Katragadda Rajagopalarao Vs. the Chief Election Commissioner Talaktora, New Delhi and ors. - Court Judgment

FACTS

Paras 1 to 6. The petitioner, a voter of the Vijayawada East Assembly Constituency which is delimited by the Delimitation Commission's Order, challenged the order of the Chief Election Commissioner purporting to exercise his authority under S. 21 of the Representation of the People Act, 1950, by which he directed the Electoral Registration Officer, Vijayawada, East Assembly Constitutency to delete parts 6, 7 and 8 of the electoral roll of Vijayawada East Assembly Constituency and to add the same to the electoral rolls of the Vijayawada West Assembly Constitutency. The order of the Delimitation Commission made it clear that the area in question to which parts 6, 7 and 8 of the electoral roll related never formed part of the East Assembly Constituency but formed part of the West Assembly Constitutency. The Election Commission was thus rectifying the electoral roll to make it conform to the order of the Delimitation Commission. The impugned order was challenged on grounds that the Election Commission could not, even in exercise of the power under S. 21(3) of the Representation of the People Act, alter the electoral rolls once they became final upon compliance with all the requirements of law as to publication in official Gazette, etc. that the petitioner and the other voters in general had not been heard before making the order and that the order lacked bona fides.

P. Jaganmohan Reddy, C.J.

7. We may before dealing with the question of jurisdiction state at once that the burden is upon the petitioner to show that locality No. 21 was included in Mutya-lampadu colony, which is said to have been shown in the plan used by the Delimitation Commission. That plan has not been produced. The averment that at the time when the Delimitation Commission had called for objections, the Congress Party had objected to the inclusion of this colony, has also not been substantiated. The petitioner in his affidavit stated that, he merely understood it to be so. That allegation, however, has been denied by the 1st respondent. The further allegation that the principles of natural justice had not been complied with proceeds on two assumptions, firstly, that the petitioner was not given any hearing; and secondly, that all the voters in that area had not been heard before their names were removed from Vijavawada East Constituency and tacked on the Viiayawada West Constituency. In so far as the first allegation it concerned, we find the following proceedings drawn up by the Chief Election Commissioner, the 1st respondent.

'I have inquired into this question personally at Vijayawada, seen the spot, heard both Dr. Chalapathi Rao and Shri K, Raja-gopala Rao, and ascertained facts from the former Municipal Commissioner (now Special Officer), the Collector and the local census officials. I have recorded an order which is placed below, It will be communicated to E. R. O, for immediate action.

Copy also to (1) The C. E. O.. A. P. (ii) Collector, Krishna, (iii) Dr. Chalapathi Rao, (iv) Shri K. Rajagopala Rao, for information.'

It cannot, therefore, be said that the petitioner was not heard.

8. In respect of the second objection, in our view, it is based on the assumption that the revision is being made under those provisions of the Act of 1950 which are to be invoked when the electoral roll has to be revised by deleting or adding names of voters who are or have not been resident in that constituency. Those provisions, it Is contended by Mr. K. Ramchandra Rao and by Mr. K. Madhava Reddy, for respondents 1 to 3, are not applicable to a case of this nature where the Election Commission has ascertained whether or not a particular area is included in a part of the census locality which has been included in the Vijavawada East Constituency. It is true that if the Delimitation Commission has in delimiting the constituency referred to the census localities, the question would arise as to what it meant by that locality. If a particular area is not part of a census locality, which is included in the constituency, the action of the Electoral Registration Officer in preparing the roll of that constituency by including something which is not in it would also be without jurisdiction. The question would be whether the Election Commission could, in exercise of the powers of superintendence, direction and control, vested in it under Article 324 of the Constitution as also Section 21(3) of the Act of 1950 could correct it or direct the Electoral Registration Officer to bring it in conformity with the orders of the Delimitation Commission.

9. Before we deal with this aspect of the matter, it is necessary to see what in fact the impugned order purported to do. The question posed in that order is 'Whether an area locally known as Mutyalampadu colony falls within the Vijavawada East Assembly constituency or the Vijavawada West Assembly constituency, as delimited by the Delimitation Commission by its order No. 3 made and published on the 3rd July, 1965.' After setting out well nigh what has already been noticed as stated in the counter of the first respondent, it was stated that in view of the misconception by the Electoral Registration Officer of the factual position of the two constituencies in respect of locality No. 21, the following directions were given under section 21(3) of the Act of 1950:--

(1) Parts 6, 7 and 8 of the electoral roll for Viiayawada East Assembly constituency shall be removed from that roll and the remaining parts thereof shall form the electoral roll of the said constituency

(2) The said parts shall be included in the electoral roll for Viiayawada West Assembly constituency, placed immediately before the last part of that roll pertaining to service voters, and given suitable part numbers and the roll as so made up shall form the electoral roll for the said constituency.

(3) Both the rolls as so revised shall be published in the manner specified in R 22 (1) (b) of the Registration of Electors Rules, 1960.

(4) On such publication the rolls so revised shall be deemed to be respectively the rolls for the said constituencies.

10. That Mokhasa Mutyalampadu of Vtjayawada taluk did not form part of the census locality 21 cannot be gainsaid and nothing has been produced to show that this is not so or that it forms part of that census locality. In the letter, dated 12th January, 1961, the Superintendent of Censul Operations, Andhra Pradesh, informed the Collector of Krishna, that it had since been decided to treat the area of Mokhasa Mutya-lapadu, bearing Code No. 81 (falling outside the Vijayawada Municipality) as an independent urban unit with location code No.II for 1961 Census to which Code No. 81 (Rural) Mokhasa Mutyalampadu (non-urban area) had been assigned in the list of location code number of Vijavawada taluk. It was also stated that under the slum clearance programme a large township was fast corning up in that area and hence the decision to treat it as an urban unit; and that pending issue of formal amendment of Circular No. 4, it might be treated as an independent urban unit, with Code No. II for 1961 census; that in the list of location code numbers of Vijavawada taluk, changes set out therein might be made and the relevant corrections carried out in the taluk map; and that a tracing of the urban unit might be sent to hit office for making necessary corrections in the taluk map available in the office.

11. It is thus clear that in the 1961 census a portion of the Mokhasa Mutyalampadu was included in the Viiayawada municipality, Code No, I, and the remaining portion, urban unit Code No. 2, which is Mokhasa Mutyalampadu colony, was outside, the Vijavawada Municipality and was included in urban unit 2.

12. It is indisputable that for the purpose of Article 81 of the Constitution, not mort than 500 members have to be chosen to the House of the People by direct election from territorial constituencies in the States, and each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it is, so far as practicable, the same throughout the State; and the expression, population for the purposes of Clause (2) of Article 81 means the population as ascertained at the last preceding census of which the relevant figures have been published Similarly for election to Legislative Assemblies of the States. Clause (2) of Article 170, read with its explanation, also gives the expression 'population' the same meaning as that given in Clause (3) of Article 81. The Delimitation Commission had to divide the territorial constituencies according to the population in the preceding census. The Census Commissioners and Superintendents, under the Census Act, divided Vijavawada Municipality into 41 census localities, which are the localities which the Delimitation Commission had to take into consideration in fixing the territorial constituencies for Vijayawada East and Vijayawada West, and in doing so, it could not be said that which was not included in that census locality was included by it. If the Electoral Registration Officer by mistake or by misconception prepared electoral rolls for the Vijavawada East Constituency by Including an area in census locality 21, which was not included in it, he certainly exceeded the jurisdiction vested in him because he could not expand or restrict an area delimited by the Delimitation Commission: If, in fact, he commits such a mistake or acts in excess of his jurisdiction, which is the authority that can correct him or give him directions?

13. Mr, Chowdary contends that neither the Election Commissioner nor the Election Commission has any jurisdiction to correct mistakes other than clerical mistakes or to give directions to the Electoral Registration Officer, who alone has been vested with jurisdiction to prepare, revise and correct all electoral rolls in the State under the Representation of the People Act. 1950. The manner in which the preparation, revision and correction of the electrol rolls has to be effected, is, according to him, contained in Sections 14. 15, 17. 18 and 19 of the Act of 1950 and Rule 10 of the Registration of Electors Rules, 1960. The proceedings for preparing revising and correcting the work is set out in the rules which also contain provisions for lodging claims and objections, rejection or acceptance of those claims and objections, issuing of notices for hearing claims and objections, inquiry into claims and objections and including of names inadvertently omitted and the final publication of the rolls.

These provisions are contained in Rules 11 to 22 of the Registration of Electors Rules, 1960. Rule 23 of those rules provides for appeals from orders deciding claims and objections. Under R 24, if any constituency is delimited anew in accordance with law and it is necessary urgently to prepare the roll for such constituency, the Election Commission may direct that it shall be prepared (a) by putting together the rolls of such of the Existing constituencies or parts thereof as are comprised within the new constituency and (b) by making appropriate alterations in the arrangement, serial numbering and headings of the rolls so compiled. Sub-rule (2) of Rule 24 provides that the roll so prepared shall be published in the manner specified in Rule 22 and shall, on such publication, be the electoral roll for the new constituency.

14. By a reference to these rules Mr. Chowdary submits that there is no other procedure except that which relates to the correction of names of persons not included or wrongly included in the electoral rolls pre-pared by the Electoral Registration Officer, pursuant to the order of the Delimitation Commission. Mr. Ramarhandra Rao and Mr. Madhavareddy on the other hand contend that Rr. 5 to 25 of the Registration of Electors Rules, 1960 deal with the power of the various Electoral Officers for the preparation of Electoral rolls, and concern the right of individuals to have the electoral roll rectified. They also deal with the annual revision of the rolls and generally to revise them as and when that becomes necessary, where for instance, persons on the rolls are dead or have migrated to other constituencies registered as voters, etc. In our view, this contention has force. Article 324, and Section 21(3) of the Representation of the people Act, 1950 enacted pursuant to the power vested in Parliament under Article 327, vest in the Election Commission the power of superintendence, direction and control of the preparation of the electoral rolls.

Article 324 and Section 21 may now be read:

Art, 324: '(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct, of, all elections to Parliament and to the Legislatures of every State and of elections to the offices of President and Vice-president held under this Constitution including the appointment of election tribunal for the decision of doubts and disputes arising out of or in connection with elections to Parliament and to the Legislatures of States shall be vested in a Commission (Referred to in this Constitution as the Election Commission)'

Section 21: (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.

(2) The said electoral roll-

(a) Shall, unless otherwise directed by the Election Commission for reasons to be recorded in writing, be revised in the prescribed manner by reference to the qualifying date-

(i) before each general election to the House of the People or to the Legislative Assembly of a State; and

(ii) before each bye-election to fill a causal vacancy in a seat allotted to the constituency; and

(b) shall be revised in any year in the prescribed manner by reference to the qualifying date if such revision has been directed by the Election Commission;

Provided that if the electoral roll is not revised as aforesaid, the validity or continued operation of the said electoral roll shall not thereby be affected.

(3) Notwithstanding anything contained in Sub-section (2), the Election Commission may at any time, for reasons to be recorded, direct a special revision of the electoral roll for any constituency or part of a constituency In such manner as it may think fit;

Provided that subject to the other provisions of this Act, the electoral roll for the constituency, as in force at the time of the issue of any such direction, shall continue to be in force until the completion of the special revision so directed.'

It will be observed from these provisions that apart from Section 21(3), Clause (I) of Article 324 itself vests the power of general superintendence, direction and control of the preparation of the electoral rolls for all elections, in the Election Commission. Sub-section (3) of Section 21 merely saves that power and vests in the Election Commission notwithstanding anything contained in Sub-section (2) of Section 21, the power to direct, for reasons to be recorded, a special revision of the electoral rolls in such manner as it may think fit. It may be stated that even Sub-section (2) under which the power of revision has been vested, unless otherwise directed by the Election Commission, saves the power of superintendence of the Election Commission. Similarly, Section 15 provides that there shall be an electoral roll which shall be prepared in accordance with the provisions of that Act under the superintendence, direction and control of the Election Commission. Section 13-A(2) also provides that subject to the superintendence, direction and control of the Election Commission, the Chief Electoral Officer shall supervise the preparation, revision and correction of all electoral rolls in the State under that Act.

15. It is clear from these provisions that the powers conferred under the Act are in aid of the power of superintendence, direction and control conferred upon the Election Commission under Article 324. In our view, Section 21(3) read with Article 324 confers ample jurisdiction on the Election Commission to direct e special revision of the electoral roll for any constituency or part of a constituency, not necessarily confined to the procedure for the revision and caution contained in the other provisions of the Act or under the rules made thereunder. This is a special power which the Election Commission can exercise under the inherent powers conferred on it by Article 324 of the Constitution.

We may here refer to the observations of Ramaswamy. J., (as he then was) in Ramlaksman v. Election Commission, (1953) 7 ELR 364 (Pat) dealing with the contention that the provisions in R. 20(2) of the Representation of the People (Preparation of Electoral rolls) Rules, 1950 imposes something in the nature of tax and Parliament has no authority under Article 327 to delegate a provision of that character which involves a matter of principle. At page 369, after referring to Arts 324 and 327 of the Constitution the learned Judge observed:

'It it clear, therefore, that the Parliament has legislative authority to regulate all matters relating to elections including the preparation of electoral rolls, delimitation of the constitutencies and the like. Similarly, the Election Commission has executive authority of superintendence, direction and control of the preparation of the electoral rolls and the conduct of all elections. In the context of these provisions Section 25 of the Representation of the People Act (1050), must be examined. This section relates to revision or correction of electoral rolls in special cases and it authorises the Election Commission for reasons to be recorded in writing to direct revision in the prescribed manner of the electoral roll of any constituency.

If Section 25 of the Representation of the People Act is read against the setting of Arts. 224 and 227 of the Constitution (obviously a mistake for Arts. 325 and 327) it is clear that the Election Commission has extensive authority to direct and control the preparation of the electoral roll after the final publication in special cases'.

It may be stated that Section 25(a) before its repeal contained a similar provision as Section 21(3), though the latter is in much wider terms, in that it gives full scope to the powers of superintendence vested in the Election Commission under Article 324 by empowering it to direct a special revision of the electoral rolls in such manner as it may think fit, the words 'in such manner as it may think fit' not finding a place in Section 25(a).

16. Mr. Chowdary however insists that under Section 21(3) the impugned order cannot be made because It speaks of a direction to be given by the Election Commission, and that direction can only be given to the Electoral Registration Officer or the Chief Electoral Officer, who has to act in a particular manner under the provisions of the Act and not otherwise. But this argument omits to give full force to the words 'In such manner as it may think fit', which gives power to direct not only the person who has to make the special revision, but also the manner in which it should be done. In exercise of this power, the Election Commission can therefore, direct the Chief Electoral Officer to delete certain parts of the electoral roll and to republish them bringing it in conformity with the order of the Delimitation Commission.

17. It is again contended that any such action by the Election Commission would contravene the principles of natural Justice, in that the voters who are affected by the deletion of their area have not been given a chance to make their representations. This, argument, in our view, has no basis, because the Chief Election Commissioner did hear the objection of the petitioner, and in so far as the Individual electors are concerned, their right to vote has not been taken away; only they have been assigned to the electoral roll of a constituency to which they belong under the orders of the Delimitation Commission. In Chinna Malla Reddi v. Revenue Divisional Officer, (1953-54) 9 ELR 361 (Mad), Balakrishna Ayyar, J., dealing with the objection taken for the exclusion of 127 names from the electoral roll, on the ground that they were not informed in any manner of the date and place of hearing, observed at page 368:

'Under this rule (Rule 14 (2) of the rules framed under the Representation of the People Act 1950) where the Revision Authority is prima facie satisfied that an objection to the inclusion of a name is valid it may order that name to be removed. Some circumstances in which a Revision Authority would be justified in saying that it is prima facie satisfied that a name should be removed at once occur to the mind. Thus, for instance, by looking into the death register maintained in relation to the area it may be found that a person whose name is on the electoral roll is dead, or again, if the person is a Government servant who it is known has been transferred out of the place long ago. These are only two instances, and obviously it would be impossible to enumerate all the circumstances which would justify a Revising Authority in saying that it was prima facie satisfied about the validity of the objection.'

With great respect, these observations are in Consonance with our own view. As we have said earlier there is no evidence before us to establish that any objections were taken at the time of the public hearing by the Election Commission that Mokhase Mutya-lamoadu Colony is not part of Vijayawada West but Vijayawada East. As such it cannot be urged that the names of the voters are deleted from that constituency and included in another, contrary to the specific inclusion of the area of the colony in Vijayawada East. Therefore, the further question that Section 21(3) is ultra vires Article 14 has also no validity.

18. It is also contended by Mr. Chaw-dary that the impugned order is not made by the Election Commission but by the Chief Election Commissioner. It is however not denied that the Election Commission comprises of only one member, namely, the Chief Election Commissioner. In fact, that whole assumption throughout in paragraph 6 the affidavit of the petitioner is that it is the Election Commission that has passed the impugned order-vide paragraphs 6 (e) and 6 (f), in the latter of which it is stated that the order of the Election Commission is not only totally without jurisdiction but also lacks bona fides, because it is made to benefit the candidate of the party in power. Even otherwise, the order of the Chief Election Commissioner must be taken to have been made by the Election Commission Inasmuch as he is the sole member of it. Even in cases where there is a specific provision in the Constitution, like Article 166 (I), which enjoins that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor, it has been held that this is not mandatory but only directory. Where orders do not appear to be made in the name of the Governor but by the Government or any officer authorised to make, it has been held not to be fatal. In Dattatraya Moreshwar v. The State of Bombay, : 1952CriLJ955 it was contended! that since the order of confirmation of the detention was not in proper legal form, in that it was not expressed to be made in the name of the Governor as required by Article 166 (I) of the Constitution, the detention order was illegal. Their Lordships of the Supreme Court. Pataniali Sastry, C. J., and Mukherjea, Das and Chandrasekhara Aiyar, JJ., held that an omission to make and authenticate an executive decision in the form mentioned in article 166 does not make the decision itself illegal, for the provisions of that article, are merely directory and not mandatory. Much more so, is the case were no such provision as Article 166 exists in respect of orders to be made by the Election Commission. The order passed by the sole member, viz., the Chief Election Commissioner, cannot be said to be illegal or not made by the Election Commission.

19. In the view we have taken, it is unnecessary to examine the other contentions, namely, whether Article 329(b) precludes this Court from entertaining this writ petition inasmuch as the process of election has already commenced. Nor is it necessary to canvass 'he position whether the contentions raised in the writ petition may form the subject matter of an election petition under Section 100 of the Representation of the People Article 195.

20. In the result, we hold that the impugned order does not suffer from any vice and has been validly passed in exercise of the powers conferred upon the Election Commission under Section 21(3), and consequently the writ petition is dismissed, but in the circumstances of the case without costs.