1. At the election to the Punjab Legislative council held in April, 1968, 5 candidates contested the election from Hoshiarpur local Authorities Constituency. The last date for the filing of the nomination papers was 12th of March, 1968.
The date for the scrutiny of these papers was 13th of March, 1968; and the last date of withdrawal was 16th of March, 1968. The actual polling took place on the 7th of April 1968;
The date for the scrutiny of these papers was 13th of March, 1968; and the last date of withdrawal was 16th of March, 1968. The actual polling took place on the 7th of April, 1968; and the result was declared on the 8th of April, 1968. The candidates, who contested who contested the election, were- Kundan Singh, petitioner; Kabal Singh, respondent No. 1; Didar Singh, respondent No. 2; Mian Mohinder Singh, respondent No.4; Kabal Singh, respondent No.1 was declared elected. This led to the present petition by Kundan Singh on the 13th of May, 1968, to this Court, for an order declaring the election of Kabal Singh void and for an Order that the Kundan Singh void and for an Order that the Kundan Singh be declared duly elected. On the 2nd of August 1968, Kabul Singh filed a Recriminatory Petition under Section 97 read with Section 101 of the Representation of the People Act, 1951.
(After setting out the grounds and the issues in the election petition and the recriminatory petition, his Lordship disposed of the issues arising in the election petition except issue No. 1 against the petitioner. The order then proceeded:-
In view of my not deciding issue No. 1 and leaving it to be decided by a larger Bench, the papers of this case will now be laid before my Lord the Chief Justice for constituting a Fill Bench as early as possible to settle that issue.
I may mention that in case issue No.1 is decided in favour of the respondent and against the petitioner, it will not be necessary to send back the case for final orders. In that event, the petition will stand dismissed with costs which are assessed at Rs.250. But in case issue No.1 goes against the respondent and in favour of the petitioner, it will then be necessary to try the recriminatory petition filed by the respondent.
OPINION OF THE FULL BENCH
Shamsher Bahadur, J.
2. The single question emerging out of the order of reference of Mahajan J. for determination of this Full Bench is whether the order for inclusion of the voter Hari Singh by the Electoral Registration Officer of 5th of April, 1968, falls within the ambit and scope of his authority when 12th March, 1968, was the last date for making nominations in view of the inhibition laid down in sub-section (3) of Section 23 of the Representation of the People Act, 1950 (hereinafter called the Act') that 'no direction for the inclusion of a name in the electoral roll of a constituency shall be given After the last date for making nominations for an election in that constituency'.
'1. Whether allegation in para 4 (a) pertaining to the vote of Hari Singh is correct and the vote was void and was polled in favour of respondent No. 1 in violation of the rules and has materially affected the result of the election of respondent No.1?'
3. There is no dispute on facts. A notification of the Punjab Government of 5th of March, 1968, called upon the Hoshiarpur Local Authorities Constituency to the Punjab Legislative Council to elect a member.
The last date for filing nominations was 12th March, 1968. Scrutiny was to take place on 13th March, and the last date for withdrawal was 16th of march, 1968. The polling took place on 7th of April, 1968, and consequent on the counting which took place on 8th of April, 1968, the Deputy Commissioner of Hoshiarpur as the Returning Officer announced the result. The number of votes in the constituency is not very large as is clear from the votes cast. 22 votes having been rejected, the counting took place only with respect to the remaining 358 valid votes. Both the petitioner Kundan Singh, and the returned candidate Kabul Singh, the first respondent, secured 169 first preference votes. The three other candidates, with whom we are not concerned, secured nominal number of such votes. In the second count, the first respondent got three votes and the petitioner two. The returned candidate having secured a lead of one vote was declared successful
4. The election is challenged by the petitioner Kundan Singh in his petition of 13th May, 1968, inter alia, on the ground that the name of Hari Singh which was not on the electoral roll on the day of nomination, was brought on it on 5th of April, 1968, only tow days before the election, and that the petitioner recveived intimation of it when the polling had started on the 7th of April, 1968. It is not disputed that the application by Hari Singh for bringing his name on the electoral roll was made on 8th of March, 1968, to the Chief Electoral Officer of Hoshiarpur Local Bodies Constituency, his claim which has not been contested, being based on his associate membership of Panchayat Samiti, Bhunga. The application was forwarded to the Chief Electoral Officer who in turn sent it to the Electoral Registration Officer, who is the appropriate authority for passing orders on it. According to the evidence of Harbans Singh, Naib-Tehsildar (Election), the name of Hari Singh was brought on the voters list (Exhibit P.W1/1) on the 5th of April, 1968. The inclusion was made soon after the appropriate authority received the intimation of notification of 21st of September, 1963 declaring this voter as an associate member. Reference to Exhibit P>W>1/1 shows that the name of Hari Singh was included in the electoral roll in pursuance of the notification of 21st of September, 1963.
5. The procedure for correction of entries in electoral rolls is embodied in Section 22 of the Act under which:-
'If the electoral registration officer for a constituency .......... Is satisfied after such inquiry as he thinks fit, that any entry in the electoral roll of the constituency-
(a) is erroneous or defective in any particular,
(b) should be transposed to another place in the roll on the ground that the person concerned has changed his place of ordinary residence within the constituency, or
(c) should be deleted on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll, he shall amend, transpose or delete the entry,'
6. As the crucial point turns on the construction to be placed on sub-section (3) of Section 23 in its setting and context with regard to the other sub-section, it would be well to set out first the contents of the section as it stood before the amendment. The section in both its amended and unamended forms, deals with the question of inclusion of names in electoral rolls and prior to 1966 it stood as follows:-
'23 Inclusion of names in electoral rolls.- (1) Any person whose name is not included in the electoral roll of a constituency may apply in the manner hereinafter provided for the inclusion of his name in that roll.
(2) Where an application under sub-section (1) is made at any time after the issue of a notification calling upon that constituency or the parliamentary Constituency within which that constituency is comprised to elect a member or members and before the completion of that election, it shall be made to the Chief Electoral Officer; and in any other case, it shall be made to the Electoral Registration Officer of that constituency.
(3) The Chief Electoral Officer or, as the case may be, the Electoral Registration Officer shall, if satisfied that the applicant is entitled to be registered in the electoral roll, direct his name to be included therein: Provided that if the applicant is registered in the electoral roll of any other constituency, the Chief Electoral Officer or, as the case may be, the Electoral Registration Officer shall inform the Electoral Registration Officer of that constituency and that officer shall, on receipt of the information, strike off the applicant's name from that electoral roll.'
7. The section in its entirely has been substituted by the Representation of the people (Amendment) Act, 1966, Act No. 47 of 1966. Section 10 of the Amending Act is to this effect:-
'10. For Section 23 of the 1950 Act, the following section shall be substituted, namely:-
'23. (1) Any person whose name is not included in the electoral roll of a constituency may apply to the Electoral Registration Officer for the inclusion of his name in that roll.
(2) The Electoral Registration Officer shall, if satisfied that the applicant is entitled to be registered in the electoral roll, direct his name to be included therein:
Provided that if the applicant is registered in the electoral roll of any other constituency, the Electoral Registration Officer of that other constituency and that officer shall, on receipt of the information , strike off the applicant's name from that roll. (3) No amendment, transposition or deletion o f any entry shall be made under Section 22 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this section, after the last date for making nominations for an election in that constituency or in the Parliamentary Constituency within which that constituency is comprised and before the completion of that election.'
8. While sub-section (1) and the proviso to sub-section (3) of the unamended Section 23 find place in the amended section sub-section (2) which permitted the authority to make an order at any time 'before the completion of that election' has been replaced by the new sub-section (3) under which an order of inclusion of a voters name in the electoral roll has to be made on or before the last date for making nominations for an election in that constituency. While the contention on behalf of the petitioner is that the inclusion of the name of Hari Singh by an order of 5th April, 1968, is void and inoperative being in contravention of the mandatory provisions of subsection (3) of Section 23 of the Act, it is the case of the respondents that the impugned order at the most is an illegality and cannot be questioned in election proceedings being an order still within the exercise of the jurisdiction of the Electoral Registration Officer. It is these respective contentions on which there is no direct authority that this Full Bench has to give a decision.
9. In his very fair and lucid argument, Mr. Bedi, for the petitioner, has invited us to hold that the electoral roll which could have been revised before Act No. 47 of 1966 right till the date of election has now been made in revisable between the dates of nominations and the election. As stated in Section 15 of the Act:-
'For every constituency there shall be an electoral roll which shall be prepared in accordance with the provisions of this Act under the superintendence, direction and control of the Election Commission.'
Section 16 sets out the disqualifications for registration in an electoral roll, these principally being unsoundness of mind, non citizenship and disabilities from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections. Under Section 17 of the Act, 'no person shall be entitled to be registered in the electoral roll for more than one constituency. Section 19 says that-
'Subject to the foregoing provisions of this Part, every person who-
(a) is not less than twenty-one years of age on the qualifying date, and
(b) is ordinarily resident in a constituency, shall be entitled to be registered ,in the electoral roll for that constituency.
An 'elector' under the provisions of the Representation of the People Act, 1951 (hereafter called 'the 1951-Act') is defined in relation to a constituency to mean 'a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to nay of the disqualifications mentioned in Section 16 of the Representation of the People Act,' The learned counsel has drawn our attention to Rule 30 of the Registration of Electors Rules, 1960, relating to electoral rolls for Council Constituencies under which an application for correction of entries and inclusion of name in the Electoral Registration Officer and if it is received directly by this authority, he shall refer 'such application to the Chief Executive officer of the local authority concerned and on receipt of information in relation thereto from the Chief Executive Officer of the local authority concerned and on receipt of information in relation thereto from the Chief Executive Officer, the Electoral Registration Officer shall act in accordance with.....'
10. It is the submission of Mr. Bedi that no ignorance could be pleaded of the plain requirement of sub-section (3) of Section 23 of the Act that the order for inclusion has to be made up till the date of nominations. Ari Singh, if he was minded to exercise his vote, should have forwarded his application to the proper authority in the first instance to enable the Electoral Registration Officer on receiving the requisite information to pass an order for his inclusion before the date of nominations. It is not the case of either party guilty of neglect or negligence in the exercise of his duties. Like Hari Singh, he is also presumed to have knowledge about his limitations under the amended Section 23. The authority, however, has to go through the statutory procedure before making a direction to include the name of the applicant in the roll. It may be that Hari Singh had an undoubted right to be included in the electoral roll. It should, however, have been anticipated by him that the direction for inclusion of his name would involve time and even though the requisite information could not be obtained by the concerned authority before 3rd of April, 1968, the final order for his inclusion in the electoral roll being in contravention of a mandatory provision must be regarded as void and inoperative.
It is submitted by Mr. Bedi that the power of inclusion of a name is at par with that of exclusion from the electoral roll under Section 23 and cannot be exercised after the date fixed for filing of nominations. The electoral roll for the particular election, in other words, becomes final on the date of nominations. It is emphasised that the phrase 'for the time being in force' in the definition of 'elector' under Section 2(e) of 1951-Act takes account of such changes and is in consonance with the amended provisions contained in Section 23(3) of the Act. The mode of preparation prescribed in Section 15 of the Act is the same as is provided under Section 27 of the Act for an Council Constituency. Under CLAUSE (d) of sub-section (2) of Section 27, the Electoral Registration officer on whom the duty is cast to maintain the electoral roll corrected up-to-date, the Chief Executive Officer of every local authority has immediately to inform 'the |Electoral Registration Officer about every change in the membership of that local authority; and the Electoral Registration Officer shall, on receipt of the information, strike off from the electoral roll the names of persons who have ceased to be, and include therein the names of persons who have become, members of that local authority'. The petitioner chose of his own seeking to approach the Chief Electoral Officer of the District and lengthened thereby the process for the application to reach the authority which was to deal with it. A calculated risk was taken in making an application which had to pass through a statutory procedure involving time and the ensuing responsibility for it must rest squarely on the shoulders of the petitioner. It is true no doubt that the application for inclusion of name may be presented any time before the final date of nominations, but no order for inclusion can be made after that date. The electoral roll which assumes finality on the day of nominations, in his case 12th March, 1968, could have been subjected up till then to all the alterations, amendments, inclusions and deletions envisaged in Sections 22 and 23 of the Act. An order passed by the appropriate authority after the date of nominations is inherently without jurisdiction and carries with it the dead-weight of this infirmity.
11. This conclusion cannot be evaded on the ground that the Electoral Registration Officer being rightly seized of the application made by Hari Singh for inclusion of his name in the electoral roll had the jurisdiction to pass an order up till the date of polling even after the date of nominations. It is submitted on behalf of the respondents that the appropriate authority once having validly assumed jurisdiction cannot be said to have lost it on a particular date. With great respect to the counsel, this is not a legitimate approach to the problem. It is not a case of a break in the continuity of jurisdiction of the Electoral Registration Officer but relates to the jurisdiction itself of that authority to pass an order after the 12th March, 1968, a power of which he has been specifically deprived by an Act of Parliament . To repeat, there is no time limit for making an application except by implication that it should be filed before the date of nominations, but what is provided for is that the direction for inclusion cannot be given after the date of nominations.
12. Much stress has been laid on behalf of the respondents by Mr. Sarhadi in his very forceful argument on Section 62 of the 1951-Act dealing with the 'right to vote'. Section 62 is to this effect:-
'62. (1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.
(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the Representation of the People Act, 1950 (43 of 1950)
(3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void.
(4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for that constituency more than once, and if he does so vote, all his votes in that constituency shall be void.
(5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police: Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force'.
13. It is argued that ht e restrictions on the right to vote are cribbed, cabined and confined within the four corners of this section. No further disability can be imported in this section and if the Electoral Registration Officer has failed to make the correction in time it is still open for the court to see whether a voter who has cast his vote had actually a right to exercise it? Hari Singh does not suffer from any disability under the five sub-section of Section 62 and consequently the impugned order of 5th April. 1968, was within the competence of the authority and does not suffer from want of jurisdiction. In support of this contention, Mr, Sarhadi has also asked us to hold that the amendment inteoduced by Section 10 of the Act 47 of 1966 in sub-section (3) of Section 23 should be treated as one of a partial repeal and the following statement of the law in craies of Statue Law (6th Edition) at p. 413 has been brought to our notice:-
'It must be borne in mind that there is a difference in effect between repealing an entire Act. It may no doubt be said that, if a clause is repealed, this clause is to be taken as if ti had never existed, but is cannot be said that where a particular clause in an Act is repealed, the whole Act must be read as if that clause had never been enacted. For every Act of Parliament is in the first instance to be looked at as an entirety.... Therefore, a Court of law entitled to look at the repealed portion of an Act to see what is the meaning of what remains of the Act, otherwise this consequence would follow that an Act of Parliament, which at one time had one meaning, would by the repeal of some one clause in it have some other meaning...' the learned counsel contends that the effect of Clause (e) of sub-section (2) of Section 27 of the Act that 'the provisions of Section 15,16, 18, 22 and 23 shall apply in relation to local authorities constituencies is that freedom to the registration authority to give its decision without the fetter of time is maintained. We think that these submissions are without any force. S. 23 of the Act has been entirely repealed and has been substituted far as it imposes a fetter of time is utterly opposed to the un ammednd section. It is a case of total repeal of a part of the statute and the argument of the learned counsel to me appears to be wholly untenable.
14. A Full Bench of this Court in Roop Lal Mehta V. Dhan Singh, 69 Pun LR 618 = (AIR 1968 Punj 1 (FB) has been relied by counsel for both parties in support of their respective contentions. The following passage at p. 621 (of Pun LR) + (at P. 3 of AIR) is referred to emphasise the force of Mr. Bedi's argument about the true effect and significance of the amended Section 23 of the Act:-
'Section 21 provides for the manner in which the electoral rolls are to be prepared and for their revision. Under Section 22, the Electoral Registration Officer for a constituency is empowered to correct entries in the electoral rolls of that constituency in the electoral rolls of that constituency and under Section 23 to include in the electoral rolls names which were wrongly omitted. However, after the last date for making nominations for an election in that constituency, there can be no amendment, transposition or deletion of any entry under Section 22 nor any direction for the inclusion of a name in the electoral roll under Section 23...'
At another place, the learned Judge (S. B. Capoor J.) who spoke for the Full Bench at P. 622 (of Pun LR) + (at p. 4 of AIR) said this:-
'To my mind the scheme of the Act of 1950 is that if a person fulfils the conditions of registration as given in Section 19 and is not disqualified for registration under Section 16, and is also not shut out from registration by the provisions of Sections 17 and 18, he has a right to have hisname on the electoral rolls of the constituency. There are ample provisions in the succeeding sections of the Act of 1950 doe Mking challenge to that entry either by the Regustration Officerat his own motion or on an application made to him, under Section 22, and from his decision appeal is also provided by Section 24 but the final date for making the amendment, transposition of deletion of entries in the electoral roll is the last date for making nominations for an election in atht consitituency.'
Mr. Sarhadi suggests that the Full Bench by implication had decided that the right to challenge an inclusion of a Voter's name is restricted by the disqualifications embodied is Sections 16 to 19. The final sentence in the aforesaid passage. However, negatives the suggestion of Mr. Sarhadi. It is true that t a little later in the judgment the Full Bench observed that it was not the intention of the parliament to throw the entire process of the preparation of electoral rolls, which is a preliminary to the conduct of elections, open to scrutiny in election petitions. This observation, however, cannot be construed to mean that an order of the authority including a name in the electoral roll after the date of nominations becomes unassailable to attack in an election petition.
15. A point was also made by the counsel for the parties regarding the power of the High Court to declare an election void on the ground that a voter's name had been wrongly included by the Electoral Registration Officer. Section 100 of the 1951-Act enumerates the grounds on which a High Court can declare an election to be void. The relevant provision is to this effect:-
'.....if the High Court is of opinion-
(a) x x x x(b) x x x x(c) x x x x (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) x x x x(ii) x x x x (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) x x x x the High Court shall declare the election of the returned candidate to be void,'
16. While Mr. Bedi submits that the vote cast by Hari Singh was invalid and void, Mr. Sarhadi contends that in absence of a definition of a 'void vote' there can be no inference that the concededly illegal order passed by the Electoral Registration Officer resulted in the casting of such a vote. ,Voter, has been defined to be a person who for the time being is on the electoral roll and the option exercised by him in the election is a vote. 'Void vote, is not a concept which is ambiguous and requires definition, nor can it be said that the word ,void , is such as is in need of an interpretation in the statute. It is reasonable in the circumstances to take into account the meaning of the word as is understood in the English language. According to the Shorter Oxford Dictionary (third Edition), the word 'void' in the context would mean 'devoid of, free from, or not tainted with some bad quality, fault or defect; not affected or impaired by something unpleasant or hurtful; destitute of some virtue or good quality; lacking or wanting'. It is plain that the impugned order in so far as it transgressed the statutory bounds of time became tainted with an irremediable defect and in that sense void. I feel no difficulty at all in holding, therefore, that the High Court , in the exercise of its undoubted power under Section 100 of 1951-Act can declare the election void as I consider that the vote case by Hari Singh was not only void but materially affected the result of the election so far as the returned candidate was concerned. It is, of course, disputed on which side Hari Singh cast his vote, but that is a matter which is not for our consideration.
17. Some argument also centered on the point that S. 30 of the Act which provides a bar to the jurisdiction of Civil courts includes, as stated in CLAUSE (a) 'whether any person is or is not entitled to be registered in an electoral roll for a constituency.' Plainly, this section is not applicable to the High Court which is alone competent to entertain election petitions. As observed by Capoor J. in the Full Bench decision of Roop Lal Mehta, 69 Pun LR 618 = (AIR 1968 Punj 1 (FB):
'It seems that when by the Representation of the People (Amendment) Act, 1966, High Court was given the jurisdiction under Section 100, the consequential amendment was by inadvertence no made in Section 30 so as to exclude the High Court hearing election petition from the bar to the jurisdiction Civil Courts to the extent that the High Court had jurisdiction under Sections 100 and 101 of the 1951-Act, and it must be held that there has been implied modification of Section 30 of the 1950-Act.'
18. Plain language of command has been employed in sub-section (3) of Section 23 of the Act. The direction for inclusion has to be made up to be the date of nominations and not subsequently. Mr. Sarhadi has strongly urged before us that the language is directory unaccompanied as it is by any penal provision. Reliance is place by Mr. Sarhadi on the authority of the Supreme Court in Jagan Nath v. Jaswant Singh, AIR 1954 SC 210, where Chief Justice Mahajan, speaking for the Court, said at p. 214:
'There is no valid reason for treating the word 'shall' in Section 82 in a manner different from the same word used in O. 34, R. 1, Civil P. C.. It is one of the rules of construction that a provision like this is not mandatory unless non-compliance with it is made penal.'
The penal provision for infringement of the condition laid down in sub-section (3) of Section 23 of the Act may not be there in the section itself, but no doubt can be entertained that sub-clause (iii) of Clause (d) of Section 100 makes it incumbent on the High Court to declare an election void if the vote had been improperly received. In the words of Mr, Justice Vivian Bose in Pratap Singh v. Shri Krishan Gupta, AIR
1956 SC 140, 'Some rules are vital and go to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues.' Hari Singh, or indeed any other person interested to have his name included in the electoral roll, should have known that the final direction to this effect could have been given not later than 12th March, 1968. The application by Hari Singh was made on 8th March, 1968, but as the provisions of law, to which I have adverted, clearly show that the inclusion of names involved time and compliance of rules, it was his duty to ensure that the order for inclusion of his name was made before the last date for nominations. Whether the application made by Hari Singh on 8th March, 1968, was within time or not is wholly irrelevant. What he should have been aware of is that the inclusion had to be done after compliance of statutory provisions before the 12th March, 1968, and if proceedings had to be taken with expedition and despatch, the matter at least should have been brought to the pointed attention of the dealing authority. If Hari Singh chose to make his application firstly to a wrong person at the nick of time, he cannot be heard too say that he has been harmed or prejudiced by the act of an authority whose bounden duty was to give a decision by 12th of March, 1968. The copy of the notification which might conceivably have expedited the process was not attached to the application, and the information had to be obtained from other sources. In retrospect, it may appear to be a mechanical decision which was embodied in the direction of 5th of April, 1968, but there can be no doubt that the authority concerned was not guilty of any misconduct or negligence in the exercise of his power. I also think that the rule embodied in sub-section (3) of Section 23 of the Act went to the root of the matter and it could not be broken, The breach of the mandatory requirement which the Parliament had deliberately which the Parliament had deliberately adopted to replace the undefined time limit, could not be said to be said to be a mere breach of directory rule whose non-compliance could be overlooked. Indeed, the acceptance of the position that the corrections in the electoral roll could be made right up till the time of election would re-introduce a confusion which the parliament in its wisdom thought it fit to eliminate by repealing Section 23 and making a provision in sub-section (3) of Section 23 of the Act, but the intention is made manifest by the Report on the third General Elections in India 1962 submitted by the Election Commission India, on the basis of which amendments in the Act were made. The question in point is discussed as follows:-
'Section 23 of the Representation of the People Act, 1950, permits applications for inclusion of names in the electoral rolls being made at any time... From the point of view of the returning officer who has to make various arrangement s for the poll, and also from the point of view of the contesting candidates, it is not desirable that new names should be included in the electoral rolls until practically the last minute. Finality should be given to the electoral roll at some stage. The Commission considers that the suitable date line for this purpose would be the last date for making nominations, and in that case the application could as well be made to the registration officer instead of to the chief electoral officer... In the summary of recommendations of the Commission reproduced from page 121 onward of the Report, sub-clause (iv) of CLAUSE (b) is as follows:- 'At election time, applications for inclusion of names in the electoral roll of a constituency should not be permitted after the last date for making nominations.'
These extracts make it clear what the raison d'etre of the amendment was.
19. Another authority cited by Mr. Sarhadi of Harcharan Singh v. Mohinder Singh, AIR 1968 SC 1500, contains the following passage to which our attention has been particularly directed:-
'The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process, and the Courts will not ordinarily minimise their operation.'
It is suggested by Mr. Sarhadi that the rule of procedure whose breach has been complained of, does not involve any purity in the election process and can, therefore, be overlooked. The passage, read as a whole, does not appear to convey this impression. It is definitely and separately stated by Mr. Justice Shah, speaking for the Court, that the Courts will not ordinarily minimise the operation of rules, and it cannot be contended that this rule of prudence is to be attached only to provisions which safeguard the purity of the election process. Indeed , the rules when framed by competent authority are to be given their fll effect and the Courts, in the words of Mr. Justice shah, 'will not ordinarily minimise their operation.'
20. It needs to be noted that Mr. Sarhadi in support of the result contended for by him placed reliance on a Full Bench decision of the Allahabad High Court in Ghulam Mohiuddin v. Election Tribunal, AIR 1959 all 357. There are some passages in this judgment which no doubt tend to reinforce the submissions of the respondents counsel, especially in the observation of Raghubar Dayal J., that:-
'The vote of a person having a right to vote is therefore a lawful vote, and it is therefore not open to the Election Tribunal to go behind the electoral roll to determine whether the entry of the person's name in the electoral roll was rightly made or not.' The judgment was also approved by the Full Bench of this Court in Roop Lal Mehta's case, 69 Pun LR 618 = (AIR 1968 Punj 1 (FB). It is not possible, however, in the context of the amendment introduced in Act No. 47 of 1966 to attach only a minor and secondary role to the order for inclusion passed in the teeth of the mandatory requirement that the order should be made before the date of nominations. Like wise, in a Division Bench of the Patna High Court (Sahai and Untwalia JJ.) in Ram Swaroop Prasad Yadav v. Jagat Kishore Prasad Narain Singh, (1959) 17 Ele LR 110 (Pat), the matter dealt with there was under the unamended provision of Section 23 of the Act. The name of a person had been included in the electoral roll by the electoral registration officer and it was held that the power having been exercised under subsection (3) of Section 23 or the Act directing a person's name to be included in the roll, 'he becomes immediately in titled to exercise the right of franchise, and he is not deprived of such a right merely because the office staff of the Electoral Registration Officer did not paste or stitch the sudhi patra to the electoral roll as finally published.'
The distinguishing feature of that case is manifest and the ruling based on the unamended section cannot be pressed into service to support the proposition that na order passed after the date of nominations by an electoral registration officer for the inclusion of a name must remain unchallenged and unchallengeable.
21. I would, therefore, answer the question formulated at the outset in the negative and would hold hat this Court can go into this question, the matter being essentially one of the jurisdiction of the authority whose order is impugned. In the result, the case would be sent back to the learned Judge for disposal of the recriminatory petition.
Harbans Singh, J.
22. I have had the advantage of going though the order proposed by my learned brother Shamsher Bahadur J., and agree with answer returned and the reasons given.
23. Under the unamended sub-section (2) of Section 23, there were two different officers viz., Electoral Registration Officer and the Chief Election Officer who were vested with the jurisdiction to issue a direction for the inclusion of a name, not already included in the electoral roll of a constituency. Their respective jurisdiction was circumscribed by the point of time when an application for the inclusion was made. If it was made prior to the date of the notification calling upon the constituency to elect a member, it was the electoral Registration Officer who had the jurisdiction to issue the requisite direction; and if ti was made after that date, it was the Chief Election Officer who could do it. If after the date of the notification an application is entertained and a direction issued by the electoral Registration Officer, such an act would not only be merely illegal, but would be altogether without jurisdiction for the simple reason thatafter the date in point, it is only the Chief Election Officer who could do so.
24. I find no difficulty in coming to the conclusion that the Electoral Registration Officer in issuing a direction for inclusion of the name of Hari Singh, after the last date of nomination, acted against the express prohibition contained in sub-section (3) of Section 23 of the Act of 1950 and as such his act was beyond the jurisdiction vested in him, under Sections 22 and 23 to amend, alter, remove or add to the Electoral list.
25. Under the amended sub-section (2) of Section 23, there is only one officer - Electoral Registration Officer - who is invested with the jurisdiction of including a name and there is no limitation of time up to which he can receive and entertain an application. However, under sub-section (3), Electoral Registration Officer is specifically debarred from issuing any direction either in respect of inclusion under sub-section (2) of Section 23 or of otherwise ordering amendment, transposition or deletion, as envisaged by Section 23, after the last date of nomination and before the completion of the election in that constituency.
26. Thus the Electoral Registration Officer is invested with jurisdiction to do the various acts enumerated in Sections 22 and 23 upto the last date of nomination and then after the completion of election. Neither he nor any other higher officer is invested with power to do nay of such acts during the period intervening between the last date of nomination and the date of completion of the election. In fact there is a peremptory prohibition against making any type of alteration in electoral roll during this crucial period, when the Returning officer as well as the candidate or candidates should be sure of the finality of the list as it exists on the last date of nomination. If the Electoral registration Officer. Does issue a direction during this period. During which he is not authorized to do so, his act will clearly be without jurisdiction and any addition or alteration so ordered by him will be treated as non-existent.
27. With utmost respect to my learned brothers, I venture to disagree with their conclusion that the registration of Hari Singh's name in the electoral roll by the Electoral Registration Officer against the provisions of the Representation of the people Act, 1950 (hereinafter referred to as the '1950 Act) is wholly without jurisdiction and , therefore, non est. I do not agree that Hari Singh could not cast his vote and that the vote, he case, is void.
28. I indicated tentatively my referring order, which may be read as part of this order . In addition to the reasons stated therein, I now state a few more and better reasons for holding that the inclusion of the name in the electoral roll against the provisions of Section 23(3) of the 1950 Act cannot be held to be without jurisdiction. It is un disputable that the inclusion of his name in electoral roll is illegal. But every illegall order is not an order without jurisdction. When the Electoral Registration Officer was moved, that is on the 8th of March, 1968, for the inclusion of the name of Hari Singh, admittedly, the Electoral Registration Officer had the jurisdiction to allow the application because the application was made before the date of nomination, namely, the 12th of March , 1968. The Constituency was called to elect its representative on the 5th of March, 1968. The order undoubtedly was passed after the 12th March, 1968; and on this basis it is urged that the order is wholly without jurisdiction when the application, on the basis of which the order had to be passed, was made when the Electoral Registration Officer had the jurisdiction to entertain it. If he had passed the order on or before the 12th of March, 1968, it is not disputed, it would be within his jurisdiction. But if he passes the order on an application, he was competent to deal with, after the 12th of March , 1968, the order would become without jurisdiction. I do agree with my learned brothers that after the 12th march, 1968, the order on an application, he was competent to deal with, after the 12th of March, 1968, the order would become without jurisdiction. I do agree with my learned brothers that after the 12h March, 1968, the Electoral Registration Officer could not pass the order. If he did so, it will be pass the order. If he did so, it will be illegal being contrary to the statute. But if he does disobey the mandate of the statute, can it be said that his order is without jurisdiction? In my opinion, this result cannot follow. The position might have been different if the application under section 23 had been made after the 12th of March, 1968, for the inclusion of the name in the electoral roll, on the basis of which the poll had to take place in pursuance of the notification of the 5th of March, 1968. But that is not the case here. The application was made before the relevant date, that is the 12th off March, 1968. The Registration Electoral Officer thus had the jurisdiction to entertain it and decide it; and the mere fact, that he defers his decision, will not oust his jurisdiction, Supposing, he had passed the order after the 12th of March, 1968, that the application had become infructuous, could it be said that such an order is without jurisdiction? The answer will be - 'NO' . His order will be perfectly legal. But if he allows the application after the relevant date ; but not without jurisdiction.
29. The second reason, which prevails with me, for holding that the vote of Hari Singh is not void, is that only those votes are void which fall within the ambit of Section 62 of the Representation of the People Act, 1951 (hereafter referred to as the '1951 Act). The question, whether Hari Singh's vote is void or not, has arised in an election petition filed under the 1951 Act. The grounds for declaring the election void are void are stated in Section 100; and according to the learned counsel for the petitioner, Hari Singh's vote is void under Section 100(1)(d)(iii) for the reason already stated. The argument is that his vote was void and has been improperly received. The reason, why the vote is stated to be void, is that his name has been brought upon the electoral roll in direct violation of Section 23(3) of the 1950 Act; and, therefore, it should be assumed that the name of Hari Singh did not exist on the electoral roll. This argument loses sight of the fact that the name of Hari Singh was on the electoral roll, as furnished to the Presiding Officer. It cannnot be disputed that that name had been brought upon the electoral roll illegally. But once the name of a person has been brought upon the electoral roll, he is entitled to vote in view of the provisions of Section 62(1) of the 1951 Act. Sub-sections (2)., (3), (4) and (5) of Section 62 of the 1951 Act are an exception to sub-section (1). Even if the name of a person is entered in the electoral roll, he cannot vote, if the provisions of sub-sections (2), (3), (4) and (5) apply to him. It is of considerable significance that sub-section (2) refers to Section 16 of the 1950 Act, but not to Section 23. If the intention of the Legislature was that a person, whose name is entered in the electoral roll in opposition to Section 23 of the 1950 Act was not entitled to vote, this would have been so mentioned in Section 62 of the 1951 Act. There is no definition of 'elector' in the 1950 Act. But 'elector' has been defined in Section 2(e) of the 1951 Act, which reads thus:-
'elector', in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of the Representation of the People act, 1950 (43 of 1950)'.
Section 16 of the 1950 Act provides that the following persons shall be disqualified for registration-
A person who is - (a0 not a citizen of India; or
(b) of unsound mind;
(c) for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections'.
Section 17 of the 1950 Act provides that no person shall be registered in more than one Constituency. Section 18 of the 1950 Act provides that no person shall be registered more than once in any Constituency. Section 19 of 1950 Act provides that no person would be entitled to be registered, if he is less than twenty-one years of age and is ordinarily resident in a Constituency. The provisions of Sections 16, 17, 18 and 19 of the 1950 Act are mandatory because the word 'shall' is used. But the Legislature in the 1951 Act, while enacting Section 62, only thought fit to take away the right to vote of a person entered in the electoral roll, who could not be so entered in violation of the provisions of Sections 16, 17 and 18 of the 1950 Act., but not those who had been entered against the provisions of Sections 19 and 23 of the 1950 Act. But if somehow or the other, the name of a person does appear on the electoral roll, as prepared under the 1950 Act by a mistake on th apart of the person authorized with its preparation, the only method to correct it is as provided in the 1950 Act by a mistake on the part of the person authorized with its preparation, the only method to correct it is as provided in the 1950 Act. If those mistakes persist, the person so entered in the electoral roll as an elector has the right to vote unless Section 62 stands in his way. The observations of the learned Judges in the Allahabad Full Bench in AIR 1959 All 357, which were followed by a Full Bench of this Court in 69 Pun LR 618=(AIR 1968 Punj 1 (FB)), 'fully support my conclusion. The observations of Raghubar Dayal J. (as he then was), who presided over the Full Bench, are quoted below for facility of reference:-
'.....The age and residence therefore were considered as conditions for registration. A person got the right to be enrolled or was qualified to be enrolled in an electoral roll if he was not less than 21 years of a ge and if he had resided for the prescribed period in a particular constituency.
A person's non-residence for the prescribed period or not attaining the age of 21 years is not his disqualification for registration but amounts to his being not qualified to be registered. So long as one is not qualified no question of disqualification arises. According to Murray's New English Dictionary, 'disqualification' means 'the action of depriving of requisite qualifications' and 'to disqualify' means 'to deprive of the qualifications required for some purpose'. A disqualification is therefore not identical with the absence of qualification.
It is further to be noticed that sub-section (2) of Section 16 of the Representation of the People Act provides for the striking off the name from the electoral roll of a person who becomes disqualified after registration and does not provide for the striking off the name of a person who was disqualified but whose disqualification could not be discovered at the time of entering his name in the electoral roll. His disqualification could be considered by the Election Tribunal if he had exercised his right to vote on the basis of the entry of his name in the electoral roll of a particular constituency.
The Election Tribunal held that the reverse of the qualifications mentioned in Sections 17, 18 and 19 of the Representation of the People Act would amount to a disqualification. This view finds support from the case of Prabhakar Yajnik v. District Magistrate, Bulandshahr, 1953 All LJ 667= (AIR 1954 All 415) wherein Mootham J. (as he then was), had to consider the scope of the expression 'disqualification' in Section 12-D of the Municipalities Act and said at page 669 (of All LJ)= (at page 417 of AIR ).
'The conclusion which I have reached, although not without some hesitation, is that in Section 12-D of the Municipalities Act, the word 'disqualified' is used as meaning the opposite to 'qualified', that is as meaning 'not qualified.'
With respect, I do not agree with this interpretation for the reasons mentioned above. It is true that the name of a person who suffers from any of the disqualifications mentioned in Section 16 will not be entered in the electoral roll though he satisfies the conditions of registration and therefore the result would be the same as would be if the person did not satisfy the conditions of registration mentioned in Section 19. But the rationale of the non-entry is different in the two cases.
In the former case a person satisfies the conditions and therefore has the right to have his name entered in the electoral roll and it is due to the disqualification that his name is not entered. Notionally it can be said that on the basis of his right his name had been entered but had been removed on account of the disqualification, though this will bot be exactly correct as ub-section (2) of Section 16 does not provide for the removal of the name of a person who had the disqualification prior to the registration of his name in the electoral roll..........................................'
It will be clear from sub-section (1) of Section 62, that the right to vote is conferred only on those persons who are entered in the electoral roll. In other words, the right to vote has been conferred simply by virtue of the fact that their names are entered in the electoral roll. Therefore, it would not be possible to go behind the roll either for proving that a person's name should have been entered but has been wrongly omitted or for showing that a person's name should not have been entered and has been wrongly entered. But, as observed by Chaturvedi. J., the Legislature did not stop at sub-section (1) and, following the English practice, enacted sub-section (2), that-
'No person shall vote at an election in any constituency if he is subject to any of the disqualification referred to in Section 16 of the 1950 Act.'
Not only that, the legislature went further and brought in the prohibition of Sections 17 and 18 of the 1950 Act and made those provisions at par with Section 16 of the 1950 Act. It is significant that the error in the initial inclusion of the names against the provisions of Sections 16, 17, 18 and 19 of the 1950 Act could be made irrespective of the provisions of Section 23 of the 1950 Act. Section 23 of the 1950 Act is merely enacted to set right the defects in the electoral roll or to provide the omissions in the same. But it does not stand on a higher footing than Section 19 of the 1950 Act. All that can be said is that where the provisions of Section 23 or Section 19 of the 1950 Act have not been followed, there has been an illegality in the preparation of the electoral roll. But it is not every illegality which is fatal. And similarly, every illegality cannot lead to the conclusion that what has been done has been done without jurisdiction. In either event the electoral roll has been prepared by the competent authority, but against the statutory provisions of law. But only those illegalities can be taken notice of which are covered by S. 62 of the 1951 Act and not otherwise. It appears to me that this result is inevitable if the preambles of both the Acts are kept in view. The 1950 Act concerns itself with the preparation of the electoral roll etc., whereas the 1951 Act primarily concerns itself with the conduct of elections. While judging the validity of a vote, we are mainly concerned with the conduct of elections and not with the preparations of the electoral roll. It is for this reason that I see no difference in this case and the case of Roop Lal Mehta, 69 Pun LR 618= (AIR 1968 Punj 1 FB). On principle, Roop Lal Mehta's case, 69 Pun LR 618 = (AIR 1968 Punj 1 FB), must govern the present case.
30. The third reason, which has prevailed with me, relates to the interpretation of Section 23. In my opinion, the provisions of this section are directory and not mandatory. If the provisions had been mandatory, Section 23 would have found mention in Section 62 of the 1951 Act. Courts must assume that the authorities prohibited to do a thing will not do it. But if they do it, the violation of prohibition may be such that it does not, in any manner, either confer an right or take away a right of a person who did not possess it or possessed it. It is common ground that Hari Singh was qualified to be an elector. And if his name has been brought on the electoral roll and he has voted, he has not exercised a right which did not vest in him. In my opinion, the principle laid down in the decisions in J. K. Gas Plant . v. Emperor, AIR 1947 FC 38; AIR 1954 SC 210 and AIR 1956 SC 140, would apply. In all these cases, the language of the statute was mandatory and yet keeping in view the purpose of the Act and the object to be achieved, their Lordships held that the word 'shall' can be read as 'may'. In other words, the statute was held to be directory and not mandatory.
31. After giving the matter my careful consideration, I am of the view that it cannot be said that Hari Singh was not entitled to vote and the vote cast by him is void. The view , I have taken of the matter, finds full support from the decision of the Supreme Court in B.M. Ramaswamy v. B. M. Krishanmurthy, AIR 1963 SC 458, and of this Court in Roop Lal Mehts's case, 69 Pun LR 618 = (AIR 1968 Punj 1 (FB)).
32. Case remanded.