit. The non-compliance with the procedure prescribed does not affect his jurisdiction, though it may render his action illegal. Such non-compliance cannot make the Officer's act nonest though his order may be liable to be set aside in appeal or by resorting to any other appropriate remedy.'

8. The above decision fully supports the contention of the learned Counsel for the respondent that the inclusion of the name of the first respondent; even if there was violation of Rule 26 in the process, does not become nonest. In the above decision the Supreme Court has clearly distinguished between an order made by an authority having jurisdiction to include the name of a person in the electoral roll in violation of law and an order made to the same effect without jurisdiction. It is only in the latter case the inclusion becomes honest, and it has to be ignored or disregarded. A clear illustration of this is available from the Judgment of the Supreme Court in NARENDRA v. MANIK RAO, : [1978]1SCR193 . In that case the Supreme Court held that after the last date and time fixed for an election to a Legislature till the election is over the Registration Officer has no jurisdiction to include any name in the electoral roll in view of the bar created by Section 23(3) of the Act and if done it has to be disregarded. Such an inclusion is therefore nonest. Hence the contention of the learned Counsel for the petitioner that the inclusion of the name of the first respondent in the electoral roll was honest has to be rejected. However, the decision in Ramaswamy on which the learned Counsel for the first respondent relied, furnishes answers to the other two questions arising for consideration in this case, which is favourable to the petitioners. They are:-

(1) An appeal under Rule 27 of the Rules read with Section 24 of the Act is maintainable against inclusion of a name in the electoral roll.

(2) Though the inclusion of a name in the electoral roll in violation of Rule 26 does not become nonest, it would be illegal and liable to be set aside in appeal.

In view of the aforesaid decision of the Supreme Court, the contention urged for the first respondent that the Appellate Authority was right in holding that the appeal of the petitioners was not maintainable before it against the inclusion of the name of the first respondent, has to be rejected and the contention of the learned Counsel for the petitioners that the appeal was maintainable has to be accepted.

9. Though in view of the decision of the Supreme Court in Ramaswamy's case it is unnecessary for us to consider the arguments of the learned Counsel regarding the maintainability of an appeal against inclusion, as the learned Counsel argued at great length, making reference to the provisions of the Act and the Rules, we consider it appropriate to deal with them.

10. The learned Counsel for the petitioners submitted that Section 24 of the Act expressly provides that an appeal lies to the Chief Electoral Officer from any order of Electoral Registration Officer under Section 22 or Section 23 of the Act. Having regard to the clear wording of the Section, it is impossible to interpret the Section as restricting the appeal only against rejection of an application made under Section 22 or 23 of the Act and not against the granting of application under Section 22 or Section 23. He submitted that the view taken by the Gujarat High Court was erroenous. Further, he pointed out that in the very Judgment the Gujarat High Court had also held that an appeal could be entertained even against Inclusion with the leave of the Appellate Authority and in the present case when the matter had come up in Writ Petition No. 7666 of 1988 the Appellate Authority had agreed to dispose of the appeal on merits and a direction to that effect was also issued by this Court and therefore it was not open for the Appellate Authority to hold that the appeal was not maintainable.

11. The learned Counsel for the first respondent, however, submitted that the view taken by the Gujarat High Court in the case of Jhala to the effect that an appeal under Section 24 of the Act was not maintainable against inclusion, was correct. He, however, does not dispute that in the very decision it was also held that an appeal could be filed under Section 24 of the Act to the appropriate authority even against inclusion, with the leave of the Appellate Authority. He also submitted that the direction issued by this Court in the earlier Writ Petition was to dispose of the appeal on merits and the merits included the question of maintainability of the appeal on any ground other than the one on which the appeal was rejected by an earlier order and which was set aside by this Court in the order made in W.P.No. 7666 of 1988.

12. We shall now proceed to make a brief survey of the relevant provisions of the Act and the Rules made under Section 28 of the Act. An analysis of the relevant provisions of the Act and the Rules would disclose that a clear-out distinction is made between:

(i) The procedure for preparation of the final electoral roll and its publication, and

(ii) the correction of entries in the final electoral roll and inclusion of names in the final electoral roll.

(i) AS regards the procedure for preparation of electoral roll, Section 21 of the Act provides that the electoral roll for each constituency shall be prepared in the prescribed manner with reference to the qualifying dates and shall come into force immediately upon its final Notification in accordance with the Rules made under the Act. Section 21(1) reads thus:

'21. PREPARATION AND REVISION OF ELECTORAL ROLLS - (1) The electoral roll for each constituency shall be prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the Rules made under this Act.'

Section 28 of the Act confers power on the Central Government to frame Rules. Section 28(2)(a) empowers the making of the Rules regarding the determination of 'ordinary residence' under Sub-section (7) of Section 20 of the Act which is a condition of eligibility for inclusion of name of any person in the electoral roll of any assembly constituency. Section 28(2)(aa) empowers the Central Government to make Rules regarding the particulars to be entered in the electoral roll. Clauses (b) to (g) of Section 28(2) empowers the Central Government to prescribe by Rules regarding the various steps to be taken in the preparation of the electoral roll and the final publication of the electoral rolls. Section 28(2)(h) of the Act empowers the Central Government to frame the Rules for the revision and correction of electoral rolls and the inclusion of names.

(ii) As regards the procedure for making correction of entries in the final electoral roll and deletion provision is made in Section 22 of the Act and for inclusion of names in the final electoral roll, provision is made in Section 23 of the Act. An appeal is provided against any order made under Section 22 or Section 23, under Section 24. Section 25 provides that the prescribed fee shall be paid on any application made under Section 22 or Section 23 or an appeal preferred under Section 24.

(iii) The Central Government has framed Rules under Section 28 of the Act called the Registration of Electors Rules, 1960, Rule 4 prescribes the form and language of the roll. Rule 5 prescribes that the roll shall be prepared in parts. Rule 6 provides that the names of the electors shall be included in the electoral roll as per the house numbers. Rule 7 requires that a person should give a declaration about his ordinary residence. Rule 8 requires furnishing of information about the occupants of dwelling houses. Rule 10 prescribes that a draft electoral roll shad be published and make it available for public inspection. Rule 11 requires giving further publicity to the draft rolls published. Rule 12 provides that every claim for inclusion in the electoral roll that is from persons whose names have not been included in the draft electoral roll published, should be lodged within 30 days from the data of publication of the draft roll and the proviso to that Rule empowers the Election Commission to extend the time for lodging such claims. Rule 13 provides that every claim shall be in Form No. 6 and every objection to the inclusion of the name shall be in Form 7. Rule 14 prescribes the manner of lodging claims and objections and Rule 16 prescribes the procedure to be followed in the preparation of the electoral roll, namely, disposal of every claim and objection. Rule 17 provides for rejection of claims and objections which are not filed within the prescribed period or in the prescribed manner. Rule 13 authorises the Registration Officer to pass orders accepting the claims and objections. Rule 19 provides for notice of hearing regarding claims and objections. Rule 20 authorises to inquire into the claims and objections and decide the same. Rule 21 empowers the Registration Officer to include the names inadvertently omitted and Rule 21A authorises the Registration Officer to delete the names included inadvertently or for any other good reason. Rule 22 provides for final publication of the roll. Rule 23 provides an appeal against the decision of the Registration Officer under Rules 20, 21 or 21A of the Rules. Rules 22(1) and (2) and Rule 23 reads:-

'22. FINAL PUBLICATION OF ROLL: (1) The Registration Officer shall thereafter -

(a) prepare a list of amendments to carry out his decisions under Rules 18, 20, 21 and 21A and to correct any clerical or printing errors or other inaccuracies subsequently discovered in the roll;

(b) publish the roll, together with the list of amendments, by making a complete copy thereof available for inspection and displaying a notice in Form 16 at his office; and

(c) subject to such general or special directions as may be given by the Election Commission supply, free of cost, two copies of the roll, as finally published, with the list of amendments, if any, to every political party for which a symbol has been exclusively reserved by the Election Commission.

(2) On such publication, the roll together with the list of amendments shall be the electoral roll of the constituency.

XXX XXX XXX23. APPEALS FROM