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Surendrasinhaji Jorawarasinhji Jhala Vs. U.M. Bhatta and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. No. 43 of 1967
Judge
Reported inAIR1969Guj292
ActsConstitution of India - Articles 226, 227, 324, 325, 326, 327, 328 and 329; Representation of the People Act, 1950 - Sections 14 to 25, 26(2), 28, 30 and 81; Registration of Electors Rules, 1960 - Rules 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 to 24, 25, 26, 26(3) and 27; Representation of the People (Amendment) Act, 1951 - Sections 81; Income-tax Act; Wealth-tax Act; Expenditure-tax Act; Gift-tax Act
AppellantSurendrasinhaji Jorawarasinhji Jhala
RespondentU.M. Bhatta and ors.
Appellant Advocate H.P. Shukla and; I.M. Nanavati, Advs.
Respondent Advocate K.H. Kaji, Ag. Adv. General,; K.L. Talanis, Addl. Govt. Pleader,;
DispositionPetition allowed
Cases ReferredMunicipal Corporation of Greater Bombay v. Pancham
Excerpt:
election - electoral roll - articles 226, 227, 324, 325, 326, 327, 328 and 329 of constitution of india, sections 14 to 25, 26 (2), 28, 30 and 81 of representation of the people act, 1950, rules 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 to 24, 25, 26, 26 (3) and 27 of registration of electors rules, 1960, section 81 of representation of the people (amendment) act, 1951, income-tax act, wealth-tax act, expenditure-tax act and gift-tax act - petitioner made application to electoral registration officer for inclusion of his name in electoral roll of x assembly - petitioner's name included by officer's order - respondent made appeal to chief electoral officer (ceo) against inclusion of petitioner's name - ceo given order that petitioner not entitled to include his name in electoral roll of x assembly -.....bhagwati, j.1. yesterday, on the conclusion of the arguments, we passed an order allowing the petition and making the rule absolute by issuing a writ of certiorari quashing and setting aside the order of the first respondent dated 12th january 1967. we now proceed to state our reasons for making the order.2. the petitioner is the erstwhile ruler of the quondam state of wadhwan. though according to the petitioner, he was ordinarily resident in wadhwan, his name did not appear in the electoral roll for the wadhwan assembly constituency and he, therefore, made an application to the electoral registration officer for inclusion of his name in the electoral roll of the wadhwan assembly constituency under section 23 of the representation of the people act, 1950. the application was on a printed.....
Judgment:

Bhagwati, J.

1. Yesterday, on the conclusion of the arguments, we passed an order allowing the petition and making the rule absolute by issuing a writ of certiorari quashing and setting aside the order of the first respondent dated 12th January 1967. We now proceed to state our reasons for making the order.

2. The Petitioner is the erstwhile Ruler of the quondam State of Wadhwan. Though according to the petitioner, he was ordinarily resident in Wadhwan, his name did not appear in the electoral roll for the Wadhwan Assembly Constituency and he, therefore, made an application to the Electoral Registration Officer for inclusion of his name in the electoral roll of the Wadhwan Assembly Constituency under Section 23 of the Representation of the People Act, 1950. The application was on a printed form which was supplied by the Electoral Registration Officer on a request being made in that behalf, and it was supported by one Trambaklal Mohanlal Dave, who was an elector on the electoral roll of the Wadhwan Assembly Constituency. The application was made on 15th December 1966 and on 17th December 1966 the Electoral Registration Officer directed that one copy of the application be posted in some conspicuous place in his office together with notice inviting objections to the application. The third respondent who was also an elector on the electoral roll of the Wadhwan Assembly constituency thereupon preferred his objections against the inclusion of the name of the petitioner in the electoral roll on 23rd December 1966. The hearing of the application was fixed on 26th December 1986 and on that day an affidavit of the petitioner was filed in support of the application. The third respondent also filed two affidavits, one dated 23rd December 1966 and the other dated 26th December 1966. On the next date of the hearing, namely, 3rd January 1967, the petitioner raised a preliminary objection that the inquiry which was being held was not an inquiry under Rule 20 of the Registration of Electors Rules, 1960, and, therefore, though the objections of the third respondent might be considered, the third respondent was not entitled to be heard by the Electoral Registration Officer. This preliminary objection was rejected by the Electoral Registration Officer by an order dated 3rd January 1967 and he immediately thereafter proceeded to hold the inquiry for the purpose of determining whether the application should be granted or not. The petitioner gave evidence and so did the third respondent, one Chandrakant Karunashankar, the Revenue Aval Karkun. The question debated before the Electoral Registration Officer was whether the petitioner was ordinarily resident in Wadhwan Assembly Constituency so as to be entitled to have his name included in the electoral roll for that constituency and on this question the Electoral Registration Officer, after considering all the facts came to the conclusion that the petitioner was ordinarily resident in Wadhwan and he accordingly, by an order dated 4th January 1967, directed the inclusion of the name of the petitioner in the electoral roll for the Wadhwan Assembly Constituency at Serial No. 731 in Ward No. 9 Part 71. The third respondent thereupon preferred an appeal to the Chief Electoral Officer on 5th January 1967. At the hearing of the appeal on 12th January 1967, the petitioner raised a preliminary contention against the maintainability of the appeal at the instance of the third respondent, but the preliminary contention was negatived and the appeal was heard on merits. The Chief Electoral Officer by his order dated 12th January 1967, allowed the appeal on two grounds. One was that the application made by the petitioner was not in the prescribed form as required by Rule 26 of the Registration of Electors Rules, 1960, and the other was that the petitioner was not Ordinarily resident in Wadhwan and was, therefore, not entitled to have his name included in the electoral roll for the Wadhwan Assembly Constituency. This decision of the Chief Electoral Officer is challenged on the present petition which is filed under Art. 226 of the Constitution.

3. When the hearing of the petition commenced, a preliminary objection was raised on behalf of the third respondent that the petition was not maintainable as the High Court had no jurisdiction to interfere with the order of the Chief Electoral Officer under Article 226 of the Constitution. Now Article 226 confers power on the High Court to issue an appropriate writ to any person or authority within its territorial jurisdiction in terms absolute and unqualified and the Chief Electoral Officer functioning within the territorial jurisdiction of the High Court would fall within the sweep of that power. This power conferred by Article 226 being constitutional power, if we are to recognise or admit any limitation on this power, that must be found in some provision of the Constitution itself. Mr. S.K. Zaveri, on behalf of the third respondent, contended that such limitation has been imposed by two provisions of the Constitution, one being Article 329(b) and the other being Article 829 (a) read with Section 30 of the Representation of the People Act, 1950. We will first examine the contention based on Article 329(b) for that was the principal contention urged before us.

4. Article 329(b) occurs in part XV of the Constitution which is headed 'Elections' and it runs as follows:--

'329. Notwithstanding anything in this Constitution--

XXX XXX XXX

(b) no election to either House of Parliament or to the House or either House of the Legislature of State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature'.

In view of the non obstante clause with which Article 329(b) Commences, it is apparent that if this Article applies, the power of the High Court to issue writ under Article 226 would be excluded. It is, therefore, necessary to consider whether the present petition is a proceeding in which an election can properly be said to be called in question so as to attract the applicability of Article 329(b), what is challenged in the petition is the order of the Chief Electoral Officer refusing to include the name of the petitioner in the electoral roll for the Wadhwan Assembly Constituency and the question is whether that amounts to questioning an election within the meaning of Article 329(b). The determination of his question depends on the true meaning and import of the word 'election' as used in that Article. Now it is well settled as a result of the decision of the Supreme Court in N.P. Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64, that the word 'election' has been used in Part XV of the Constitution, not in the narrower sense of 'the final selection of candidate which may embrace the result of the poll when there is polling or particular candidate being returned unopposed when there is no poll' but in the wide sense to connote 'the entire process to be gone through to return a candidate to the Legislature'. It embraces the whole procedure whereby an elected member is returned, whether or not it be found-necessary to take a poll. It is, as pointed out by Chagla C. J. in Shankar v. Returning Officer, Kolaba, AIR 1952 Bom 277, 'one whole continuous integrated proceeding and every step taken in it is a part of the election' and what is prohibited by Article 329(b) is the calling in question of any aspect or stage of this process of election. That can be done only by an election petition presented before the High Court, after the entire process of election culminating in a candidate being declared elected has been gone through. On such election petition being filed, the High Court would be properly bound to inquire into and decide all doubts and disputes arising out of or in connection with' the election, irrespective of the stage in the entire election process to which the doubts and disputes relate. Vide the observations of S.R. Das C. J., in N.B. Khare v. Election Commission of India, AIR 1957 SC 694 at para. 7. But at no intermediate stage can a step taken in the process of election be questioned and in no other manner. This rule is founded on the well-recognised principle of Election Law, Indian as well as English, that election should not be held up and that the person aggrieved should not be permitted to ventilate his individual interest in derogation of the general interest of the people which requires that election should be gone through according to the time schedule. It is, therefore, indisputable that if the proceeding for inclusion of the name of a person in the electoral roll under Section 23 of the Representation of the People Act, 1950, is a stage in the process of election, the decision of the Electoral Registration Officer or the Chief Electoral Officer in such proceeding would not be open to scrutiny in a petition under Article 226 but would be liable to be challenged only by an election petition presented to the High Court after the entire process of election is concluded and a candidate is declared elected.

5. But the question is whether the proceeding for inclusion of the name or a person in the electoral roll under Section 23 is a stage in the process of election by which an elected member is returned to the Legislature or, putting the same question ID more general terms: is the preparation, revision or amendment of the electoral roll a stage in the election process as contemplated under Article 329(b)? The answer to the question depends on a consideration of the provisions of Articles 324 to 329 and the Representation of the People Act, 1950 and the Representation of the People Act, 1951, Articles 324 to 329 occur in Part XV headed 'elections' and Article 324 which is the first article in the group provides inter alia that the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State held under the Constitution, including the appointment of election tribunals for the decision of doubts and disputes arising out of or in connection with elections to Parliament and to the Legislatures of States shall be vested in the Election Commission. This article makes a distinction between the preparation of the electoral rolls and the conduct of elections and regards the two as separate matters. The preparation of the electoral roll is obviously a stage anterior to the conduct of the election and it does not form part of the process of election. This view receives support from the provisions enacted in Articles 327 and 328. Article 327, confers power on the Parliament to make law with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. The preparation of electoral rolls is brought within the purview of the article by the inclusive clause and this is indicative of the fact that the preparation of electoral rolls would not otherwise be comprehended within the expression :--

'all matters relating to or in connection with elections'.

It is of course not an uncommon legislative practice to introduce an inclusive clause not for the purpose of adding to the scope and ambit of the statutory provision but ex majori cautela for the purpose of removing any doubt or ambiguity which may arise in the construction of the statutory provision and, therefore, it would not be safe to conclude merely from the existence of the inclusive clause in the article that the preparation of electoral rolls is not included in the expression 'all matters relating to or in connection with elections'. But we find that there is a cogent reason for taking the view that the inclusive clause was introduced for the purpose of extending the scope and ambit of the provision enacted in the article and not merely for the purpose of rendering certain what might otherwise appear to be uncertain. When we turn to Article 328, we find that the power to make law which is conferred on the Legislature of a State is 'with respect to all matters relating to or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses' and the inclusive clause in this article does not refer to the delimitation of constituencies. If the inclusive clause were introduced in Article 327 merely by way of abundant caution and the matters set out in inclusive clause were even otherwise comprehended within the expression 'all matters relating to, or in connection with elections', there is no reason why the Constitution-framers while enacting Article 328 should have omitted reference to the delimitation of constituencies in the inclusive clause introduced in that article. The reason which induced the Constitution-framers to include the delimitation of constituencies in the inclusive clause in Article 327 by way of abundant caution would equally apply in the enactment of the inclusive clause in Article 328 and it is reasonable to assume that if the Constitution-framers introduced the matters set out in the inclusive clause in Article 327 by way of abundant caution, they would not have omitted to set out one of those matters in the inclusive clause when they came to enact the very next Article, namely 328. The omission of reference to the delimitation of constituencies in the inclusive clause in Article 328, is inexplicable on the hypothesis that the matters set out in the inclusive clause in Article 327 were comprehended within the expression 'all matters relating to, or in connection with elections' and that the inclusive clause was merely introduced by way of clarification. The only rational and intelligible explanation for the omission of the reference to delimitation of constituencies in the inclusive clause in Article 328 appears to be that the matters sat out in the inclusive clause in Article 327 were not covered by the expression 'all matters relating to, or in connection with elections' but were additional matters which were sought to be brought within the compass of that Article and since the Constitution-framers while enacting Article 328 conferring power on the Legislature of State, did not think it proper to empower to Legislature to make law with respect to one of those matters, namely, the delimitation of constituencies, they dropped the delimitation of constituencies from the inclusive clause in Article 328. The preparation of electoral rolls and the delimitation of constituencies would, on this view, be not covered by the expression 'all matters relating to, or in connection with elections' in Articles 327 and 328. And this would appear to be so even otherwise, for the delimitation of constituencies and the preparation of electoral rolls are matters arising prior to the process of election and they are not matters relating to, or in connection with any stage in the election. The expression all matters relating to, or in connection with elections', obviously refers to matters arising out of or connected with any stage of the election process. Vide the observations of the Supreme Court in AIR 1957 SC 694 at p. 697 (supra). It would, therefore, appear to follow that though the word 'election' as used in Article 329(b) refers to every stage in the process of election, the preparation of electoral rolls is not a stage in the election process but is a stage anterior to the election process. This appears to us to be the proper view on a reading of Articles 324 to 329 occurring in Part XI of the Constitution. But we find that this view is also supported by the Representation of the People Act, 1950, and the Representation of the People Act, 1951, made by the Parliament in exercise of its power under Article 327 of the Constitution.

6. When we turn to these two statutes, we find that they also make a distinction between what may be called the preparatory stages prior to the process of election and the stages which actually constitute the process of election. The Representation of the People Act, 1950, as its preamble shows, is enacted to provide for the allocation of seats and the delimitation of constituencies for the purpose of election to the House of the People and the Legislatures of States, the qualifications of voters at such elections, the preparation of electoral rolls, the manner of filling seats in the Council of States to be filled by Representatives of Union Territories and matters connected therewith, Part I of the Act deals with preliminary matters, such as, short title and definitions. Part II contains provisions relating to allocation of seats and delimitation of constituencies in the House of the People, the State Legislative Assemblies and the State Legislative Councils. Part II-A specifies the hierarchy of officers who are to discharge functions under the Act. Part II-B provides for electoral rolls for Parliamentary Constituencies, Part III for electoral rolls for Assembly Constituencies and Part IV for Electoral rolls for Council Constituencies. Part IV-A deals with the manner of filling seats in the Council of States to be filled by Representatives of Union Territories and Part V contains general provisions including inter alia a provision conferring rule-making power on the Central Government. The election of seats, the delimitation of constituencies and the preparation of electoral rolls which constitute the preparatory stages for the election are thus dealt with in this Act. The Representation of the People Act, 1951, on the other hand is intended to provide, as its preamble shows, for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. Part I contains preliminary provisions and Part II contains provisions dealing with qualifications and disqualifications for membership of Parliament and State Legislatures. The Sections in Part III provide for issue of notifications for general elections to the Parliament and State Legislatures and Section 15 which is the section with which we are concerned in this case states that a general election shall be held for the purpose of constituting a new Legislative Assembly on the expiration of the duration of the existing Assembly or on its dissolution, and for that purpose the Governor shall, by one or more notifications published in the Official Gazette of the State, call upon all Assembly constituencies in the State to elect members in accordance with the provisions of the Act and the Rules and orders made under the Act. Part IV provides for the administrative machinery for the conduct of elections and Part V deals exhaustively with the subject of conduct of elections. This part consists of several Chapters dealing with the different stages in the process of election. It is not necessary to refer to the various Sections in these Chapters but it is sufficient to reproduce Section 30 which sets out the different stages in the process of election for which detailed provision is made in the other Sections. Section 30 enacts that as soon as the notification calling upon a constituency to elect member or members is issued, the Election Commission shall by notification is the Official Gazette, appoint,--.

(a) the last date for making nominations, which shall be the seventh day after the date of publication of the first mentioned notification or, if that day 'is a public holiday, the next succeeding day which is not a public holiday.

(b) the date for the scrutiny of nominations, which shall be the day immediately following the last date for making nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday;

(c) the last date for the withdrawal of candidatures, which shall be the second day after the date for the scrutiny of nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday;

(d) the date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the twentieth day after the last date for the withdrawal of candidatures; and

(e) the date before which the election shall be completed.

Part VI contains provisions for resolution of disputes regarding elections and the Sections in Part VII deal with the subject of corrupt practices and electoral offences. Part VIII is headed 'disqualifications' and Part IX makes provisions in regard to 'Bye-elections'. Part X contains various miscellaneous provisions while Part XI contain's general provisions including a provision conferring rule-making power on the Central Government. It will be seen from the brief resume of the provisions of this Act that it deals with the various stages in the process of election commencing from the issue of the notification of general election under the relevant Section in Part III and ending with the declaration of the result of the election as also with the resolution of doubts and disputes arising out of or in connection with the elections. Matters arising out of or connected with all stages of the election process are provided for in this Act and it is clear that according to the provisions of this Act, the election process commences on the issue of a general notification under the relevant Section in Part III and ends with the declaration of the result of the election. The process by which a candidate is returned to the Legislature, either as a result of the poll when there is polling or unopposed when there is no poll, is initiated by the issue of the general notification under the relevant Section in Part III. It is only when such notification is issued that there can be any question of holding an election and the process of election for returning candidates to the Legislature cannot, therefore, commence before the issue of such notification, when the notification is issued, the Constituency is called upon to elect candidates and the process of election then, commences moving on from one stage to another until the declaration of the result of the election. Section 30 clearly indicates the various stages in the process of election and these stages arise subsequent to the issue of the notification. It would thus be seen that the Representation of the People Act, 1950, deals with various anterior stages such as allocation of scats, the delimitation of constituencies and the preparation of electoral rolls while the various stages in the process of election and matters arising out of or connected with those stages are dealt with in the Representation of the People Act, 1951. The preparation of electoral rolls, is, therefore, clearly not a, stage in the process of election but is an anterior stage and the process of election commences only on the issue of a notification under the relevant Section of Part III and ends with the declaration of the result of the election. This view which we are inclined to take on principle is wholly supported by a decision of the Supreme Court in Hari Vishnu v. Ahmad Ishaque, AIR 1955 SC 233. The question which arose in that case was whether Article 329(b) took away the jurisdiction of the High Court under Article 226 to interfere with an order made by the Election Tribunal and while dealing with that question, Venkatarama Ayyar J., speaking on behalf of a full Court of seven Judges observed;

'In AIR 1952 SC 04, it was held by this Court that the word 'election' in Article 329(b) was used in a comprehensive sense as including the entire process of election commencing with the issue of a notification and terminating with the declaration of election of a candidate, and that an application under Article 220 challenging the validity of any of the acts forming part of that process would be barred.'

It is, therefore, impossible to regard the preparation of the electoral roll as a stage in the process of election. If the contentions; urged on behalf of the third respondent were accepted, the consequence would be that even delimitation of constituencies and preparation of the electoral roll would be stages in the election process and we would be living perpetually in a process of election. The process of election would on this contention commence on the delimitation of the constituencies and would continue thereafter indefinitely and apart from that even when an application is made by a person for inclusion of his name in the electoral roll immediately on the conclusion of an election and long before another election is due, that would be liable to be regarded as a stage in the process of election. It must be remembered that when Article 329(b) uses the word 'election' that word is not used to mean election in the abstract but a particular election and what the article provides is that no stage in that election shall be questioned in any manner other than that provided in the article. The question can, therefore, only be when did that particular election commence and what were the stages of that election? And if the question is approached from this point of view, it is clear that the delimitation of constituencies or the preparation, revision or amendment of the electoral roll cannot be regarded as a stage in the process of any particular election. The preliminary contention based on Article 329(b) must, therefore, be rejected.

7. The second branch of the argument based on Article 329(a) read with Section 30 of the Representation of the People Act, 1950, is equally unsustainable. Section 30 provides that no Civil Court shall have jurisdiction,

(a) to entertain or adjudicate upon any question whether any person is or is nol 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.

The argument was that this section on a plain natural construction of its words was sufficiently wide to take within its broad sweep even the High Court exercising its jurisdiction under Articles 226 and 227 and the jurisdiction of the High Court under Articles 226 and 227, was, therefore, excluded in respect of the questions set out in Clauses (a) and (b) of the section and since the question arising in the petition was one falling within Clause (a) of the section, the High Court had no jurisdiction to entertain the petition under Articles 226 and 227. Now for the purpose of this argument we will assume that the petition involves adjudication of a question whether the petitioner was entitled to be registered in the electoral roll for the Wadhwan Assembly constituency and the question arising in the petition is, therefore, one covered by Clause (a) of Section 30 but the exclusion of the jurisdiction of the Civil Court provided in Section 30 cannot operate to oust the power of the High Court under Articles 226 and 227 to issue writ against the Chief Electoral Officer if the facts and circumstances of the case so warrant. The remedy under Articles 226 and 227 is a constitutional remedy and it cannot be taken away by any enactment of the Legislature. To the extent to which any legislative enactment conflicts with this constitutional remedy, it must give way and the constitutional remedy can be enforced notwithstanding. But, contended the third respondent. Section 30 was placed beyond challenge by Article 329(a) and, therefore, even if it conflicted with Article 226 or Article 227, it must prevail and be given full effect so as to exclude the constitutional remedy under Article 226 or Article 227. This contention is in our view unsustainable and it is defective in that it misreads the language of Article 329(a). That Article provides that notwithstanding anything in the Constitution the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 327 or Article 328, shall not be called in question in any Court. The law which enjoys immunity from challenge under this article is law 'relating to the delimitation of constituencies or the allotment of seats to such constituencies' and Section 30 is not such law. It is no doubt true that the Representation of the People Act, 1950 deals with the subjects of delimitation of constituencies and the allotment of seats to such constituencies but those are only two of several subjects dealt with by the Act which also include the preparation, revision and amendment of electoral rolls and Section 30 is a law which relates to the subject of preparation revision and amendment of electoral rolls and not to the subject of delimitation of constituencies or allocation of seats to such constituencies. Section 30 is, therefore, not protected by Article 329(a) and it cannot stand in the way of the petitioner exercising his constitutional remedy under Articles 226 and 227.

8. That takes us to the merits of the petition. Now the first question debated before us was whether the appeal preferred by the third respondent to the Chief Electoral Officer was maintainable. The contention of the petitioner was that under Section 24 of the Representation of the People Act, 1950, no appeal lay at the instance of an objector against an order made by the Electoral Registration Officer directing inclusion of the name of an applicant in the electoral roll under Section 23 of the Act and that the third respondent was, therefore, not entitled to maintain the appeal. This requires an examination of the relevant provisions of the Act and the rules made under the Act. The subject of electoral rolls for assembly constituencies is dealt with in Part III of the Act which comprises Sections 14 to 25. Section 14 defines two terms, namely, 'constituency' and 'qualifying date'. 'Qualifying date', in relation to the preparation or revision of every electoral roll, means the first day of January of the year in which it is so prepared or revised. Section 15 provides that there shall be an electoral roll for every constituency prepared in accordance with the provisions of me Act under the superintendence, direction and control of the Election Commission. Section 16 sets out the disqualifications for registration in an electoral roll. Section 17 declares that no person shall be entitled to be registered in the electoral roll for more than one constituency and even in the same constituency, says Section 18, person cannot be registered more than once. Section 19 lays down the conditions of registration in the electoral roll of a constituency and they are, first, that the person concerned should not be less than twenty-one years of age on the qualifying date; and secondly, that he should be ordinarily resident in the constituency. .Some aspects of the concept of 'ordinarily resident' are dealt with in Section 20. Section 21 then provides for the preparation and revision of electoral rolls and the provision it enacts is, omitting portions immaterial:--

'21. Preparation and revision of electoral rolls :

(1) The electoral roll for each constituency shall be prepared in the prescribed manner fay reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under this Act.

(2) The said electoral roll--

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

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

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

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

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

Section 22 provides the machinery for correction of entries in electoral rolls and it runs as follows:--

'22. Correction of entries in electoral rolls:

If the electoral registration officer for a constituency, on application made to him or on his own motion, 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,

the electoral registration officer shall, subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, amend, transpose or delete the entry : Provided that before taking any action on any ground under Clause (a) or Clause (b) or any action under Clause (c) on the ground that the person concerned has ceased to be ordinarily resident in the constituency or that he is otherwise not entitled to be registered in the electoral roll of that constituency, the electoral registration officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him.'

Section 23 deals with inclusion of names in electoral rolls and it is under this section that the petitioner made an application to the Electoral Registration Officer for including his name in the electoral roll for Wadhwan Assembly Constituency. That section says:

'23. Inclusion of names in electoral rolls.--(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 shall inform 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. xx xx xx xx'

Section 24 provides For appeals in the following terms and that is the section which primarily falls for construction in this petition,

'24. Appeals.--An appeal shall lie within, such time and in such manner as may be prescribed to the Chief Electoral Officer, from any order of the Electoral Registration Officer under Section 22 or Section 23.' The next material section is Section 28 which occurs in Part V. Sub-section (1) of that section confers power on the Central Government to make rules for the purpose of carrying out the provisions of the Act and Sub-section (2) provides that, without prejudice to the generality of the power so conferred, such rules may provide for all or any of the following matters:--

'(b) the preliminary publication of electoral rolls;

(c) the manner in which and the time within which claims and objections as to entries in electoral rolls may be preferred;

(e) the manner in which notices of claims or objections shall be published;

(f) the place, date and time at which claims or objections shall be heard and the manner in which claims or objections shall be heard and disposed of;

(g) the final publication of electoral rolls;

(h) the revision and correction of electoral rolls and inclusion of names therein;'

In exercise of this rule-making power, the Central Government made the Registration of Electors Rules, 1960. Rules 1 to 9 of these Rules provide for certain preliminary matter and state how the electoral roll should be divided into convenient parts and how the names of electors in each part of the roll should be arranged. Rules 10 to 24 then prescribe the procedure to be followed for preparation or the electoral roll. The first step in the procedure is publication of the electoral roll in draft under Rule 10. Then further publicity is to be given to the draft claim for the inclusion of a name in the roll and every objection to an entry therein shall be lodged within a period of 30 days from the date of publication of the roll in draft under Rule 10 and the proviso confers power on the Election Commission to extend this period. Rule 13 prescribes the form for claims and objections and Clause (1) of this Rule says:

'13. Form for claims and objections.---(1) Every claim shall be--

(a) in Form 6;

(b) signed by the person desiring his name to be included in the roll; and

(c) countersigned by another person whose name is already included in that part of the roll in which the claimant desires his name to be included.

XX XX XX XX'

The manner of lodging claims and objections is prescribed in Rule 14 and Rules 15 and 16 deal with the procedure to be followed on receipt of claims and objections, Rule 17 provides that any claim or objection which is not lodged within the period, or in the form and manner specified in the Act, shall bo rejected by the Registration Officer. Rule 18 says that if the Registration Officer is satisfied as to the validity of any claim or objection, he may allow it without further inquiry after the expiry of one week from the date on which it is entered in the list exhibited by him under Clause (b) of Rule 16, but if before any such claim or objection is allowed, a demand for inquiry has been made in writing to the Registration Officer by any person, it shall not be allowed without further inquiry. Where a claim or objection is not disposed of under Rule 17 or Rule 18, Rule 19 says that the Registration Officer shall--

'(a) specify in the list exhibited by him under Clause (b) of Rule 16 the date, time, and place of hearing of the claim or objection; and

(b) give notice of the hearing--

(i) in the case of a claim to the claimant to Form 12;

(ii) in the case of an objection to the inclusion of a name, to the objector in Form 13 and to the person objected to in Form 14; and

(iii) in the case of an objection to particular or particulars in an entry, to the objector in Form 15.'

Rule 20, Clause (1), provides for the holding of a summary inquiry by the Registration Officer into every claim or objection in respect of which notice has been given under Rule 19 and the Registration Officer is required to record his decision on the same and Rule 20, Clause (2), says that at the hearing, the claimant or, as the case may be, the objector and the person objected to and any other person who, in the opinion of the Registration Officer, is likely to be of assistance to him, shall be entitled to appear and be heard, Rule 21 prescribes the procedure to be followed where the Registration Officer finds that due to inadvertence or error during preparation, the names of any electors have been left out of the roll and that remedial action should be taken under the rule, in such a case, the rule says, the Registration Officer shall--

'(a) prepare a list of the names and other details of such electors;

(b) exhibit on the notice-board of his office a copy of the list together with a notice as to the time and place at which the inclusion of these names in the roll will be considered, and also publish the list and the notice in such other manner as he may think fit; and

(c) after considering any verbal or written objections that may be preferred, decide whether all or any or the names should be included in the roll.'

Rule 22 provides for the final publication of the roll and declares that on such publication^ the roll together with the list o amendments shall be the electoral roll of the constituency. Every decision of the registering officer under Rule 20 or Rule 21 is made appealable under Rule 23 but there is a proviso which says:

'Provided that an appeal shall not lie where the person desiring to appeal has not availed himself of his right to be heard by, or to make representations to the Registration Officer on the matter which is the subject of appeal.'

These are the material rules relating to the preparation of electoral rolls. The revision of electoral rolls is 'dealt with in Rule 25. Rule 26 deals with correction of entries in electoral rolls under Section 22 and inclusion of names in electoral rolls under Section 23. It is an important rule and may be reproduced as follows:--

'26. Correction of entries and inclusion of names in electoral rolls.--(1) Every application under Section 22 or Sub-section (1) of Section 23 shall be made in duplicate in such one of the Forms 6, 8, 8A and 8B as may be appropriate and shall be accompanied by a fee of fifty paise.

(2) The fee specified in Sub-rule (1) shall be paid by means of non-judicial stamps.

(3) The Registration Officer shall immediately on receipt of such application, direct that one copy thereof be posted in some conspicuous place in his office together with a notice inviting objections to such application within a period of seven days from the date of such posting.

(4) The Registration Officer shall, as soon as may be after the expiry of the period specified in Sub-rule (3), consider the objections, if any, received by him and shall, if satisfied that the applicant is entitled to be registered in the roll, direct his name to be included therein.

Provided that when an application is rejected by the Registration Officer, ho shall record in writing a brief statement of his reasons for such rejection.'

Rule 27 which bears the marginal note 'Appeals from orders under Rule 26' then proceeds to say that every appeal under Section 24 shall be in the form of a memorandum signed by the applicant. These are the relevant provisions of the Act and the rules having bearing on the determination of the question before us.

9. Now going back to Section 24, it will be immediately noticed that that section merely provides that an appeal shall lie from any order of the electoral registration officer under Section 22 or Section 23 to the Chief Electoral Officer but it does not say who shall be entitled to prefer such appeal. The section does not even say that any person aggrieved by the order shall be entitled to prefer the appeal. The question then is: in the absence of any specification in the section, who has the right to prefer the appeal provided in the section? Mr. S.K. Zaveri on behalf of the third respondent urged that any elector included in the electoral roll for any constituency for the Legislature would be entitled to exercise the right of appeal conferred under Section 24 and this contention was founded on the premise that it is elementary principle of election law that every elector is entitled to question the validity of anything coonected with the election. But this premise is in our view not well founded and along with the premise the contention must fall. There is no general principle of election law that every elector can challenge the validity of anything connected with the election. The law of election is a statutory law and the right of an elector to question anything done or any action taken in connection with an election, either at the pre-election stage or in the process of election, must be found in some provision of the ' statute. No such right inheres in an elector apart from the statute, Mr. S. K. Zaveri relied on Section 81 of the Representation of the People Act, 1951, for the purpose of showing that any elector can file an election petition contesting the validity of an election and urged that this provision clearly recognized the validity of the general principle enunciated by him. But this is futile, Section 81 far from supporting the proposition of Mr. S. K. Zaveri, clearly negatives it. Any elector can undoubtedly challenge the validity of an election by filing an election petition under Section 81 but that he can do not because of any inherent right in him as an elector but because such right is expressly conferred upon him by the section. Mr. S. K. Zaveri also relied on Section 22 read with Rule 26 but that also does not help the argument of the 3rd respondent. Section 22 read with Rule 26 confers right on an elector to make an application to the Registration Officer for correcting an entry in the electoral roll for a constituency but the elector who can make this application is not any elector for the Legislature but only an elector for the same constituency. Moreover, this right is conferred expressly by the terms of Section 22 read with Rule 26 and does not rest on any supposed general principle of election law. An elector included in the electoral roll for a constituency would be interested in the correctness and purity of the electoral roll and he is, therefore, given the right to move the Registration Officer for correction of an entry in the electoral roll under Section 22 read with Rule 28. He would have no such right apart from Section 22 read with Rule 26, We cannot, therefore accept the general proposition that every elector has an inherent right to challenge the validity of anything connected with the election and hold on the basis of such general proposition that any elector can exercise the right of appeal conferred under Section 24. Moreover, it may be noticed that if suck a contention were accepted, any elector, even if he has not filed an objection under Rule 20, Clause (3), would be entitled to file appeal and agitate a question which he failed to raise before the Registration Officer. This surely could not have been the intention of the Legislature.

10. The proper approach to the question, we apprehend is that since Section 24 does not say who shall be entitled to file the appeal provided in the section and nothing in the rules also contains any provision in that behalf, the question as to who can prefer the appeal must be governed by the general principle that ordinarily where an appeal is provided without specifying who shall be entitled to prefer the appeal, the right of appeal is exercisable only by party to the proceeding and no person who is not a party to the proceeding can exercise the right of appeal. This is the principle of civil law but it must apply equally in election law for it is based on the postulate applicable like to election law as to civil law that ordinarily a right of appeal is conferred only on a person who is a party to the proceeding. The validity of this principle as a principle of general application was recognised and affirmed by the Supreme Court in Municipal Corporation of Greater Bombay v. Pancham, AIR 1965 SC 1008 at p. 1016, para 22. If this principle is applied, it is clear that only person who is a party to the proceeding under Section 22 or Section 23 can exercise the right of appeal conferred by Section 24. It is therefore, necessary to consider who are the parries to the proceeding contemplated under Sections 22 and 23. But Sections 22 and 23 cannot be considered in isolation from Section 21 for these three sections form part of one single connected scheme and it would, therefore, be desirable to construe Sections 22 and 23 in the light of Section 21.

11. Section 21, Sub-section (1) which provides for the preparation of the electoral roll does not say how the electoral roll shall be prepared but leaves it to the rule-making authority to prepare the manner in which the electoral roll shall be prepared and finally published. Though the manner of preparation and final publication of the electoral roll is left to be prescribed by the rule-making authority, Section 28 which confers the rule-making power does indicate the scheme which the Legislature has in mind for the preparation of the electoral roll and which the Legislature expects the rule-making authority to follow while making rules prescribing the manner of preparation of the electoral roll. Clauses (b) to (g) of Section 26, Sub-section (2) clearly refer to the preparation of the electoral roll under Section 21 and they show that the steps contemplated by the Legislature in connection with the preparation of the electoral roll are first the publication of the electoral roll in draft, the preferment of claims and objections as to entries in the draft electoral roll, the hearing and disposal of such claims and objections and then the final publication of the electoral roll and when we return to Rules 10 to 24 which prescribe the manner of preparation of electoral roll, we find that these rates do provide for taking these steps. Rule 10 provides for the preliminary publication of the electoral roll in draft. Rules 11 to 14 provide for the manner in which and the time within which claims and objections as to draft electoral roll may be preferred, Rules 15 and 16 provide for the manner in which notice of claims and objections shall be published and Rules 17 to 21 and 23 provide for the place, date and time at which claims and objections shall be heard and the manner in which the claims and objections shall be heard and disposed of and Rule 24 provides for the final publication, of the electoral roll. Now where a claim or objection is disposed of by the Registration Officer under Rule 17 or Rule 18, the Registration Officer is required under Rule 19 to specify the date, time and place of hearing of the claim or objection and to give notice of the hearing in the case of a claim to the claimant in Form 12 and in the case of objection to the inclusion of a name, to the objector in Form 13 and to the person objected to in Form 14, and at the hearing, the claimant or, as the case may be, the objector and the person objected to and any other person who, in the opinion of the Registration Officer, is likely to be of assistance to him are entitled to appear and be heard under Rule 20. In the case of a claimant, therefore, apart from the claimant who is obviously a party to the proceeding, any other person who appears and is heard by the Registration Officer as a matter of right under Rule 20 also becomes a party to the proceeding. So also in the case of an objection, the objector and the person objected to are obviously parties to the proceeding and any other person who has a right to appear and be heard as of right under Rule 20 also becomes a party to the proceeding. Each of these persons is entitled to appear and make his submissions on the question arising out of the claim or objection and if any of them is aggrieved by the decision of the Registration Officer, he can prefer an appeal under Rule 23. The proviso to Rule 23, Clause (1), prescribes that none of these persons shall be entitled to prefer an appeal unless he has availed himself of his right to be heard by, or to make his representation to the Registration Officer and thus emphasizes that the right of appeal under Rule 23, Clause (1), is sought to be conferred only on persons who have appeared as parties to the proceeding before the Registration Officer. Rule 21 which provides for inclusion of names inadvertently omitted from the draft electoral roll also provides that the Registration Officer must publish a notice as to the time and place at which the inclusion of such names in the roll would be considered and the Registration Officer is then required to consider 'any verbal or written objections that may be preferred' at the appointed time and place and to decide whether or not any of the names should be included in the roll. Rule 21 clearly contemplates a hearing at an appointed time and place where the objectors can appear and be heard. The objectors may send their objections in writing to the Registration Officer and appear and make their submissions in support of the objections at the appointed time and place or even without sending any written objections, they may appear at the appointed time and place and make their verbal objections. And if any of these persons is aggrieved by the decision of the Registration Officer, he can prefer an appeal under Rule 23. The procedure prescribed by these rules thus clearly contemplates proceedings in which parties appear and are heard by the Registration Officer. So far as revision of electoral rolls is concerned, that is provided for in Rule 25 but the procedure prescribed in that rule is the same as that in connection with the preparation of electoral rolls and it does not, therefore, throw any further light on the question.

12. Section 22 empowers the Electoral Registration Officer to correct any entry in the electoral roll of a constituency either on application made to him or on his own motion if he finds that the entry is erroneous or defective in any particular or 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 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 on that roll. But, the proviso declares that before taking any action on any ground under Clause (a) or Clause (b) or any action under Clause (c) on the ground that the person concerned has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered on the electoral roll of that constituency, the Electoral Registration Officer must give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him. Where, therefore, an application is made to the Electoral Registration Officer for transposition of an entry in the electoral roll under Clause (b) or for deletion of an entry under Clause (c) and the Electoral Registration Officer does not summarily reject the application, the person concerned becomes a party to the proceeding initiated on the application of the applicant and there comes into being a lis before the Electoral Registration Officer between two persons, namely, the applicant and the person concerned. If, in such list, an order is made by the Electoral Registration Officer under Section 22 granting the application, the person concerned can file an appeal under Section 24 and if on the other hand the Electoral Registration Officer rejects the application, the applicant can file an appeal under Section 24. It may be that in a given case the applicant himself wants the entry to be transposed to another place in the electoral roll under Clause (b) and he may, therefore, make the application. In such a case there would be no question of issuing notice for the purpose of giving a reasonable opportunity under the proviso and the applicant would be the only party to the proceeding and if his application is rejected, he can prefer an appeal against the order of the Electoral Registration Officer under Section 24. But apart from the applicant and the person in relation to whom action is sought to be taken, there is no other person contemplated by Section 22 as a party to the proceeding.

13. Turning to Section 23 that section provides that any person whose name is not included in the electoral roll of a constituency may apply to the Electoral Registration Officer for inclusion of his name in the roll and 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. This section does not contemplate any other party to the proceeding instituted on the application of an applicant. It does not talk or any objection to be filed against the application nor does it contemplate giving of notice to any other persons before consideration of the application. The section does not even say that the Electoral Registration Officer shall hold an inquiry in the prescribed manner or in such manner as he thinks fit. The section merely contemplates an application made by the applicant for including his name in the electoral roll and the consideration of that application by the Electoral Registration Officer. No other party to the proceeding initiated by the application is contemplated by the section and the appeal provided in Section 24 must, therefore, necessarily be an appeal by the applicant against an order made by the Electoral Registration Officer under Section 23 rejecting the application. If the application is allowed and the name of the applicant is directed to be included in the electoral roll, there would be no Question of appeal against that order, for there would be no party to the proceeding entitled to prefer an appeal against the order. This would appear to be the position on a reading of the section but the question is whether Rule 26 makes any difference to the petition.

14. Rule 26 is obviously a rule made under Section 26(2)(h) for the purpose of carrying out the provisions of Sections 22 and 23. Clause (1) of this rule provides that every application shall be made in duplicate in such one of the Forms 6, 8, 8A and 8B as may be appropriate and Clause (3) says that the Registration Officer shall, immediately on receipt of such application, direct that one copy thereof be posted in some conspicuous place in his office together with a notice inviting objections to such application within a period of seven days from the date of such posting. It is clear that in the case of applications under both Sections 22 and 23(1) objections are to be invited by the Electoral Registration Officer and the objections can be filed within a period of seven days from the date of posting of notice inviting objections. What is to happen to the objections received in the case of an application under Section 22 is not dealt with by the rule but Clause (4) of the Rule says that so far as the application under Section 23(1) is concerned, the Registration Officer shall, as soon as may be after the expiry of the period specified in Sub-rule (3), consider the objections, if any, received by him and shall, if satisfied that the applicant is entitled to be registered in the roll, direct his name to be included therein. The only obligation imposed on the Electoral Registration Officer is to consider the objections, if any, received by him. The rule nowhere requires the Electoral Registration Officer to put up a notice specifying the time and place at which the application shall ba considered, nor does it say that the objectors shall be entitled to appear and be heard by the Electoral Registration Officer. There is no limitation prescribed by the rule even as regards the person who can seed an objection to the application. The objection may be sent by an elector included in the electoral roll of the constituency or it may be sent by an elector included in the electoral roll of any other constituency or it may even be sent by a person who is not an elector at all in the electoral roll of any constituency. Whereas Rule 13 prescribes form (for) an objection made against the inclusion of a name in the draft electoral roll, no form for an objection under Clause (3) of this rule is provided anywhere in the rules. These circumstances show that the provision for objections appears to have been made for the purpose of drawing the attention of the Electoral Registration Officer to any relevant fact which might have a bearing on the application of the applicant and not for the purpose of making the objectors parties to the proceeding initiated by the application of the applicant. It is no doubt true that any person, elector or non-elector, is given a right to file his objections against the application but that circumstance alone does not make the objector a party to the proceeding. A comparison between the scheme followed by the rule-making authority in connection with the preparation of the electoral roll and particularly the provisions of Rules 19, 20 and 21 clearly shows that the scheme followed in the case of an application under Section 22 and Section 23(1) is radically different and unlike the objectors under Rules 19, 20 and 21, the objectors under Clause (3) of Rule 26 are not intended, to be made parties to the proceeding. They are merely given an opportunity to send their objections so that the Electoral Registration Officer may, while considering the application of the applicant, be in a position to come to a proper decision on the application. If the construction contended for on behalf of the third respondent were accepted, the result would be that all objectors, whether electors or non-electors, would become parties to the proceeding not only in an application under Section 23(1) but also in an application under Section 22. This result, we do not think, was contemplated by the rule-making authority when it framed Rule 26. Another anomalous consequence which would arise from accepting the contention of the third respondent would be that if the application is rejected and the applicant files an appeal under Section 24, the objectors would have to be made parties to the appeal and though the objectors were not entitled to be heard before the Electoral Registration Officer, they would be entitled to be heard in the appeal by the Chief Electoral Officer. It is also a point of some significance that where the Electoral Registration Officer rejects the application under Section 23, he is required under Rule 26 (4) to record in writing a brief statement of his reasons for such rejection but he is not required to give any reasons where he allows the application. The reason seems to be that since the applicant is the only party to the proceeding initiated on an application under Section 23(1), no reasons need be given by the Electoral Registration Officer if he allows the application but if he rejects the application, then reasons must be given so that the Chief Electoral Officer can examine the correctness of the order if an appeal is filed by the applicant. The correct view, therefore, seems to be that the objector who has filed objections under Clause (3) of Rule 26 against an application under Section 23(1) does not become a party to the proceeding and he is not entitled to appeal against an order made by the Electoral Registration Officer under Section 23 granting the application. But this does not mean that he has no remedy against the inclusion of the name of the applicant in the electoral roll. He can make an application to the Electoral Registration Officer under Section 22 seeking to delete the entry on the ground that the applicant was not entitled to be registered in that roll. If he succeeds in that application, well and good, but if he does not succeed, ho being clearly a party to the proceeding initiated by him, would be entitled to prefer an appeal under Section 24 and to agitate his right before the Chief Electoral Officer. The third respondent who filed his objections against the application of the applicant was, therefore, not a party to the proceeding and he had no right to appeal against the order of the Electoral Registration Officer under Section 24 of the Act and if he had no such right, the fact that an inquiry was held by the Electoral Registration Officer and he participated in such inquiry would not confer any such right on him.

15. We must of course make it clear that when we say that an objector who has filed his objection against an application, under Section 23(1) is not a party to the proceeding initiated on the application and is, therefore, not entitled to exercise the right of appeal conferred under Section 24, we should not be understood to mean that such an objector can never file an appeal under that section. It is well settled that under certain circumstances even a person who is not a party to the proceeding can with the leave of the appellate Court, prefer an appeal if an appeal otherwise lies from the order of the trial Court and that principle might well apply also in the case of an appeal under Section 24 but it is not necessary to consider this question since it was not the case of the third respondent that he sought the leave of the Chief Electoral Officer to appeal against the order of the Electoral Registration Officer and such leave was granted by the Chief Electoral Officer.

16. If the third respondent was not entitled to maintain the appeal against the order of the Electoral Registration Officer, the order passed by the Chief Electoral Officer in the appeal must obviously be held to be without jurisdiction and must be quashed and set aside. In this view of the matter it would not be necessary to consider the further question whether the order of the Chief Electoral Officer suffered from any error of law apparent on the face of the record on the ground set out in the petition. But since these grounds were debated before us and elaborate arguments were addressed to us on these grounds, we shall proceed to briefly examine them. The first ground urged by the petitioner against the validity of the order of the Chief Electoral Officer was that the Chief Electoral Officer was in error in rejecting the application of the petitioner on the ground that it was not in the prescribed form. The main defect in the application which was pointed out by the Chief Electoral Officer was that the application was not countersigned by a person whose name was included in the same part of the roll in which the petitioner desired his name to be included. Now it is no doubt true that Trambaklal Mohanlal Dave who supported the application of the petitioner and countersigned at the foot of the application was not an elector included in the same part of the roll in which the petitioner desired his name to be included but we do not see how this particular circumstance affects the validity of the application made by the petitioner. Rule 26 which prescribes the form in which an application under Section 23(1) must be made by an applicant says that the application shall be in Form 6, that being the form appropriate to such application. Now Form 6, as amended by the notification dated 12th October 1964, contains at the bottom after the space for the place, date and signature of the claimant, the following paragraph:--

'I am an elector included in the electoral roll of the same part in which the claimant has applied for inclusion, viz., Fart No. . . relating to..... My serial number therein is...... I support this claim and countersign it (Signature of the Elector.) Name (in full).......'

This last paragraph in Form 6 suggests that the elector who supports the claim and countersigns it must be included in the electoral roll in the same part in which the applicant is applying for inclusion. Now it may be pointed out that this paragraph was introduced in Form 6 only by way of an amendment by the notification dated 12-10-1964 and prior to that, the paragraph which stood in its place did not require that the elector who supported the claim and countersigned it should be included in the electoral roll of the same part of the constituency but it was enough if he was included in the electoral roll of the same constituency. The printed copies of Form 6 as it stood prior to the amendment, therefore, contained the old paragraph and when the petitioner applied to the officer of the Electoral Registration Officer for a printed copy of Form 6 for making the application, he was supplied a printed copy of Form 6 containing the old paragraph even though Form 6 was amended as far back as 12th, October 1964 and the old paragraph was substituted by the new paragraph. This allegation was made by the petitioner in the petition and though it was an allegation directed against the Electoral Registration Officer, he did not choose to deny it and the learned Advocate-General appearing on behalf of the Electoral Registration Officer with his usual fairness conceded that the printed copy of Form No. 6 containing the old paragraph was supplied by the office of the Electoral Registration Officer. It was under these circumstances that the application made by the petitioner contained the old paragraph and it was not countersigned by an elector included in the electoral roll of the same part of the constituency. But that cannot help the petitioner, if on a true construction of Rule 26 the application was required to be countersigned by an elector included in the electoral roll of the same part of the constituency and the provision in that behalf was mandatory. Let us, therefore, examine whether Rule 26 requires that the application should be countersigned by an elector included in the electoral roll of the same part of the constituency. Now, if we compare Rule 26 with Rule 13 (1), we find that there is a marked difference between the provisions contained in the two rules. Whereas Rule 13 (1) prescribes not only that the claim shall be in Form 6 but that it shall also be countersigned by an elector included in the electoral roll of the same part of the constituencies. Rule 26 merely prescribes the requirement that the application shall be in Form 6 and does not require that the application shall also be countersigned by an elector whose name is already included in the electoral roll of the same part of the constituency. The additional requirement of countersignature by an elector in the same part of the constituency prescribed by Clause (c) of Rule 13 (1) is not to be found in Rule 26 and, therefore, it would not be right to import that requirement in regard to an application under Section 23(1) merely from the prescription contained in Rule 26 that the application shall be in Form 6. Form 6 really consists of two parts: the first part up to the space for place, date and signature of the applicant pertains to the implication to be made by a claimant under Section 23(1) while the second part which follows below the first part does not pertain to the application to be filled in by the applicant but refers to the requirement that the application must be supported and countersigned by an elector in the same part of the constituency. The application under Section 23(1) must, therefore, be in accordance with the first part of Form 6 and since the requirement that the application must be supported and countersigned by an elector in the same part of the constituency is not to be found in Rule 26, the second part of Form 6 which relates to this requirement is inapplicable and need not be complied with. The application was, therefore, not defective and the Chief Electoral Officer was in error in rejecting the application on this ground.

17. It was contended on behalf of the third respondent that the application of the petitioner was also defective in that it did not strike out one of the two alternatives set out in Clause (v) in the first part of Form 6. Clause (v) of Form 6 is as follows:--

'(v) that my name has not been included in the electoral roll for this or any other Assembly Constituency;

or

that my name may have been included in the electoral roll for the........ Assembly Constituency in........State under the address mentioned below and, if so, I require that the same may be excluded from the electoral roll:--'

The contention of the third respondent was that out of these two alternatives, it was obligatory on the petitioner to strike out one which was inapplicable and since that was not done, there was non-compliance with Form 6. But this contention is also in our opinion futile for it overlooks the substance for the form. It is no doubt true that the petitioner did not in so many terms strike out one of the two alternatives in Clause (v) but if we look at the substance of the matter, it is clear that the only effective alternative which could be read in the application was the first limb of the alternative. The second limb of the alternative with the blanks unfilled, did not make any sense and the first limb of the alternative constituted the only effective statement made by the petitioner in the application. The effect was, therefore, the same as if the second limb of the alternative was struck off by the petitioner. This argument also therefore, does not avail the third respondent and it must be held that there was an error of law on the part of the Chief Electoral Officer in rejecting the application as not being in accordance with Form 6.

18. But this was not the only ground on which the Chief Electoral Officer rejected the application of the petitioner. The Chief Electoral Officer also held that the petitioner was not ordinarily resident in the Wadhwan Assembly Constituency and was, therefore, not entitled to be registered in the electoral roll for that constituency. This finding of the Chief Electoral Officer was attacked on behalf of the petitioner on several grounds but it is not necessary to refer to all of them since there is one around on which we think the finding must be set aside. That ground is that the Chief Electoral Officer did not fake into account all the facts of the case while determining the question whether the petitioner was ordinarily resident in the Wadhwan Assembly Constituency and out of the three facts taken by him into account, only one was relevant and correct, the other two being either insupportable by evidence or irrelevant. Section 20, Sub-section (7) requires that if in any case a question arises as to where a person is ordinarily resident at any relevant time, the question shall be determined with reference to all the facts of the case and to such rules as may be made in this behalf by the Central Government in consultation with the Election Commissioner. Now admittedly no rules for determination of the question where a person is ordinarily resident have been made by the Central Government under this sub-section and the only operative requirement of the section, therefore, is that the question must be determined by the appropriate officer with reference to all the facts of the case. This is indeed a requirement which, even apart from statutory provision, must be obeyed by all quasi-judicial tribunals and it was common ground between the parties that the Chief Electoral Officer hearing an appeal under Section 24 would be a quasi-judicial tribunal--but it has been enacted in the form of a statutory obligation in Section 20, Sub-section (7) and the Chief Electoral Officer was, therefore, bound to comply with this statutory obligation in disposing of the appeal before him. The question is whether the Chief Electoral Officer took into account all the facts of the case while determining that the petitioner was not ordinarily resident in the Wadhwan Assembly Constituency. Now there were several facts on record which had a bearing on the question whether the petitioner was ordinarily resident in the Wadhwan Assembly Constituency and to recapitulate only a few of them, they were: the petitioner had his palace in Wadhwan where he had a running establishment managed and looked after by 81 servants; the petitioner resided in the palace at Wadhwan from November to March of every year; the residence of the petitioner in Wadhwan was recognized as his official residence by the Ministry of Finance and Revenue Division of the Government of India, by a notification dated 14th May 1954; the privy purse of the petitioner was paid to him at Wadhwan by the amount being credited to his account With the Punjab National Bank Ltd., at Wadhwan; the petitioner was assessed to income-tax and wealth-tax by the Income-tax and Wealth-tax Officer in Surendranagar and his place of assessment for the purpose of Income-tax Act, Wealth-tax Act, Expenditure-tax Act and Gift-tax Act was Wadhwan; the petitioner also paid income-tax, gift-tax, wealth-tax and expendilure-tax at Wadhwan the birthday ceremonies of the petitioner and the members of his family were all celebrated at Wadhwan and even the marriage of his eldest son was celebrated at Wadhwan and the members of the entire staff in the palace of Wadhwan received their pay from Khangi Kamdar at Wadhwan. These were the proved facts on record but the Chief Electoral Officer did not take into account any of these facts. The only three facts on which the Chief Electoral Officer relied in reaching the conclusion that the petitioner was not ordinarily resident in Wadhwan were:

(1) the petitioner owned a house in Bangalore though not in his Own name but in the name of his wife;

(2) the petitioner and his wife stayed together in the same house at Bangalore for a larger portion of the year; and

(3) the petitioner alone applied to have his name entered in the electoral roll of Wadhwan Assembly Constituency and there was absence of action on the part of the petitioner in getting the other members of his family to apply to enter their respective names in the electoral roll of the Wadhwan Assembly Constituency.

Now so far as the first fact is concerned, it Is clearly insupportable by evidence. There is nothing in the evidence which suggests even remotely that the house in Bangalore which stood in the name of the petitioner's wife belonged to the petitioner. The petitioner clearly stated in his evidence that the house in Bangalore belonged to his wife and that it was purchased by her in 1951 and whenever he went to Bangalore, he stayed in that house with his wife and there was no income from that house since the house was kept for personal occupation. The petitioner also produced the wealth-tax assessment order of his wife for the assessment year 1960-61 in which the house in Bangalore was shown as her own property. There was not a tittle of evidence which would show that the petitioner had paid the consideration for this house or that the wife of the petitioner held this house as a benamidar for the petitioner. Despite the fact that there was no evidence at all to support the finding that the petitioner was the owner of the house in Bangalore in the name of his wife, the Chief Electoral Officer held that the petitioner was the owner of the house in Bangalore though it stood in the name of his wife. This finding being based on no evidence at all cannot stand the scrutiny of this Court and must be disregarded. So far as the second fact is concerned, it was undoubtedly a correct and relevant fact. The third fact is, however, a little difficult to understand. We fail to see how the failure of the other members of the family to make an application for getting their respective names entered in the electoral roll for the Wadhwan Assembly Constituency could possibly lead itself to any adverse inference against the petitioner. The other members of the family who did not apply for getting their respective names entered in the electoral roll of the Wadhwan Assembly Constituency may have had their own reasons for doing so and being sui juris, they were free to act in any manner they liked and the petitioner could not possibly compel them to make such an application even if he thought that being ordinarily resident in Wadhwan, they were entitled to registration in the electoral roll of the Wadhwan Assembly Constituency. This third fact was, therefore, clearly irrelevant and could not possibly be taken into account in determining the question whether the petitioner was ordinarily resident in Wadhwan, But, contended the third respondent, this third fact was not readily taken into account by the Chief Electoral Officer for the purpose of reaching his conclusion but it was relied upon merely as an additional circumstance and it cannot, therefore, be held to viliate his conclusion. There is, therein this contention. It does appear that the Chief Electoral Officer relied upon this third fact merely in order to reinforce the conclusion already reached by him on the basis of the first two facts and this third fact cannot, therefore, have any invalidating consequence. But the conclusion of the Chief Electoral Officer must be held to be vitiated by an error of law apparent on the face of the record since out of the many proved facts on record, the Chief Electoral Officer took into account only one fact namely, the second fact above referred to and ignored the other facts and out of the two facts taken into account by him, the first fact was clearly based on no evidence at all. It is no doubt true that the Chief Electoral Officer stated in his order that he had carefully gone through the evidence on record and had applied his mind to the points raised at the time of the hearing of the appeal and the arguments urged before him as reproduced in the order did draw his attention to the proved facts on record but when we turn to that part of the order where the facts are discussed by the Chief Eectoral Officer. We find that this statement made by him is not accurate and that he founded himself only on the aforesaid two facts and did not take into account the other proved facts. The order of the Chief Electoral Officer would, therefore, in any event require to be quashed and set aside. We may point out that since the question relating to the interpretation of Article 329(b) was a constitutional question of some importance, we heard the learned Advocate-General appearing on behalf of the Electoral Registration Officer and the Chief Electoral Officer but so far as the other questions relating to the merits of the petition were concerned, he was not entitled to be heard since he appeared on behalf of the tribunal and we, therefore, did not permit him to make his submissions on those questions.

19. For these reasons we allowed the petition and made the rule absolute by issuing a writ of certiorari quashing and setting aside the order of the Chief Electoral Officer dated 12th January 1967. The third respondent will pay the costs of the petition to the petitioner.


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