K.S. Hegde, J.
1. The appellant before us was the respondent in Miscellaneous Case No. 54 of 1956 on the file of the Subordinate Judge, Mysore, who tried this case as Election Commissioner under Section 20 of the Mysore Town Municipalities Act, 1551 (Act XXII of 1951). The said petition was filed by the respondents who claimed to be persons qualified to vote at the election held on 8-3-1956 to the Saligrama Town Municipality. The respondent in that petition and the appellant herein was declared elected to the VIIth Division of the said Municipality. The election was duly notified in the Mysore Gazette on 10-5-1956.
2. The validity of the election of the appellant was challenged on as many as 7 grounds. The learned Election Commissioner rejected 6 out of the 7 grounds urged but set aside the election on the ground that the appellant was riot duly qualified to be a voter and as such could not validly offer himself as a candidate m the said election. The appellant questions the correctness of this decision. From the arguments advanced in the course of the hearing three points emerge for consideration:
(1) Whether on the facts found by the learned Election Commissioner it is established that the appellant was not duly qualified to be a voter for want of necessary residential qualification as required by Section 12(2) of the Mysore Town Municipalities Act which will hereinafter be called the Act.
(2) Is the electoral roll as finally published final and conclusive, and not open for examination and scrutiny by the Election Commissioner.
(3) Whether on a proper reading of Section 14 and Section 20 of the Act, the only grounds on which an election could be set aside by the Election Commissioner are those mentioned in Section 20(4) of the Act.
3. The appellant contends before us that the findings of the Commissioner are not sufficient to hold that he did not possess the residential qualification required by Section 12(2) of the Act to be enrolled as a voter in Exhibit P-6. Section 12(2) of the Act is as follows:
'No person shall be included in such electoral roll as qualified to vote at such election unless he has resided in such division for one hundred and eighty days in the aggregate in the official year preceding' that in which the electoral roll is published,' (the underlining (here into ' ' is mine).
The words 'Official year' are defined in Section 3(14) as meaning the year commencing on the 1st day of April. We have to consider whether the findings of the learned Election Commissioner are sufficient to come to the conclusion that the appellant had not resided in the division in question for 180 days in the aggregate in the official year preceding that in which the electoral roll is published.
Nowhere in his order the learned Election Commissioner comes to the conclusion as to what exactly is the official year preceding nor does he arrive at the conclusion that the appellant had not resided in the division for 180 days in the aggregate in the said year. The learned Election Commissioner never directed his enquiry to these questions. On a reading of the order, it is clear that the oral evidence adduced by the respondents in this appeal did not commend itself to the learned Election Commissioner but he based his conclusions mainly on the documents produced before him. From these documents his conclusions are as follows:
'The above documentary evidence unmistakably indicates that the respondent is in fact residing at Hosa Agrahara long prior to the relevant period'.
This finding is certainly insufficient to hold that the appellant was not residing in the division in question for 180 days in the aggregate in the official year preceding that in which the electoral roll is published. It is not impossible for a person to reside in more places than one. More than that what is required to be considered is whether in the aggregate he resided in the division for 180 days in the official year preceding that in which the electoral roll is published.
The learned Election Commissioner had not placed before himself the requirements of the section and consequently he totally missed the point that he had to decide. No doubt in a general way he found that the appellant was not residing in the Saligrama Town during the relevant period. But there was no finding as to what was the relevant period. The appellant is not a stranger to this Town is clear from the fact that he was the President of the said Municipality during the term preceding to the election in dispute.
It is true that this Court cannot go into the correctness or otherwise of the finding of the learned Election Commissioner on a question of fact; but it is open to us to consider whether the finding arrived at is sufficient to meet the requirements of law. I have examined the documents produced in this case on which the learned Election Commissioner has placed reliance. These documents are insufficient to establish that at the material time the appellant did not reside in the division in question for the required period to be entitled to be enrolled in Exhibit P-6. Second Point:
4. The second contention of the appellant is that the learned Election Commissioner had no jurisdiction to consider the Question whether he had been properly enrolled as voter in Exhibit P-6 or not. According to him the electoral roll is not open to scrutiny by the Tribunal which enquires into the election petition. In order to properly appreciate this contention, it is necessary to place before ourselves certain provisions of the Act and the Rules framed thereunder.
Section 11 of the Act makes provision for carving out the territorial divisions of the Municipality. Section 12 lays down the qualification for enrolment in the electoral roll. Section 13 stipulates the period during which the electoral roll will be in operation. Section 12 reads as follows:
12(1) Every person of either sex who has attained the age of 21 years in the official year preceding that in which the electoral roll is published and who is not otherwise disqualified under this Act shall be included in the electoral roll as qualified to vote at the election for any of the divisions referred to in Sub-section (1) of Section 11.
(2) No person shall be included in such electoral roll as qualified to vote at such election unless he has resided in such division for one hundred and eighty days in the aggregate in the official year preceding that in which the electoral roll is published:
Provided that a person shall not be deemed to be disqualified under this sub-section if he is employed in the town municipality and non-residence in the division for the period aforesaid is due to his absence on leave out of the State. Explanation: For the purpose of this sub-section, no person shall be deemed to reside in more than one division. Section 13 reads as follows:
(1) When, in accordance with the rules made under Clause (b) of Sub-section (2) of Section 208, a list of voters has been prepared or revised, a copy thereof signed by such person as may be designated in this behalf in the rules aforesaid, shall be the municipal electoral roll. The electoral roll shall come into force from the 'date of its publication and shall continue in force for a period of four years or for such less period, if any, as the Government may by order direct in any case, and after the expiration of such period, a new electoral roll shall be published: Provided that:
(a) in the case of an election held after an electoral roll has ceased to have force and before the publication of the new electoral roll, the old electoral roll shall continue to operate as the electoral roll;
(b) at any time any person whose name is not in the electoral roll and who claims to have it enrolled may apply to the prescribed authority to enter his name therein and the prescribed authority shall enter in the electoral roll the name of every such person whose claim is proved to its satisfaction;
(c) the prescribed authority shall at any time expunge from the electoral roll the name of every person proved to its satisfaction to be dead or no longer to possess the qualification of a voter and may likewise correct any clerical error or omission in the electoral roll after affording the person affected an opportunity of being heard:
(d) no change in the electoral roll shall be made under provisions (b) and (c) within one month preceding the date fixed for an election.
(2) At every election of councillors, every person enrolled in the municipal electoral roll as for the time being in operation under subsection (1), shall be deemed to be entitled to vote, and every person not so enrolled shall be deemed to be not entitled to vote.
(3) A person shall not be qualified to be elected as councillor unless he is enrolled in the municipal electoral roll and a person who is already a councillor shall not be qualified to be a candidate at a bye-election held before his term of office as councillor, expires.
5. Section 14 sets out certain disqualifications for becoming a councillor. The disqualifications so enumerated make no reference to residential qualification. The only qualification laid down in the said Act is that he should have been enrolled as a voter in the Municipal Electoral Roll.
6. Rules have been framed providing for the preparation of the electoral rolls. The relevant rules are: Rule 6 to R. 10. These Rules have been published on 25-9-1951. Rule 6 lays down that the electoral roll shall be published at the Municipal Office, in the Taluk Office and in such other conspicuous places in each division as the Returning Officer may deem fit.
Rule 7 says that any person whose name is not entered in the roll or is entered in an incorrect place or manner or with incorrect particulars, or any person whose name is entered in the roll and who objects to the inclusion of his own name or the name of any other person in the roll, may prefer a claim or objections to the Returning Officer. Sub-rule (2) of rule 1 provides that all such claims and objections shall be made in writing and not later than three O' clock in the afternoon of the 14th day from the date of publication of the electoral roll; claims and objections received after that time shall be rejected by the Returning Officer. Sub-rule (3) provides for the production of the documents on which the claimant or objector relies. Rule 8 provides for enquiry into claims and objections. I shall quote in detail Rules 8 to 10 as they are important for the decision of this case.
Rule: 8(1) The Returning Officer shall hold a summary enquiry into the claims or objections preferred and shall record his decision in writing.
(2) For the purpose of the Returning Offi-cer's enquiry, the roll as published, shall be pre-sumed to be correct and complete until the con-contrary proved.(3) No party shall be represented by anylegal practitioner at any proceeding under theprovisions of this rule.
(9) The Returning Officer shall amend the roll in accordance with his decisions on all claims and objections. He may also on his own motion order the correction of any clerical error or printing mistakes therein.
(10) The orders passed by the Returning Officer under Rule 8 and 9 shall be final. The finality provided under Rule 10 does not merely relate to the decision arrived at by the Returning Officer on a summary enquiry into the claims and objections preferred; it includes all orders passed under Rule 8 and 9.
7. In the light of the above provisions we have to consider whether the Election Tribunal has jurisdiction to go behind the electoral roll and decide whether the particular voter has been validly enrolled or not.
8. The findings of the learned Election Commissioner on this point are lacking in clarity. He says 'that so far as this aspect is concerned, even at the outset it can safely be stated that according to law on the point when once the name of a person is on the roll and the Returning Officer has accepted it there could be no revision by him or any other authority so far as the said inclusion is concerned.
In other words the decision of the Returning Officer with regard to the inclusion of the name of the person in the concerned voters' list has to be deemed as final and conclusive. The authorities even go to the extent of pointing out that even in cases where there is improper acceptance of the nomination of the candidate, the inclusion of his name in the electoral roll that by itself will not be sufficient to make the election void on the said ground.
But in the present case it is contended that the respondent has a fundamental disability to stand as a candidate for the election that is, on account of his non-residence in the locality.' From the foregoing I take it that the learned Election Commissioner opines that though the electoral roll qua electoral roll is final and conclusive yet the person who intends to be a candidate should possess in addition to his name being in the electoral roll the residential qualification required by the Act. If this is the view of the learned Election Commissioner, it is certainly incorrect.
The only qualification that is required by the Act and the Rules framed thereunder is the one laid clown in Section 13(3) i.e. to be enrolled in the Municipal Electoral Roll. The want of residential Qualification is not made a disqualification under Section 14 of the Act. Hence if the electoral roll is final qua electoral roll and if the appellant's name has been entered in that roll rightly or wrongly, he could be duly nominated as a candidate and he is qualified to be elected as councillor unless he possesses or incurs any of the disqualifications set out in Section 14 of the Act.
9. The learned Election Commissioner's view that the Election Tribunal has jurisdiction to examine the correctness or otherwise of the Electoral Roll for the purpose of deciding whether the person is duly nominated or not is unsustainable. From the scheme of the Act and Rules as set out hereinabove, it is clear that there are two clear stages in an election proceeding.
First there is the preparation of the electoral roll. On a proper reading of Sections 12 to 14 and Rules 6 to 10 it is clear that the Legislature intended that the preparation of the electoral roll should be made final and conclusive before the elections are held. The second stage is the stage of filing nominations and holding of the elections. Jurisdiction of the Election Tribunal at best extends to the consideration of the validity or otherwise (a) of the acceptance or rejection of the nomination and (b) of the holding of the election. It does not extend to a consideration of the correctness or otherwise of the electoral roll.
10. Rule 10 is not happily worded. It would have been better to 'state that the electoral roll finally published is final and conclusive. But I have no doubt in my mind that this was the intention of the Legislature. The Act and the Rules that we are called upon to consider bear substantial resemblance to the corresponding Acts and Rules in the other States. Decisions under those Acts have also taken the view that the correctness of the electoral roll does not come up for consideration in an election petition.
11. On behalf of the respondents reliance has been placed on a number of decisions to show that the Election Tribunal can go behind the electoral rolls and examine its correctness. Before I consider these decisions it is necessary to emphasize that in an election petition the parties are not agitating a common law right nor is it an action in equity.
The rights of the parties are those conferred by the concerned statutes, nothing more or nothing less. Hence cases arising under some what different statutes will not be of substantial assistance unless the relevant provisions are in pari materia with the provisions with which we are concerned.
12. Reliance was placed on the decision of the Supreme Court in the case reported in Durga Shankar Mehta v. Raghuraj Singh, : 1SCR267 (A). This case was cited as an authority for the proposition that the Election Tribunal ought to consider whether the candidate nominated possessed the qualification required by the statute.
In that case their Lordships were considering the scope of Section 100 (2) (c) of the Representation of the People Act. They came to the conclusion that as per that section the possessing of the qualification prescribed by the Constitution is a necessary pre-requisites otherwise the election is liable to be set aside. But no such qualification is prescribed by the Act nor is there any provision in the Act or the Rules corresponding to Section 100(2) (c). Hence the decision in the said case is of no assistance to the respondents.
13. The next case on which reliance was placed by the learned Advocate for the respondent is the case of Vinayak Vasudeo v. Gopal Chimnaji, AIR 1938 Bom 377 (B). But the relevant provisions of the Bombay Local Boards Act are somewhat different. His Lordship in his judgment has clearly brought out the distinguishable features. His Lordship at page 380 says:
'It has been conceded by the learned Counsel on behalf of the appellant that there is no express provision in this or any other Section of the Act according to which the names of the persons appearing in the list are to be treated as conclusive in the sense that they cannot be challenged after there has been a final publication of the list of voters; and it is contended that looking to the scheme of the Act as a whole, that must be the intention of the Legislature. All that I can say is that, even if that was the intention of the Legislature, the words of the relevant Sections from which alone it is to be gathered, are entirely inadequate to convey such intention, and that it could have been positively expressed by the provision, as we find in some other Acts relating to elections of public bodies, that once the final list of voters was published after the objections are duly heard, it is to be treated as final and conclusive, and that it was not open to any person to challenge it thereafter. But I do not find any such intention even by implication in these Sections.'
In my judgment, the provisions of the Mysore Town Municipalities Act do afford material to come to the conclusion that the Legislature intended the list to be final and conclusive.
14. Both the lower Court as well as the learned counsel for the respondent placed certain reliance on the decision of the Election Tribunal in the case of Sir K.G.M. Faroqui v. Mohammad Habib Ullah, as reported in 2 Dhobia's Indian Election Cases 24 (C). This case does not help the respondent. The Tribunal in that case held that one of the qualifications required by a candidate is that he should be entitled to vote. That was the required qualification. The Tribunal interpreted these words 'as being lawfully entitled to vote'.
In the present case the only qualification required as I have said before is that the candldate's name should be in the Electoral roll. Each case will have to be decided on the basis of the relevant statute. The conclusion that I have arrived at though based on the relevant provisions of the Act and the Rules framed thereunder, find support from the decision of the Madras High Court in case reported in R.V. Palanisami Pillai v. R. Srinivasarangachariar, AIR 1925 Mad 160 (D) and of the Nagpur High Court in the case reported in Vithaldas Kunwarji v. Sadanand, AIR 1957 Nag 63 (E).
15. It is urged on behalf of the appellant that on a proper reading of Section 14 and Section 20 of the Act the only ground on which the election can be set aside by the Election Commissioner is that mentioned in Section 20 (4) of the Act. The arguments proceed thus: Section 14 (1) enumerates disqualifications which debar a person from seeking election. Section 14 (2) details the disqualifications which may be incurred during the terms for which the candidate has been elected or appointed. Section 14(1) and (2) further provide that whether a person is disqualified from seeking election or incurs disqualification after election his seat shall be either deemed to be vacant or shall become vacant as the case may be.
Section 14 (3) requires that if any question or dispute arises whether a vacancy has occurred under this Section, the orders of the Government shall be final for the purpose of deciding such question or dispute. From the wording of this sub-section we are asked to conclude that all questions relating to the disqualifications are matters for determination by the Government under Sub-section (3) of Section 14 and none of them are matters for adjudication by the Tribunal enquiring under Section 20.
It is further contended that the Election Commissioner's jurisdiction is limited to enquiring into the corrupt practices set out under Section 20 (4). In support of this argument reliance is placed on the decision of the Supreme Court in the case Ravanna Subbanna v. G.S. Kaggeerappa, reported in : AIR1954SC653 (F).
In that case their Lordships had to consider the scope of Section 14 and Section 20 of the Act. Undoubtedly the observations of his Lordship B.K. Mukherjea J. (as he then was) is of great assistance to the appellant but it must not be overlooked that weighty as these observations are his Lordship very specifically said that it would not be necessary for him to give any final opinion on the relative scope of Section 14(3) and Section 20 (5).
On behalf of the respondents it is urged that though Sections 14 and 20 are not happily worded. Section 20(5) read with explanation confers on the Tribunal power to investigate into all disqualifications falling under Section 14 (1). The learned Counsel contends that the scope of Sub-section 3 of Section 14 must be limited to the disqualifications incurred under Sub-section (2) of Section (14) & should not be extended to disqualifications possessed under Sub-section (1) of Section 14.
Otherwise according to him Sub-section (5) of Section 20 would become meaningless. He relies on the decision of this High Court reported in Narasingappa v. Siddappa, AIR 1957 Mys 87 (G). Their Lordships in the said case consider-ed the respective scope of Section 14(3) and Section 20(5). They had before them the observations of their Lordships of the Supreme Court in Ravanna's case (F).
They held, that on reading of Sections 14 and 20 together the Election Commissioner has jurisdiction to investigation into the alleged disqualification falling under Section 14 (1). All that I need say is that the question is not free from difficulty and sooner the Legislature clarifies its intention the better it is.
16. In the light of my findings on points one and two this appeal is allowed and the order of the lower Court setting aside the election is reversed and the Election Petition is dismissed with cost throughout. (Advocate's fee Rs. 100).
Somnath Iyer, J.
17. I agree.
18. Appeal allowed.