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Pandharinath Gyanoba Rao and ors. Vs. Manikrao Shamrao and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKarnataka High Court
Decided On
Case NumberElection Petns. Nos. 17, 19 and 23 of 1967
Judge
Reported inAIR1969Kant84; AIR1969Mys84
ActsRepresentation of the People Act, 1951 - Sections 100; Representation of the People Act, 1950 - Sections 23 and 30; Mysore Village Panchayat and Local Boards Act, 1959 - Sections 13; Mysore Village Panchayats and Taluk Boards Election Rules, 1959 - Rule 3; Representation of the People Rules, 1956 - Rule 26; Constitution of India - Articles 173, 226, 327 and 329
AppellantPandharinath Gyanoba Rao and ors.
RespondentManikrao Shamrao and ors.
Excerpt:
election - translation - section 100 of representation of the people act, 1951 - petition against result of elections in favour of respondents - petitioner failed to prove that on account of non-translation of electoral roll in kannada into marathi or on account of defects in marathi roll so prepared results of elections so far as respondent was concerned had been materially affected - petitioners failed to establish that under law translation of kannada voters list into marathi was necessary - further petitioners failed to prove improper refusal of votes and non-compliance of section 100 (1) (d) - petition dismissed. held see paras 43, 45, 56, 61 and 63. - indian registration act, 1908 [c.a. no. 16/1908] sections 17 & 49: [d.v. shylendrakumar,j] palu patti - requirement as to.....kalagate, j.1. the common issues raised in all the three petitions, namely e. p. 17, e. p. 19, and e. p. 23 of 1967 and which were tried together are issued iv(a), (b) and (c) in e. p. 17 of 1967 and issues nos. ii(a), (b) and (c) in e. p. 19 and 23 of 1967 respectively, issue no. iv(a), (b) and (c) read as follows:iv. (a) does the petitioner prove that it was necessary under law to prepare a translation of the electoral roll into marathi language? (b) does he further prove that the marathi roll so prepared suffered from the following two defects or either of them: (i) that the serial numbers in the marathi roll did not tally with the serial numbers in the kannada roll; and (ii) that several names contained in the kannada roll were omitted to be copied in the marathi roll? (c) does he.....
Judgment:

Kalagate, J.

1. The common issues raised in all the three petitions, namely E. P. 17, E. P. 19, and E. P. 23 of 1967 and which were tried together are issued IV(a), (b) and (c) in E. P. 17 of 1967 and issues Nos. II(a), (b) and (c) in E. P. 19 and 23 of 1967 respectively, Issue No. IV(a), (b) and (c) read as follows:

IV. (a) Does the petitioner prove that it was necessary under law to prepare a translation of the Electoral Roll into Marathi Language?

(b) Does he further prove that the Marathi Roll so prepared suffered from the following two defects or either of them:

(i) That the serial numbers in the Marathi Roll did not tally with the serial numbers in the Kannada Roll; and

(ii) that several names contained in the Kannada Roll were omitted to be copied in the Marathi Roll?

(c) Does he further prove that in consequence of the above, the result of the election so far as the respondent is concerned had been materially affected?

2. This issue was raised on the following allegations.

'The Election Commission of India enjoined that the Electoral rolls for the Aurad Assembly Constituency should be both in the Kannada and the Marathi languages. The Electoral Registration Officer, Aurad Constituency, has published in the electoral rolls in the two languages in such a way that the serial numbers of the electors in either list differed from the other and that some names of electors in the Marathi Roll were altogether dropped. The result was that thousands of the Marathi voters who had been supplied with the aid slips with their serial numbers as printed in the Marathi Roll were not given ballot papers. The number of electors to whom ballot papers were not issued on this ground is at least 10,000.'

This, it is stated has materially affected the result of the election of the respondent.

3. Issues Nos. II(a), (b), (c) in E. P. Nos. 19 and 23 of 1967 are similar and therefore, it is not necessary to state them. Nor is it necessary to state the allegations in E. P. Nos. 19 and 23 of 1967 since the are also similar.

4. On June 11, 1968, an additional issue was raised by common consent, and it s numbered as issue IV-A in E. P. 17 and II-A E. P. 19 and 23 f 1967. The said issue reads:

'IVA. Whether the grievance of the petitioner relating to the legality or correctness of the Marathi Electoral Rolls can be the basis of the election petition under Section 100(1)(d)(iv) of the Representation of the People Act 1951, and whether it is not barred under S. 30 of the Representation of the People Act, 1950?'

5. Therefore, broadly speaking the issues fall into two categories, viz., (1) issues as framed originally, and (2) the additional issue.

6. Evidence on these common issues was abducted both for the petitioners and the respondents in all the three petitions.

7. The additional issue was raised at the instance of the learned counsel for the respondents as, according to him, the grievance of the petitioners relating to the legality or the correctness of the Marathi Electoral Rolls cannot be the basis or ground of the election petition to have the election of the respondents declared void, under section 100(1)(d)(iv) of the Representation of the People Act, 1951, which will hereinafter be referred to as the R. P. Act, 1951. This issue falls into two parts, one falling under the provisions of the R. P. Act of 1951 and the other, under the provisions of the R. P. Act of 1950, since such a contention, it is stated, is barred under Section 30 of the said Act.

8. Mr. Albal, the learned counsel for the respondents contends that the legality or the correctness of the Marathi Electoral Rolls cannot be gone into by this Court since such an investigation is barred under section 30 of the R. P. Act of 1950. It provides that:

30. No Civil Court shall have jurisdiction--

(a) to entertain or adjudicate upon any question whether any person is or is not entitled to be registered in an electoral roll for a Constituency; or

(b) to question the legality of any action taken by or under the authority of an electoral registration Officer, or of any decision given by any authority appointed under this Act for the revision of any such roll.'

9. And this Court, according to the learned counsel, being a Civil court, its jurisdiction to adjudicate upon the legality or correctness of the electoral roll is barred. In support of that contention, Mr. Albal relied upon two decisions viz., (1) B. M. Ramaswamy v. B. M. Krishna Murthy, : [1963]3SCR479 , and (2) K. Sreeramulu v. K. Deviah, (1965) 1 Mys LJ 676.

10. In the case of B. M. Ramaswamy the dispute was in respect of an election to the Panchayat of Byyappanahalli from its first Constituency in the State of Mysore. The appellant and the second respondent were duty elected to the Panchayat, Respondent 1, therefore, filed an election petition under section 13 of the Mysore Village Panchayat and Local Boards Act, 1959, in the Court of the Second Munsiff, Bangalore, for a declaration that the appellant was not duly elected and for a further declaration that the first respondent was duly elected. The case of the first respondent as is relevant to the question under consideration was, that on the date fixed for the filling of nomination papers, the appellant's name was not in the authenticated list of voters published under Rule 3 clause (5) of the Mysore Village Panchayats and Taluk Boards Election Rules, 1959, and therefore, he was not entitled to file his nomination. The Second Munsiff held that the appellant's name was not included in the authenticated list of voters of the said Panchayat and on the finding, he set aside the election of the appellant and declared the first respondent to have been fully elected in his place.

11. The High Court, on appeal, agreed with the conclusion of the learned Second Munsiff, but on its own reasons. It held that though the name of the appellant was included in the electoral roll of the Legislative Constituency under Section 23 of the R. P. Act of 1950, it was so included in violation of Rule 26 of the Representation of the People Rules 1956, and, therefore, the said inclusion was void.

12. The matter was taken to the Supreme Court by special leave. Their Lordships of the Supreme Court set aside the Order of the High Court. They held that the non-compliance with the procedure prescribed for inclusion of the appellant's name does not affect jurisdiction of the Electoral Registration Officer, though such an inclusion may render his action illegal. Such non-compliance cannot make the officer's act honest, though his order may be liable to be set aside in appeal or by resorting to any other appropriate remedy. They, while stating that the inclusion of the name of the appellant in the electoral roll was clearly illegal, observed:

'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 in 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 R. 24 of the Rules by resorting to any other appropriate remedy.'

It was the observation that reliance is placed by Mr. Albal for the respondents to contend that though the Second Munsiff was empowered to try the election case under section 13 of the Mysore Village Panchayat and Local Boards Act 1959, he was really trying the case as a Tribunal since Section 13 of the said Act authorises the Munsiff to exercise all or any of the powers of the Civil Court. Therefore, though the Munsiff was trying the election case as a Tribunal, was to exercise the powers of a Civil Court, yet, the Supreme Court observed that the Munsiff has no jurisdiction to question the legality of the action taken by the electoral registration officer. This decision, according to the learned counsel for the respondents, is an authority for the proposition that the Munsiff who was trying the election case was an Election Tribunal which was stated to have no jurisdiction to question the legality of the action taken by the electoral registration officer. On the analogy, the learned counsel submits that this Court, though is an authority under the Constitution, trying the election petition, its jurisdiction is equally barred under Section 30 of the R. P. Act, 1950 to determine the legality of the correctness of the action taken by the electoral registration officer, in respect of electoral rolls.

13. The decision was followed by this Court in the second case stated above viz. K. Sriramulu 1965-1 Mys LJ 676. In that case, this Court was dealing in an appeal from the decision of the Election Tribunal. The dispute related to the election of a member to the Mysore Legislative Assembly. The petitioner challenged the validity of the election on various grounds.

14. In the appeal, one of the contentions was that the election is void as the same was held on the basis of defective electoral roll in so far as that roll did not include in it 465 votes of voters residing in the Pit Colony which is a part of the Malleswaram constituency. Thus, the contention was that the election was void as the electoral roll was defective. This court held that in an election petition the correctness of the electoral roll cannot be gone into. It observed that the right to challenge the validity of an election is a statutory right and not a common law right or a right in equity. That right being a conferred right, its scope is limited by the contents of the relevant statutory provision. The petitioner relied on Section 100(1)(d)(iv) of the R. P. Act of 1951 in support of the contention that the election held was void. It was pointed out that there was no complaint that any of the provisions of the Constitution have been contravened. It was also not said either that any of the provisions of the R. P. Act of 1951 or any rule or order made under that Act have been contravened. It may be remembered that the R. P. Act of 1951 does not deal with the preparation of electoral rolls. The electoral roll was prepared under the provisions of the Representation of the People Act, 1950 to be hereinafter referred to as the 1950 Act. The grievance of the petitioner is that certain provisions of 1950 Act and several of the Rules framed thereunder have been contravened. Assuming without deciding that this grievance is genuine, even then, that grievance cannot be made the basis of an election petition under Section 100(1)(d)(iv) of the 1951 Act. Support to this view is found from the decision of the Supreme Court in AIR 1863 SC 458.

15. Thus, it is stated that this Court relying on the decision of the Supreme Court in Ramaswami's case, : [1963]3SCR479 took the view that the legality or the correctness of the electoral roll cannot be the ground to declare the election void. Mr. Albal therefore, submits that these two decisions clearly support the view that Section 30 of the R. P. Act of 1950 bars the jurisdiction of this Court to consider the legality or otherwise of the electoral rolls.

16. Then as to the first part of the issue, it is submitted by Mr. Albal that the petitioner's grievance relating to the legality of the electoral rolls cannot be the basis of the election petition to have the election declared void under Section 100(1)(d)(iv) of the R. P. Act of 1951 which reads as follows:

'100(1)(d): that the result of the election, in so far as it concerns a returned candidate, has been materially affected--

(iv) by any non-compliance with the provisions of the Constitution or of this Act or any rules or orders made under this Act.'

17. he points out that it is not the petitioner's grievance in relation to the electoral rolls that there has been non-compliance with the provisions of the Constitution, nor there has been any non-compliance with the provisions of this Act, i.e. R. P. Act of 1951, or of any rules or orders made thereunder. Therefore, it is submitted that the petitioners cannot make the legality of the electoral rolls as a ground for declaration of the elections to be void. Section 100 was amended by Act XXVII of 1956 and the provisions of sub-section (1)(d)(iv) are not the same as they were prior to the amendment. Section 100(1)(d)(iv) as it stood prior to the amendment reads:

'that the result of the election has been affected by the improper reception or refusal of a vote or by the reception of any vote which is void, or by any non-compliance with the provisions of the Constitution or of this Act or of any Rules or orders made under this Act or of any other Act or Rules relating to the election.'

18. It could thus be seen that there has been a material difference between the two provisions. The words 'any other Act or rules relating to the election' have been omitted by the amending Act from Section V. It is the contention of Mr. Albal that the electoral rolls are prepared under the provisions of the R. P. Act of 1950 and therefore, the provision of Section 100(1)(d)(iv) of the R. P. Act of 1951 as it stands now does not entitle the petitioners to make a grievance as to the legality of the electoral rolls as a ground for declaring the election void and this Court in its decision, to which a reference has already been made, viz., Sreeramulu's case, 1965-1 Mys LJ 676 has pointed out that the legality of the electoral rolls cannot be a legitimate ground under Section 100(1)(d)(iv) of the R. P. Act of 1951 to render the election void.

19. However, Mr. Patil for the petitioners submits that the contention of the respondents that the petitioners cannot make a grievance as to the legality of the electoral rolls in the election petition under section 100(1)(d)(iv) cannot be accepted. According to him, the submission of the respondents proceeds on the misconception of the word 'election' found in Article 329(b) of the Constitution. He states that Part XV of the Constitution of India - Article 329 deals with elections. It is a self-contained Code relating to the elections; and under Article 329(b) of the Constitution, an election can be challenged or called in question by an election petition presented to such authority as is provided for by or under any law made by the appropriate Legislature. The word 'election', he submits is used to embrace the whole procedure of election, that is, from the commencement of the election till the final result is declared. The preparation of the electoral rolls is one of the steps which is necessary to hold the elections, and therefore, he is entitled to challenge the legality of the electoral rolls to have the election of the respondents declared void under Section 100(1)(d)(iv) of the R. P. Act of 1951 before this Authority.

20 In support of his contention, Mr. Patil has placed very strong reliance on the decision in N. P. Ponnuswamy v. Returning Officer, Namakkal Constituency, : [1952]1SCR218 where the meaning to be given to the word 'election' as it appears in Part XV of the Constitution came up for consideration. The appellant therein was one of the persons who had filed nomination papers for election to the Madras Legislative Assembly from the Namakkal Constituency in Salem District. The Returning Officer for that Constituency rejected the appellant's nomination paper. The appellant, thereupon, moved the High Court under Article 226 of the Constitution praying for a writ of certiorari to quash the order of the Returning Officer rejecting his nomination paper and to direct the returning Officer to include his name in the list of valid nomination papers to be published. The High Court dismissed the appellant's application on the ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of the provisions of Article 329(b) of the Constitution. On appeal to the Supreme Court, the appellant contended that the view expressed by the High Court is not correct, that the jurisdiction of the High Court is not affected by Article 329(b) of the Constitution and that he was entitled to a writ of certiorari in the circumstances.

21. The most important question that arose for determination before the Supreme Court was the meaning to be given to the word 'election' occurring in Article 329(b) of the Constitution and after discussing how a long usage in connection with the process of selection of proper representatives in a democratic institution, the word 'election' acquires both a wide and narrow meaning stated that

'The word 'election' can be, and has been, appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process.'

Therefore, on the authority of this statement, Mr. Patil urges that since the word 'election' embraces the entire process consisting of several stages and many steps and as the electoral roll is prepared in the process of election, it is one of the stages in the election and, therefore, he is entitled to question the legality of the electoral rolls in this petition.

22. It is pointed out by Mr. Patil that Article 329(b) of the Constitution of India states that no election can be called in question except before the election authority appointed for the trial of the election petition and therefore, he has every right to challenge the legality of the electoral rolls before this Authority. In other words, he states that he cannot challenge the legality of the electoral rolls before any other authority and to contend that he cannot challenge the legality even before this authority is to hold that the legality of the electoral roll can never be challenged and such a situation is not contemplated either by the Constitution or by any provision of any other Act, and, an interpretation which leads to such a result cannot be accepted by this Court. Therefore, what I have got to determine is whether the preparation of electoral rolls is one of the steps or stages contemplated by the R. P. Act of 1951.

23. It cannot be disputed that all electoral rolls are prepared under the provisions of the R. P. Act of 1950 and as pointed out in Ponnuswami's case, : [1952]1SCR218 the Representation of the People Act, 1951, which was passed by Parliament under Article 327 of the Constitution makes a detailed provision in regard to all matters and all stages connected with the election to the various Legislatures in this country. That Act is divided into 11 parts, and it is interesting to see the wide variety of subjects they deal with. Part II deals with 'the qualifications and disqualifications for membership'. Part III deals with the notification of general elections. Part IV provides for the administrative machinery for the conduct of elections, and Part V makes provisions for the actual conduct of elections and deals with such matters as presentation of nomination papers, requirements of a valid nomination, scrutiny of nominations, etc., and procedure for polling and counting of votes. Part VI deals with disputes regarding elections and provides for the manner of presentation of election petitions, the constitution of election tribunals and the trial of election petitions. Part VII outlines the various corrupt and illegal practices which may affect the elections and electoral offences. Obviously the Act is a self-contained enactment so far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any matter connected with elections, we have only to look at the Act and the Rules made thereunder.

24. It is obvious from this observation that the Supreme Court while stating that the word 'election' has been properly used with reference to the entire process which consists of several stages and embraces many steps. What is the process and what are the several stages has been made clear in para 11 of the judgment which has been just quoted by me. Such process and several stages must be the process and stages as contemplated by the R. P. Act, 1951.

25. But as I pointed out, the electoral rolls are prepared under the provisions of R. P. Act of 1950. If that is so it is obvious that the preparation of electoral rolls is not one of the stages contemplated by R. P. Act of 1951. That being so, it is difficult to accept the contention of Mr. Patil that the legality of the electoral rolls can properly be challenged in a petition filed under Article 329(b) of the Constitution. There is neither any substance in the submission that if the Court cannot consider the legality of the electoral rolls and the jurisdiction of the Civil Court having been barred under Section 30 of the R. P. Act of 1950 to consider the legality of the electoral rolls, the petitioners have no remedy and such a situation cannot be brought about by the interpretation of the relevant provisions of the Act. This submission ignores the relevant provisions made for the preparation of the electoral rolls and the corrections therein in the R. P. Act of 1950.

26. Part III of the R. P. Act of 1950 deals with the preparation of electoral rolls for the Assembly Constituencies and the relevant sections are Sections 21 to 24 of the said Act. Section 21 deals with the preparation and revision of electoral rolls. Section 22 deals with the correction of entries in the electoral rolls. S. 23 deals with the inclusion of names in electoral rolls and S. 24 provides form appeals. Thus, every provision has been made to question the legality of the preparation of electoral rolls under the Act providing for final appeal to the Election Commission. Therefore, it cannot be said that the petitioners are left without any remedy if the electoral rolls are prepared illegally. They have every right to challenge the correctness or the legality of electoral rolls in the manner provided by Part III of R. P. Act of 1950. Therefore, I have to hold that it is not open to challenge the legality or correctness of the electoral rolls in the election petition presented under Article 329(b) of the Constitution of India and that cannot constitute a ground to declare the election void under S. 100(1)(d)(iv) of the R. P. Act of 1951.

27. Mr. Patil next submitted that the respondents cannot invoke the provisions of section 30 of the R. P. Act of 1950 to contend that this Court has no jurisdiction to consider the legality or correctness of the electoral rolls. What Section 30 provides is the bar of jurisdiction of civil courts. He contends that an election petition is not to be equated with an election at law or equity. The right to challenge an election is a statutory right and not a common law right or a right in equity. It may be conceded in favour of the petitioners that an election right is not a civil right but is a creature of the statute or a special law. Therefore, the right being a conferred right, its scope is limited by the contents of the relevant statutory provisions and under Article 329 of the Constitution of India, this Court is trying the election petition as an authority under the Constitution.

28. Article 329 of the Constitution states that no election shall be called in question except by an election petition presented to such authority as may be provided for by, or under, any law made by the appropriate legislature. Parliament by enacting R. P. Act of 1951 has made provision for the presentation of election petitions. Section 80A provides for the trial of election petitions by High Court having jurisdiction to try the election petition and such a jurisdiction has to be exercised ordinarily by a single Judge of the High Court and the Chief Justice is to assign one or more Judges for that purpose. Therefore, a Judge of this Court is an authority as contemplated by Article 329(b) of the Constitution and hence it is submitted that the High Court being a special authority under the Constitution created by the R. P. Act of 1951 is not a Civil Court and that S. 30 of the R. P. Act of 1950 cannot be invoked by the respondents to contend that the jurisdiction of this authority is barred. But that question to my mind, need not be gone into by this Court since the Supreme Court in Ramaswamy's case, : [1963]3SCR479 , to which a reference has already been made, has taken the view that the Munsiff who was trying an election petition and who was to exercise all or any of the powers of the Civil Court was stated to have no jurisdiction to question the legality of the decision taken by the Returning Officer in connection with the electoral rolls. That decision suggests that the jurisdiction of the Munsiff was barred under Section 30 of the R. P. Act of 1950 and that is how it was understood by this Court in K. Sriramulu's case, 1965-1 Mys LJ 676 to which, a reference has already been made.

29. A Division Bench of this Court has taken the view relying on the decision of Ramaswamy's case, : [1963]3SCR479 that the correctness or the legality of the electoral rolls cannot be gone into by this Court. It observes:

'The petitioner is disputing the correctness as well as the legality of the electoral rolls prepared. This, he cannot do in view of Section 30 of the 1950 Act. That much appears to be obvious. That conclusion of ours is put beyond controversy by the decision of the Supreme Court in Ramaswamy's Case, : [1963]3SCR479 .'

30. That being the position, I have to hold that the petitioners' contention as to the correctness or the legality of the electoral rolls is equally rolls is equally barred under Section 30 of the R. P. Act of 1950.

31. I will now proceed to consider the common issues as originally framed, viz., issues IV(a), (b) and (c) in E. P. 17 of 1967 and issues II(a), (b) and (c) in E. P. 19 and E. P. 23 of 1967 respectively.

32. The dispute in E. P. 17 of 1967 relates to the election from Aurad Constituency, whereas in E. P. 19 and 23 of 1967, it relates to Hulsur and Bhalki Constituencies respectively. I have already stated the allegations made in E. P. 17 of 1976 on which Issue Nos. IV(a), (b) and (c) have been raised. I have also stated that it is not necessary to state the allegations made in E. P. 19 and 23 of 1967 on which Issue Nos. II(a) (b) and (c) are raised since they are similar.

33. Now, Issue No. IV(a) requires the petitioner to prove that it was necessary under law to prepare a translation (Transliteration) of the electoral rolls into Marathi language and they seek to prove that it was so necessary, relying on both oral and documentary evidence.

34. The documentary evidence relied on by the petitioners are Exhibits R. 3, R. 5 and P. 6.

35. The witness for the petitioners merely stated that there were two electoral rolls, one in Marathi and the other in Kannada. But Mr. Patil for the petitioners, to prove this issue essentially relies upon the documentary evidence which I have just stated. Exhibit R. 3 is a telegram dated November 21, 1966, issued under the signature of the Under Secretary, Election Commission, India addressed to (1) the Assistant Commissioner, Bidar, and (2) the Deputy Commissioner, Bidar, and (3) Nirvachan, Bangalore, (Mysore State). It reads as follows:

'No. 23/MY/55. Reference DYCOM Bidar letter KLN 7/113/65. 66, dt. Fifteen November and Nirvachan, Bangalore Rolls for Aurad and Hulsoor assembly Constituencies published finally in Kannada on June Thirtieth are under law Rolls of these constituencies their republications during same year as communicated in DYCOM above letter illegal and consequently null and void.

'No action could therefore be taken on claims and objections that may be filed as a result of republication. As regards Bhalki Assembly Constituency Kannada Rolls which were due to be published finally on October Thirtieth should be published immediately. Draft Rolls of this Constituency published on Fifteenth November in Kannada and Marathi without Commission's approval should be canceled being irregular. Letter follows:'

36. This telegram states that electoral rolls of Hulsur and Aurad Constituencies published finally on 30th June are under law Rolls for these constituencies and therefore, their republication was treated as illegal. It also makes clear that Kannada Rolls for the Bhalki Constituency which were due to be published on October 30 were directed to be published immediately and the draft rolls of Bhalki Constituency published on November 15 in Kannada and Marathi were irregular and, therefore, to be cancelled. It is thus clear that the Kannada electoral rolls for the Aurad, Hulsur and Bhalki constituencies were declared to be in law electoral rolls, and Article 325 of the Constitution states that 'there shall be one general electoral roll for every territorial constituency for election to either House or either House of the Legislature of a State..........' Therefore, the direction in the telegram from the Election Commission is in conformity with the provisions of Art. 325.

37. Further, in this telegram there is nothing to suggest that the electoral rolls of these constituencies were published both in Kannada and Marathi but clearly stated that Kannada Electoral rolls were the only rolls for these constituencies. However, Mr. Patil relying on Exhibit P. 5 dated 24-11-1966 submits that the electoral rolls for these constituencies were published in two languages. Exhibit P. 5 a letter signed by the Under Secretary and issued from the Election Commission of India and addressed to (1) the Assistant Commissioner (Electoral Registration Officer) for Aurad, Hulsur and Bhalki Assembly constituencies, Bidar Sub-Division, Bidar (2) the Chief Electoral Officer, Mysore, Bangalore, on the subject 'Electoral' Rolls, Aurad, Hulsur and Bhalki Assembly Constituencies. It reads:

'In continuation of the Commissioner's telegram No. 23/MY/66/384-86 dated the 21st November, 1968, on the subject cited, I am directed to State that as mentioned therein, the electoral rolls of Aurad and Hulsur Assembly Constituencies published finally in Kannada on 30th June 1966, are under law the final and operative rolls of these constituencies and that their republication on 15-11-1966 is illegal and consequently null and void and as such no action could be taken on any claim or objection filed on the basis of republication. Since the Kannada rolls of Aurad and Hulsur Constituencies published on the 30th June, 1966 are final rolls and since the rolls in respect of these constituencies in Marathi could not be prepared by the State Government so as to publish simultaneously, the Commission took the view that it would meet the needs of the Marathi speaking population if a page to page transliteration of Kannada rolls already published is prepared in Marathi vide Para (ii) of its letter No. 23/MY/66/27685 dated 3-11-1966. I am accordingly to refer to that direction and to request that the transliteration of the rolls of these Assembly constituencies in Marathi Language may be prepared and wide publicity given to the fact of such preparation in Marathi.

2. As regards Bhalki Assembly Constituency, it now appears from the letter from the Chief Electoral Officer, Mysore No. LAW. 34 BRA 66; dated the 18th November that the Kannada rolls which were due to be published finally on 30th October, 1966 have been published so far. As already directed in the Commission's abovementioned telegram, I am to request that the rolls of this constituency which were prepared in Kannada and were due to be published immediately. I am also to request that immediate steps may kindly be taken to prepare page to page transliteration of these rolls and wide publicity given to the fact of such preparation of Marathi. The draft rolls of this constituency published on 15-11-1966 in Kannada and Marathi without the Commission's approval should be cancelled as being irregular.

3. I am further to request that since it is open to any candidate to refer to the rolls in either language for purpose of nomination and at the time of voting it may be ensured that the transliterated rolls referred to in Paras. (1) and (2) above are accurate and from this point of view they should be compared thoroughly.

The receipt of this letter may kindly be acknowledged.'

38. This letter was a sequel to the telegram Exhibit R. 3. It is clear from the contents of Exhibit P. 5. that while confirming the contents of Exhibit R. 3, it states that it would meet the needs of Marathi speaking population if a page to page transliteration of Kannada rolls already published is prepared in Marathi and requested the addressees to prepare a transliteration of the rolls of these assembly constituencies and to give wide publicity to the fact of such preparation in Marathi. It means that the Kannada Voters' list was the final list and a word to word transliteration of the same was to be made to facilitate Marathi speaking population of those areas.

39. Exhibit R. 6 is a letter dated February 13, 1967 from the Chief Electoral Officer for Mysore, Bangalore, to the Assistant Commissioner, Bidar Sub-division Bidar on the subject of the electoral rolls of Aurad, Bhalki and Hulsur Constituencies--printing of additions to, and corrections of, Kannada and Marathi Rolls. It reads as follows:

'Please refer to your letter mentioned above. In the light of the findings of my Under Secretary in regard to the discrepancies obtaining in Kannada and Marathi rolls of Aurad, Bhalki and Hulsur constituencies, your proposal made in the above mentioned letter regarding the use of Marathi rolls side by side with Kannada rolls for reference in establishing the proper identity of voters in respect of the above constituencies is approved. It is hoped that the Presiding Officers have already been suitably appraised of the position obtaining with regard to the rolls of above constituencies and instructed in detail as to the correct way of correlating Kannada and Marathi rolls.'

40. It is clear from this letter that the request of the Assistant Commissioner, Bidar, regarding the use of Marathi rolls side by side with Kannada Rolls for reference in establishing the proper identity of voters in respect of the above constituencies was approved and the Chief Electoral Officer expressed the hope that the Presiding Officers have been suitably instructed in that regard. This letter was addressed on the 13th and the polling was to take place on 15th February, 1967 that is, two days earlier.

41. Thus the effect of Exhibits P. 5 and R. 6 is that the transliteration of Kannada rolls was to be made in the Marathi language and the use of such transliteration was permitted. But there is no evidence on record whether in fact such a transliteration was made. It is also clear from Exhibit R. 6. that the Marathi voters' lists published prior to June 30 and October 30, was cancelled. The complaint of the petitioners in all the three petitions is that the majority of the Marathi voters were not permitted to vote on the ground that their names did not appear in Kannada voters' list against the serial number mentioned in the aid chits supplied to them. The evidence of the petitioners' witnesses is such that such voters who went with aid chits having serial numbers and names in accordance with the Marathi Voters' list were refused ballot papers with the result, they returned without casting their votes: But if the aid chits supplied to the Marathi voters were not in accordance with the Kannada Electoral Rolls and were in accordance with the Marathi voters' lists which were already published and which were declared to be cancelled by the Election Commission, the petitioners must thank themselves for such a lapse.

42. Exhibit R. 3 makes it clear that the Kannada voters' list alone was a valid list for these constituencies and no provision of law has been brought to my notice under which it was necessary to prepare a transliteration of the electoral rolls in Marathi language. The Election Commission explained that to facilitate the Marathi speaking people to exercise their right of voting that a transliteration of the electoral rolls in Kannada should be made into Marathi language. In such circumstances, I am unable to hold that the petitioner has proved that it was necessary under law to prepare a transliteration of Kannada Electoral rolls into Marathi language.

43. Issue No. IV(b) requires the petitioners further to prove that the Marathi Rolls so prepared suffers from two defects, namely (1) that the serial numbers in the Marathi Rolls did not tally with the serial numbers in the Kannada roll and (2) that the several names contained in the Kannada Roll were omitted to be copied in the Marathi Roll. Since there is no evidence on record, as I stated earlier, that a transliteration of Kannada Voters' list into Marathi was prepared or published, the consideration of this issue does not arise. However, the evidence, as I stated earlier, adduced by the petitioners is to the effect that some of the Marathi voters who went to cast their votes having aid chits in accordance with the Marathi electoral rolls were not permitted to cast their votes on the ground that their names did not appear in Kannada voters' list against the serial numbers mentioned in the aid chits carried by them. It may be taken from the evidence of the witnesses, both for the petitioners and the respondents that there is a variation between the Kannada voters' list and the Marathi Voters' list which the petitioners have alleged, but, as I have stated, these Marathi Rolls might be the rolls which were cancelled by the Election Commission by its telegram dated November 21, 1966. If the Marathi Electoral rolls referred to by the petitioners' witnesses were in fact the transliteration of the Kannada Voters' list, then it is impossible that there should be any such discrepancy as alleged by the petitioners and stated by their witnesses. But, since the petitioners have failed to establish that either under law the transliteration of Kannada Voters' list into Marathi was necessary or that they were, in fact, so prepared, the complaint regarding the variation between the electoral rolls does not assume much importance.

44. Issue No. IV(c) requires the petitioners to prove further that in consequence of the above, the result of the election so far as the respondents are concerned had been materially affected.

45. As I read the issue, it appears to me, that the two defects referred to in issue IV(b) are, that the serial numbers in Marathi roll did not tally with the serial number in the Kannada Roll and several names contained in Kannada Rolls were omitted to be copied in the Marathi Roll. Therefore, issue IV(c) was raised. That means whether as a consequence of the above two defects, the result of the election of the respondents has been materially affected. It is clear that since the petitioners have failed to establish their allegations as covered by issue IV(b), it is obvious that the petitioners have also failed to establish that as a consequence of these two defects the result of the election of the respondents is materially affected.

46. However, it is contended by Mr. Patil, the learned Counsel for the petitioners, that what is really complained of is that there was an improper refusal of the votes of Marathi voters and as a result of such improper refusal, the election so far as the returned candidate is concerned has been materially affected. This complaint, he says, falls under Clause (iii) of Section 100(1)(d) of the R. P. Act of 1951, but to that effect he has claimed no issue. However, since the complaint of the petitioners is that large number of votes of Marathi voters were refused on the ground that their names did not appear in Kannada Voters' list and the number of such votes is at least 10,000 and since evidence has also been let in both by the petitioners and the respondents, the petitioners are permitted to argue on that aspect of the case, viz. whether the petitioners prove that there has been improper refusal of Marathi votes to the extent of 10,000 and as a result of that, the election of the respondents has been materially affected.

47. We may assume as Mr. Patil contends that there were two electoral rolls, one in Kannada an the other in Marathi and that there was an improper refusal of votes of Marathi voters whose name appeared in the Marathi voters' list. He then relying on the decision in Kolaka Nilakanthan v. Ananta Ram Maji, : AIR1968Ori75 where it is observed:

'Where electoral rolls are published in two different languages under the authority of the Election Commission, both the electoral rolls must be identical. There should be no discrepancy. The electors whose names are registered in the electoral roll prepared in one language cannot be refused to cast their votes merely because their names did not occur in the corresponding electoral roll in the other language'

submits that if in the circumstances there was an improper refusal of votes, then the election of the respondents must be declared void. Accepting that the petitioners have established that there was an improper refusal of some of the Marathi votes, the question still remains whether by merely establishing that there was an improper refusal of some votes, Mr. Patil can succeed in getting the election of respondents declared void.

48. The Orissa decision on which reliance has been placed by Mr. Patil does not help him in contending that a mere establishment of the improper refusal of votes by itself would entitle him to succeed in the election petitions and to claim that the result of the election has been materially affected, there must be definite proof that the result of the election has been materially affected by improper refusal of votes in order to set aside the election as being void.

49 However, it is submitted by Mr. Patil that it is not necessary for him to establish by adducing evidence that as a result of refusal of Marathi votes the election has been materially affected. He contends that a voter has a right to vote. That right has been given to him under Section 62(1) of the R. P. Act of 1951 which 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, and if a voter is entitled to vote, the improper refusal of such a vote by the Polling Officer by itself amounts to non-compliance with the provisions of the R. P. Act of 1951, made this ground by itself is sufficient to declare the election void. He need not, he submits, prove in such circumstances that by improper refusal of votes the result of the election has been materially affected, and in support of his submission, he relies on the decisions in Durga Shankar Mehta v. Raghuraj Singh, : [1955]1SCR267 and Mahadeo v. Babu Udai Pratap Singh, : [1966]2SCR564 .

50. The facts in Durga Shankar's case, : [1955]1SCR267 as appear from the judgment are:

51. Raghuraj Singh respondent 1 filed an election petition against the appellant and the other respondent Vasantha Rao challenged the election of the appellant and respondent 2 who were declared elected to the General and Reserve seats respectively. The substantial ground on which respondent 1 assailed the validity of the election was that respondent 2 Vasantha Rao who was declared duly elected to the reserve seat in the said Constituency was at all material times below 25 years of age and consequently, not qualified to be chosen to fill a seat in the Legislative Assembly of a State under Article 173 of the Constitution. This allegation was found to be true by the majority of tribunals which came to the conclusion that the act of the Returning Officer in accepting the nomination paper of Vasantha Rao who was disqualified to be elected as a member of the State Legislature under the Constitution amounted to improper acceptance of the nomination within the meaning of S. 100(1)(c) of the Act and the result of the election was materially affected thereby. They, therefore, pronounced the whole election to be void and the propriety of this decision was challenged before the Supreme Court. The Supreme Court referred to Section 100 as it stood then which provided for the grounds for declaring an election to be void.

52. It was conceded before their Lordships by the learned counsel for the appellant that he could not challenge the propriety of the finding arrived at by the majority of the Tribunals that respondent Vasantha Rao was below 25 years of age at all material times. He however, stated there has no improper acceptance of nomination in the present case as has been held by the Tribunals and consequently, the provisions of Section 100(1)(c) would not be attracted and the entire election could not be declared void. The learned counsel conceded that on the finding of the Tribunal there has been a violation of, or non-compliance with, the provisions of Section 173 of the Constitution as Respondent 2 suffers a constitutional disability by reason of his under-age and is not qualified to be chosen to fill a seat in the Legislative Assembly of a State, his election can undoubtedly be declared void under Section 100(2)(c) of the Act, but there was no jurisdiction for pronouncing the whole election, including that of the appellant as void. Thus, the whole controversy centered round as to whether on the facts admitted and proved, the case fell within the purview of the sub-section (1)(c) of S. 100 of the Act or under sub-s. (2)(c) of the same Section.

53. Their Lordships quoted the relevant portions of those two sub-sections of S. 100 in para 7 of their Judgment. They held that under the circumstances of the case, it cannot be said that there has been any improper acceptance of the nomination on the part of the Returning Officer which s. 100(1)(c) of the Act contemplates. They observed that: 'The acceptance by the Returning Officer of the nomination paper is not final and the election tribunal may, on evidence placed before it, come to a finding that candidate was not qualified at all. But the election should be held to be void on ground of the constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer. In our opinion, Mr. Seen is right that a case of this description comes under sub-section (2)(c) of Section 100 and not under sub-section (2)(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 in our opinion 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 election at all'.

They further observed :

'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 has not been specifically enumerated in the other portion of this clause.'

54. It is the interpretation of the expression 'non-compliance with the provisions of the Constitution' that Mr. Patil very strongly relies to contend that infraction of any provision of the Act by itself is sufficient to declare the election void, as observed in the said decision. According to Mr. Patil the infraction of the provisions of the R. P. Act of 1951 is of S. 62(1) read with clause (iii) of S. 100(1)(d) and therefore, his case falls fairly and squarely within the decision of this case. Hence he asks to sustain his contention that the election of the respondent is void. I am unable to accede to his contention.

55. In Durga Shankar's case, : [1955]1SCR267 , the finding was that Vasantha Rao was a candidate who was constitutionally incapable of being returned as a member of the Legislative Assembly and therefore, there has been a non-compliance with the provisions of the Constitution. But in the instant case, it is difficult to hold that there has been any non-compliance of the provisions of the R. P. Act of 1951. Under Section 62(1) of the R. P. Act of 1951 every person who is entered in the electoral roll of any constituency shall be entitled to vote in that constituency. In other words, it confers a right on every person whose name is entered in the electoral roll of a particular constituency to vote in that constituency.

56. But in a case where there has been improper refusal of vote, it cannot be said that there has been an infraction of any provision of the Act which by itself would be a ground for declaring the election to be void. In my opinion, it is incumbent on the petitioner who claims for declaration of the election of the respondents to be void on the ground that there has been an improper refusal of votes, to prove further that the result of the election has been materially affected and unless he so proves by adducing proper evidence, he must fail. Hence Mr. Patil's contention that this is a composite case where there has been an infraction of the provisions of Section 62(1) read with clause (iii) of Section 100(1)(d) of the R. P. Act of 1951 and that by itself is sufficient to declare the election void, cannot be accepted.

57. In Jabbar Singh v. Genda Lal, : [1964]6SCR54 ,the Supreme Court has considered the scope of an enquiry in a case falling under Section 100(1)(d)(iii). It has observed:

'Scope of the enquiry in a case falling under S. 100(1)(d)(iii) is to determine whether any votes have been improperly cast in favour of the returning candidate or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matter which would be relevant in deciding whether the election of the returning candidate has been materially affected or not. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in S. 100(1)(d)(iii), the result of the returned candidate's election has been materially affected, and that, incidentally, helps to determine the scope of the enquiry'.

58. The petitioners in this case have led no evidence to prove that the result of the election of the respondents has been materially affected and Mr. Patil concedes that he has not led such evidence since he essentially relies in support of his submission on the decision of Durga Shankar's case, : [1955]1SCR267 . In that case, again it is necessary to point out that Section 100 as it stood before the amendment came up for consideration. Section 100 has been amended by Amending Act XXVII of 1956. The Supreme Court has pointed out in more than one decision the difference between the old and the new sections and the effect of the amendment.

59. In Surendra Nath Khosla v. S. Dalip Singh, AIR 1857 SC 242 the Supreme Court has pointed out the difference between the amended and the unamended Section 100 of the R. P. Act of 1951. It was observed in the said case that:

'Though the words of Section 100 as it stood before the Amending Act 27 of 1956, are in general terms with equal application to the case of improper acceptance as also of improper rejection of nomination paper case law has made a distinction between the two classes of cases. There is a presumption in the case of improper rejection of a nomination paper that it has materially affected the result of the election. Apart from the practical difficulty, almost the impossibility of demonstrating that the electors would have cast their votes in a particular way, that is to say, that a 'substantial number of them would have cast their votes in favour of the rejected candidate, the fact that one of the several candidates for an election had been kept out of the arena is by itself a very material consideration. Cases can easily be imagined where the most desirable candidate from the point of view of other candidate may have been wrongly kept out from seeking election. On the other hand, in the case of an improper acceptance of a nomination paper, proof may easily be forthcoming to demonstrate that the coming into the arena of an additional candidate has not had any effect on the election of the best candidate in the field. The conjecture therefore is permissible that the legislature realising the difference between the two classes of cases has given legislative sanction to the view by amending Section 100 by the Representation of the People (Second Amendment) Act, 27 of 1956, and by going to the length of providing that an improper rejection of any nomination paper is conclusive proof of the election being void.'

60. This case has been referred to again by the Supreme Court in its decision in : [1966]2SCR564 where he has pointed out that :

'The amending Act of 1956 has separated the case of improper rejection of nomination papers from those where nomination papers have been improperly accepted. Both these cases had been grouped together under Section 100(1)(c) of the unamended Act. Now, the cases of improper rejection have been taken under Section 100(1)(d)(iv). Where it is alleged that a nomination paper has been improperly accepted, it obviously means that the acceptance is the result of non-compliance with the provisions of the Constitution or of the Act or of any rule or order made under the Act and in such cases the Courts must enquire whether it has been shown by the election petitioner that by reasons of that infirmity the result of the election has been materially affected.'

61. It is, therefore, clear from this decision that in the instant case, when the petitioners complain that there has been an improper refusal of votes, they have got to demonstrate by evidence that as a consequence of the non-compliance of clause (iii) of Section 100(1)(d) of the R. P. Act 1951, the result of the election has been materially affected.

62. The difference between the old and new Section 100 of R. P. Act of 1951, has been again pointed out by the Supreme Court in S. M. Banerjee v. Sri Krishna Aggarval, : [1960]2SCR289 .

63. Thus it is seen that Durga Shankar's case, : [1955]1SCR267 was decided under the provisions of the unamended Section 100 of R. P. Act 1951 which materially differs from the amended section. Therefore, the petitioners cannot rely on the ratio of that decision to sustain their contention that improper rejection of votes under the provisions of Section 100(1)(d)(iii) read with Section 62(1) by itself amounts to infraction of the provisions of the R. P. Act of 1951. In such a case, the petitioners have to establish that by improper refusal, the result of the election of the respondents has been materially affected, and since there is no evidence in this case to demonstrate that the election of the respondents has been affected, I hold that the petitioners have failed to prove issue IV(c) also.

64. Thus, for the foregoing reasons, I find that the petitioners have failed to prove issue Nos. IV(a), (b) and (c) in E. P. 17 of 1967 which also means the petitioners have failed to prove issue Nos. II(a), (b) and (c) in E. P. 19 and 23 of 1967 respectively.

65. In view of my finding on the common issues and in view of the order made by me yesterday, I proceed to make the following order in each of the petitions.

E. P. 17 of 1967 dismissed with costs.

E. P. 19 of 1967 dismissed with costs.

E. P. 23 of 1967 dismissed with costs.

66. I quantify the Advocate's fee for each of the respondents at Rs. 500/-.

67. A copy of the judgment will be kept in each of the three petitions.

68. Petition dismissed.


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