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Gunvantlal Maganlal Pandya Vs. Pranabkumar Kamda Kinker Mukharjee - Court Judgment

LegalCrystal Citation
SubjectElection
CourtGujarat High Court
Decided On
Judge
Reported in(1983)1GLR495
AppellantGunvantlal Maganlal Pandya
RespondentPranabkumar Kamda Kinker Mukharjee
Cases ReferredIn Krishna Chander v. Ram Lal
Excerpt:
- - act, 1950') as well as article 14 of the constitution insofar as it restricts the right to challenge the inclusion of a name in the roll of a person whose name is already included in that roll and the requirement of the same being countersigned by another person whose name is already included in that 'part' of the roll in which the name objected to appears; within a few days thereafter, that is, on 17th april 1980 the electoral registration officer, on being satisfied that the first respondent is entitled to be registered in the electoral roll, directed his name to be included therein. 1950 as well as article 14 of the constitution as it places a restriction on the right to object. they contend that the first respondent was never 'ordinarily resident' in the sabarmati parliamentary.....a.m. ahmadi, j.1. the petitioners who are residents of ahmedabad challenge the election of the first respondent shri pranabkumar kamda kinker mukharjee on the following grounds:(i) the name of the first respondent was wrongly entered in the electoral roll even though he was not 'ordinarily resident' in the sabarrnati constituency of the city of ahmedabad;(ii) rule 13 (2) of the registration of election rules, 1960 (hereinafter called 'the 1960 rules') is ultra vires the provisions of the representation of the people act, 1950 (hereinafter called 'the r. p. act, 1950') as well as article 14 of the constitution insofar as it restricts the right to challenge the inclusion of a name in the roll of a person whose name is already included in that roll and the requirement of the same being.....
Judgment:

A.M. Ahmadi, J.

1. The petitioners who are residents of Ahmedabad challenge the election of the first respondent Shri Pranabkumar Kamda Kinker Mukharjee on the following grounds:

(i) the name of the first respondent was wrongly entered in the electoral roll even though he was not 'ordinarily resident' in the Sabarrnati constituency of the City of Ahmedabad;

(ii) Rule 13 (2) of the Registration of Election Rules, 1960 (hereinafter called 'the 1960 Rules') is ultra vires the provisions of the Representation of the People Act, 1950 (hereinafter called 'the R. P. Act, 1950') as well as Article 14 of the Constitution insofar as it restricts the right to challenge the inclusion of a name in the roll of a person whose name is already included in that roll and the requirement of the same being countersigned by another person whose name is already included in that 'part' of the roll in which the name objected to appears;

(iii) contrary to Section 19-A of the Representation of the People Act, 1951 (hereinafter called 'the R.P. Act, 1951') the Secretary to the Gujarat Legislative Assembly was appointed as the returning officer under Section 21 of the said Act which had materially affected the result of the election within the meaning of Sub-clause (iv) of Clause (d) of Sub-section (1) of Section 100 of the said Act; and

(iv) Section 81 of the R.P. Act, 1951 is ultra vires Article 14 of the Constitution of India to the extent it limits the right of the person to present an election petition by 'any candidate at such election or any elector'.

The brief facts leading to the institution of the present petition are as under:

2. On 7th April 1980 the first respondent made an application in the prescribed form under Section 23 of the R.P. Act 1950 for the inclusion of his name in the electoral roll of the Sabarrnati Parliamentary constituency of the city of Ahmedabad to the electoral registration officer. Within a few days thereafter, that is, on 17th April 1980 the electoral registration officer, on being satisfied that the first respondent is entitled to be registered in the electoral roll, directed his name to be included therein. This was on the basis that the first respondent was 'ordinarily resident' in the said constituency. Five electors (other than the petitioners) of the said constituency, objected to the name of the first respondent being included in the electoral roll of the said constituency and requested the electoral registration officer to delete the same. That application made under Section 22 of R.P. Act, 1950 read with Rule 13(2)/26 of the 1960 Rules, was heard by the said officer who rejected it by his order dated 18th June 1981. Admittedly, no appeal was filed against the said order of the chief electoral officer as provided by Section 24 of R.P. Act, 1950. The petitioners whose names do not appear in the electoral roll of the Parliamentary constituency could not have challenged the entry in the said electoral roll in view of Rule 13(2) referred to above. They had in fact not challenged the inclusion of the name of the first respondent in the electoral roll of that constituency at any point of time. That was perhaps because under Rule 13(2) only a person whose name is already included in the concerned roll and whose objection is countersigned by another person whose name appears in that part of the roll in which the name objected to appears can object to the inclusion. It is for this reason that the petitioners contend that Rule 13(2) is ultra vires the provisions of the R.P. Act. 1950 as well as Article 14 of the Constitution as it places a restriction on the right to object. They contend that the first respondent was never 'ordinarily resident' in the Sabarmati Parliamentary constituency of the city of Ahmedabad and, therefore, the inclusion of his name was clearly invalid.

3. Section 3 of R.P. Act, 1951 provides that a person shall not be qualified to be chosen as a representative of any State in the Council of States unless he is an elector for a Parliamentary constituency in that State. 'Elector', according to Section 2(e), 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 R.P. Act, 1950. It is nobody's case that the first respondent is subject to any disqualification mentioned in that section. Since the name of the first respondent was included in the electoral roll of the Sabarmati Parliamentary constituency, he was by virtue of Section 3 of the R.P. Act, 1951 qualified to be chosen as a representative of the State of Gujarat. Accordingly, he contested the election for being chosen as a representative of the State of Gujarat in the Council of States held on 9th July (sic). There were three seats which were to be filled in from Gujarat State in the Council of States at that point of time. The first respondent along with two others, namely, Shri Harisinh Mahida and Shri Kishore Mehta were declared elected at the poll held on 9th July 1981. The petitioners, therefore, contend that since the first respondent would be discharging duties in the Council of States as a representative of the State of Gujarat, the residents of Gujarat are vitally interested in ensuring that a person ordinarily resident in Gujarat represents them in the Council of States. They contend that since the first respondent never was ordinarily resident in the Sabarmati Parliamentary constituency and in fact belongs to West Bengal, be can never be expected to espouse the cause of the people of Gujarat in the Council of States and, therefore, Rule 13(2) of the 1960 Rules insofar as it limits the right of every voter in the electoral roll of Gujarat to challenge the inclusion made in the said roll contravenes Article 14 of the Constitution. The petitioners further contend on the same line of reasoning that Section 81 of the R.P. Act, 1951 also violates Article 14 of the Constitution insofar as it restricts the right to present an election petition to any candidate at such election or any elector.

4. Our Constitution proclaims India to be a sovereign socialist secular democratic republic. Article 1 says India shall be a Union of States. Part V of the Constitution deals with the Union. Article 79 provides for the Constitution of Parliament. It says that there shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People. Article 80 deals with the composition of the Council of States and provides that it shall consist of members to be nominated by the President and elected representatives of different States as well as the Union Territories. Article 81 refers to the composition of the House of the People. It provides for its members being directly elected from territorial constituencies in the States unlike the representatives to be chosen for the Council of States by indirect election by the members of the Legislative Assembly of the concerned State in accordance with system of proportional representation by means of a single transferable vote. Articles 84 and 102 refer to the qualification and disqualification respectively for membership of Parliament with which we are presently not concerned. We may next turn to Chapter XV entitled 'Election' which consists of six Articles from 324 to 329. Article 324 vests the superintendence, direction and control of elections in the Election Commission. Article 325 provides for one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and further provides that no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them. Article 326 says that the elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage. Article 327 which begins with the clause 'subject to the provisions of this Constitution' empowers Parliament to enact law with a view to making provision 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. Article 328 empowers the State Legislature to make provision with respect to 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 provided provision in that behalf is not made by Parliament. Article 329 which begins with a non-obstante clause places any law made under Article 327 or Article 328, relating to the delimitation of constituencies or the allotment of seats to such constituencies beyond the pale of challenge in any Court. It further provides that no election to either House of Parliament or to the House or either House of the Legislature of a 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 other words, notwithstanding anything contained in the Constitution an election to a Council of States cannot 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 Parliament.

5. The R.P. Act, 1951 was enacted to provide 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 these Houses, and the decision of doubts and disputes arising out of or in connection with such elections. Part VI of the said statute refers to disputes regarding elections. Section 79 defines certain terms used in the said Part as well as Part VII thereof. Section 80 provides that no election shall be called in question except by an election petition presented in accordance with the provisions of this Part of the statute. Section 80-A names the High Court as the Court having jurisdiction to try an election petition. It says that the jurisdiction to try election petitions shall be exercised ordinarily by a single Judge of the High Court to whom the petition is assigned by the learned Chief Justice. Section 81 which is relevant for our purpose reads as under:

81. (1) An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.

Explanation: In this sub-section, 'elector' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.

This means that an election petition can be instituted by any candidate at such election or by any elector, that is, a member of the Legislative Assembly at the relevant point of time entitled to vote at the election to which the election petition relates. Sub-section (3) of Section 81 says that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Next comes Section 82 which being relevant for our purpose may be reproduced:

82. A petitioner shall join as respondents to his petition-

(a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been dully elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates:

Clause (b) of the said section is not relevant for our porpose. Section 83 which sets out what should be the contents of an election petition inter alia provides that it shall contain a concise statement of the material facts on which the petitioner relies and shall set forth full particulars of any corrupt practice that may be alleged and shall be verified in the manner laid down for verification of pleadings in the Code of Civil Procedure. Section 84 indicates that relief that a petitioner may claim in his petition. That brings us to Section 86(1) which enjoins upon the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. The mandate of law as found in Section 96(1) is that if an election petition does not comply with the provisions of Section 81 or Section 82, the High Court shall dismiss the same. Section 87 says that every election petition shall be tried, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure. This is, however, subject to the provisions of the R.P. Act, 1951 and Rules made thereunder. The next section which has a bearing on the questions arising in this petition is Section 100 which reads as under:

100. (1) Subject to the provisions of Sub-section (2) if the High Court is of opinion-

(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act, or the Government of Union Territories Act, 1963, or

xxx xxx xxx xxxxxx xxx xxx xxx(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected,

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

the High Court shall declare the election of the returned candidate to be void.

We are not concerned with the rest of the Sections of Part VI of the statute.

6. The first respondent has filed a preliminary written statement in the form of an affidavit-in-reply contesting the present petition inter alia on the grounds that the petition is not an election petition at all and that in any event it is not maintainable in view of Section 81 read with Section 86 of the R.P. Act 1951 as the petitioners were neither candidates nor electors at the election in question as also because the other two returned candidates Shri Harisinh Mahida and Shri Kishore Mehta have not been impleaded as co-respondents. It is contended that the grounds of challenge catelogued in Section 100 are exhaustive and since the election of the first respondent is not challenged on any of the grounds set out therein, the petition is liable to be dismissed at the threshold. It is also contended that the vires of any of the provisions contained in the R.P. Act, 1950 and R.P. Act, 1951 or the Rules made thereunder cannot be challenged in an election Petition and the only remedy, if at all, is to invoke the jurisdiction of the High Court under Article 226 of the Constitution. The first respondent therefore, contends that on the aforesaid preliminary grounds alone the petition is liable to fail. Realising the difficulties in their way, the petitioners moved two separate amendment applications for permission to implead the other two returned candidates as co-respondents and sought permission to challenge the constitutional validity of Section 82(a) of the R.P. Act, 1951. The first respondent has filed a detailed reply objecting to the amendments sought to be made in the petition by the petitioners mainly on the ground that such amendments could not be permitted to cure the defects in the petition after the period of limitation has expired because as the law presently stands, the defects are fatal to the petition. By consent it was agreed that the amendment applications may be disposed of along with the preliminary objections.

7. In view of the rival contentions raised in the pleadings, I framed the following preliminary issues on 7th December 1982-

(1) Can the present petition be entertained as an election petition? If no, what order?

(2) Is the petition in its present form not maintainable in view of Section 81 read with Section 86 of the R.P. Act 1951 as the petitioners were neither candidates nor electors at the election in question?

(3) Is the petition not maintainable because of non-joinder of returned candidates Shri Harisinh Mahida and Shri Kishore Mehta as respondents to the petition? If yes, are the petitioners entitled to amend the petition with a view to joining them as co-respondents?

(4) Are the grounds of challenge catalogued in Section 100 of the R.P. Act, 1951 exhaustive? If yes, is the petition liable to be dismissed on the ground that the election of respondent No. 1 is not challenged on any of the grounds catalogued in that section?

(5) Can the vires of any of the provisions of the R.P. Act, 1950 and 1951 or the Rules framed thereunder be challenged in a petition like the present one before this forum as constituted under Section 80-A of R.P. Act, 1951 on the ground that they contravene any of the provisions of the Constitution? If yes, should the petitioners be permitted to amend the petition with a view to challenging the constitutional validity of Section 82(a) of the R.P. Act, 1951?

8. A bare perusal at the cause title of the petition shows that it was initially intended to be a writ petition under Article 226 of the Constitution. That is why it was styled as a Special Civil Application but the same was scored out and was converted into an election petition at the last moment. This becomes further clear on a plain reading of paragraph 45 of the petition wherein in terms it is stated that since the petitioners are not in a position to challenge the election of the first respondent by way of an election petition, they are left with no remedy except to approach the Court with a petition under Article 226 of the Constitution. In paragraph 46 of the petition (page 33 appears to have been substituted for this page in the original draft) there is a statement to the effect that the petitioners are approaching this Court under Section 81 of the R.P. Act, 1951. The last but one page containing the relief clause also appears to have been substituted for this page in the original draft to convert it into an election petition. It would, therefore appear from the nature of the pleadings that Counsel for the petitioner was in two minds, whether to present the petition as a petition under Article 226 of the Constitution or as an election petition under Section 81 of the R.P. Act, 1951. The office on a scrutiny of the petition raised two objections regarding its maintainability, namely: (i) that the parties to the petition are not competent to institute the petition since they were not candidates as the election or electors within the meaning of Section 81; and (ii) that the other two returned candidates had not been impleaded as co-respondents. The petition was placed before Surti, J., on 13th October 1981 in view of the office objections and also for admission. Surti, J., by a speaking order made on the same day overruled the office objections. The first objection was overruled on the ground that Section 81 and 82 of the R.P. Act, 1951 were challenged as unconstitutional. With respect, this statement does not appear to be accurate inasmuch as Section 82 of the R.P. Act, 1951 was not challenged by the petitioners. The petitioners have, therefore, preferred an application seeking permission to challenge the vires of Section 82(a) of the said Act. The second objection was overruled on the ground that the petitioners had not claimed any relief against the other two returned candidates who had not been impleaded as parties. These two objections were overruled at the admission stage before the first respondent was served with a notice regarding the institution of the petition. Mr. Shah for the petitioners had urged before my learned Brother that the petition was in essence and substance directed against the first respondent mainly on the ground that his inclusion in the electoral roll was invalid as he was not 'ordinarily resident' in the State of Gujarat. It was also clarified that in view of Rules 1 and 2 in Chapter I of Part I of the High Court Appellate Side Rules it was open to a Court seized of an election petition to go into the question of vires of the provisions of the R.P. Act, 1951 as the High Court was constituted an Election Tribunal and was not exercising jurisdiction solely under Article 226 of the Constitution. On the above line of reasoning, Surti, J., admitted the petition. It must be clarified that the order made by Surti, J, on 13th October 1981 was before the first respondent was served with a notice of the institution and admission of the petition. The learned advocates for the respondents were, therefore, right in contending that the ex parte order made at the stage of admission was not binding on this Court and this Court can and should after hearing the submissions of the Counsel for the respondents render its decision on the question of maintainability unhampered by the view expressed earlier. In fairness to Mr. Shah it must be stated that he never contended before me that the order of Surti J., overruling the two office objections was binding on me.

9. We are democratic republic. Ours is a federal Constitution. Free and fair elections are a basic postulate of a democratic society. Part XV of our Constitution deals with matters pertaining to elections. The word 'election' has been used in the wider sense to cover the entire process of election culminating in the candidate being elected. The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections is vested in an independent body called the Election Commission. Prior to the amendment of Article 324(1) of the Constitution by the Constitution Nineteenth Amendment Act, 1966, the power to appoint Election Tribunals for the decision of doubts and disputes arising out of or in connection with elections to Parliament and legislatures of States was also vested in the Election Commission. However, pursuant to the recommendation of the Election Commission, Election Tribunals were abolished by the 19th Amendment Act and determination of election petitions was left to the High Court. The R.P. Act, 1951, as amended in 1966, gave effect to this recommendation by substituting the words 'High Court' in place of the words 'Election Commission' in Section 81 of the said Act. To ensure the purity of elections, two independent bodies, namely,, the Election Commission and the High Court have been invested with certain powers so that a candidate does not succeed by resorting to unfair and fraudulent means or corrupt practices. The framers of the Constitution have, therefore, taken sufficient care to secure free and fair elections. Parliament has been invested with power under Article 327 of the Constitution to enact laws making provision with respect to all matters relating to or in connection with elections to either House of Parliament, etc., including the preparation of electoral rolls, delimitation of constituencies and all other matters necessary for securing the due constitution of Houses of Parliament and State Legislatures. It is well-settled that when the Legislature resorts to an inclusive definition, it intends to widen the scope of the power. Entry 72 in List I of the Seventh Schedule to the Constitution entitles the Parliament to enact laws concerning 'Elections to Parliament, to the Legislatures of States and to the offices of President and Vice-President, the Election Commission'. Article 327 is subject to the provisions of the Constitution and would, therefore, be subject to Article 245 of the Constitution which empowers Parliament to make laws for the whole or any part of the territory of India. This Article in turn is subject to the provisions of the Constitution and would, therefore, be subject to Article 327 of the Constitution. Article 327 deals with a special subject 'elections' unlike Article 245 which is general in nature. It would, therefore be, reasonable to infer that the source of the enactment of R.P. Act, 1950 and the R.P. Act, 1951 is Article 327 read with Entry 72 in List I of the Seventh Schedule to the Constitution. If any of these statutes makes any provision which strictly does not fall within the ambit of Article 327, it would all the same be covered under Article 245 which empowers Parliament to make laws for the whole of the territory of India. Article 329 is an overriding article as it begins with the non-obstante clause-'Notwithstanding anything in this Constitution'. Clause (a) of that Article lays down that 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, (which confers similar power on the Legislature of the State), shall not be called in question in any Court. The clause limits itself to (i) delimitation of constituencies; or (ii) the allotment of seats to such constituencies and does not cover all the matters in regard to which Parliament can enact law under Article 327 of the Constitution. Clause (b) of Article 329 lays down that no election to either House of Parliament...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. On a plain reading of this clause of Article 329 it becomes clear that the election to the Council of States can be called in question only by the presentation of an election petition to the appointed authority (High Court) and that too in the manner provided for by or under the law enacted for that purpose by the appropriate Legislature. The mandate of this clause of Article 329 is, therefore, clear and unmistakable, namely, that if any person desires to challenge the election to the Council of States, he can do so by presenting an election petition to the authority named in the statute enacted for that purpose by the competent Legislature. As pointed out earlier, after the Constitution Nineteenth Amendment Act, Section 81 was amended by Act 47 of 1966 and the authority 'High Court' came to be substituted for 'Election Commission'. The next requirement is that the election petition shall be presented in such manner as may be provided by the statute enacted for that purpose. It was submitted that the expression 'manner' limits the scope of the law to be made in that behalf by the appropriate Legislature and such law can only be procedural or adjectival and cannot touch matters which are substantive in nature. This argument must be repelled in view of the decision of the Supreme Court in Aeltemesh Rein v. Chandulal Chandrakar : [1981]3SCR142 wherein the learned Chief Justice speaking for the Division Bench observed as under:

We are unable to accept the petitioner's argument that the words 'in such manner' which occur in Article 329(b) are limited in their operation to procedural and not substantive requirements.

It is, therefore, clear that an election to the Council of States can be challenged before the High Court by the presentation of an election petition under Section 81 of the R.P. Act, 1951 in the manner provided by that statute and in no other manner whatsoever.

10. Part III of R.P. Act, 1950 concerns electoral rolls for Assembly constituencies. According to Section 15, for every constituency an electoral roll must be prepared in accordance with the provisions of the said Act under the superintendence, direction and control of the Electric Commission. Section 16 says that a person shall be disqualified for registration in an electoral roll if he is not a citizen of India; is of unsound mind and stands so declared by a competent court; or is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections. It further provides that the name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included. The first respondent admittedly does not suffer from any such disqualification. Section 19 prescribes the conditions of registration. It says that every person who is not less than twenty-one years of age on the qualifying date (first day of January) and is ordinarily resident in a constituency, shall be entitled to be registered in the electoral roll for that constituency. The expression 'ordinarily resident' has been explained in Section 20. Section 21 provides for the preparation and revision of electoral rolls. Section 22 empowers the electoral registration officer to correct any entry in the electoral roll. It says that if the said officer on an 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 is erroneous or defective in any particular, or requires to be deleted on the ground that the person concerned has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll, he shall, subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, delete the entry. Before doing so, the said officer is enjoined by the proviso to give the person concerned reasonable opportunity of being heard in respect of the action proposed to be' taken in relation to him. This power can be exercised only after an entry is made in the electoral roll. However, section 23 deals with inclusion of names in electoral rolls. It says that 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. Sub-section (3) of Section 23 provides that no amendment or deletion of any entry shall be made under Section 22 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. An appeal is provided by Section 24 to the chief electoral officer from any order made under Section 22 or Section 23 of the said Act. In the present case, admittedly the name of first respondent was entered in the electoral roll of the Sabarmati constituency under Section 23 of the Act. An effort was made by five persons (other than the petitioners) to have his name deleted from the said electoral roll by resorting to Section 22 but their application was rejected by the electoral registration officer against which no appeal was filed under Section 24 of the said Act. So far as the present petitioners are concerned, they never made any application for the deletion of the name of the first respondent from the electoral roll of Sabarmati constituency. They did not do so because under Rule 13(2) of the 1960 Rules framed under the said Act, every objection to the inclusion of a name in the electoral roll has to be preferred only by a person whose name is already included in that roll and to be countersigned by another person whose name is already included in that part of the roll in which the name objected to appears. Under Section 13-D the electoral roll for every parliamentary constituency shall consist of the electoral rolls for all the assembly constituencies comprised within that parliamentary constituency. Rule 5 of the 1960 Rules provides that the electoral roll shall be divided into convenient parts and the number of names included in any part of the roll shall not ordinarily exceed two thousand. It was, therefore, contended by Mr. Shah, the learned advocate for the petitioners, that Rule 13(2) requires that every objection to the inclusion of any name in the electoral roll must also be countersigned by another whose name is included in that part of the roll in which the name objected to appears. He submitted that this requirement of the objection to be countersigned by another person whose name appears in that part of the electoral roll in which the name of the first respondent appears limits the right of every person whose name is included in 'the electoral roll to question the inclusion of the name of another person by imposing an arbitrary condition to the objection application to be countersigned by another person whose name appears in that part of the electoral roll in which the name of the person objected to appears. He submitted that the electoral roll is divided into several parts merely as a matter of convenience and convenience cannot take away the right of every person whose name is included in that electoral roll to question the inclusion of the name of another person. It was, therefore, submitted that the requirement of Rule 13(2) insofar as it demands the objection to be countersigned by any other person whose name is included in that part of the electoral roll in which the name of the person objected to appears is clearly arbitrary and not permitted by Article 14 of the Constitution. He also submitted that the said requirement was ultra vires the Act because Section 22 nowhere provides that the objection application shall be countersigned as provided by Rule 13(2)(c) of the 1960 Rules. Section 28 empowers the Central Government to make rules in consultation with the Election Commission. Such rules may provide for the manner in which and the time within which claims and objections as to entries in the electoral rolls may be preferred. It is in exercise of the said power that Rule 13(2) came to be made. There is, therefore, no substance in the contention that the said rule is ultra vires the Act.

11. It was rightly pointed out by the learned Counsel for the respondents that once a name is included in the electoral roll under Section 23 of the R.P. Act, 1950 that person becomes qualified for membership of the Council of States under Section 3 of the R.P. Act, 1951. According to that section which is couched in negative language, a person shall not be qualified to be chosen as a representative of any State in the Council of States unless he is an elector for a Parliamentary constituency in that State. 'Elector' in relation to a constituency means a person whose name is entered in the electoral roll of that constituency and who is not subject to any of the disqualifications mentioned in Section 16 of the R.P. Act, 1950. The name of the first respondent was included in the electoral roll of the Sabarmati parliamentary constituency and, as stated earlier, admittedly he did not suffer from any of the disqualifications set out in Section 16 of the R.P. Act, 1950. He was, therefore, competent to offer himself for election as a representative of the State of Gujarat in the Council of States. On the date of his election, his name appeared in the electoral roll of the Sabarmati parliamentary constituency. His election can, therefore, be set aside only by an election petition presented to the High Court in the manner provided by Part VI of the R.P. Act, 1951.

12. It was, however, contended by Mr. Shah that the petitioners challenge the inclusion of the name of the first respondent in the electoral roll on the ground that his name could not be included in the said roll because he was not ordinarily resident in that constituency. That raises the question whether in this election petition the petitioners can challenge the inclusion of the name of the first respondent in the electoral roll pertaining to the Sabarmati constituency. Article 329(b) provides that an election can be challenged in such manner as may be provided by law enacted in that behalf. It refers to post-election challenge and not challenge pertaining to pre-election matters. Part VI of R.P. Act, 1951 deals with disputes regarding elections. Section 80 declares that no election shall be called in question except by an election petition presented in accordance with the provisions of that Part. It is obvious from the plain language of Article 329(b) 'as well as Section 80 of the R.P. Act, 1951 that they deal with post-election stage and not pre-election matters. The challange to the inclusion of the name of the first respondent in the electoral roll concerns a pre-election stage and not a post-election stage. Besides, the R.P. Act, 1950 and the 1960 Rules made thereunder lay down the procedure for the deletion of the name entered in the electoral roll of any constituency. The petitioners, if they desired to challenge the inclusion of the name of the first respondent in the electoral roll of the Sabarmati constituency, ought to have followed that procedure and cannot be permitted to question he correctness of the entry in an election petition filed under Section 80 of the R.P. Act, 1951. The right to challenge an entry is a statutory right and must be exercised in the manner provided by the statute. The constitutional validity of the R.P. Act, 1950, has not been challenged. If, therefore, the rules are framed in exercise of power conferred by Section 28 of that enactment and if the said rules are intra vires the statute and if the statute is intra vires the Constitution, the petitioners could challenge the inclusion of the name of first respondent only in the manner provided thereunder. But, assuming for the sake of argument that Rule 13(2) is ultra vires the statute as well as Article 14 of the Constitution as was contended before me by the learned Counsel for the petitioners, its effect would be to efface Clause (c) of Rule 13(2) of the 1960 rules but not the entry made in the electoral roll under Section 23 of the R.P. Act, 1950. In other words, that entry would remain till it is deleted under Section 22 read with Rule 13(2) and, therefore, the petitioners cannot challenge the fact that the first respondent was an elector within the meaning of Section 3 read with Section 2(e) of the R.P. Act, 1951. The petitioners, therefore, cannot achieve their purpose by challenging the vires of Rule 13(2)(c) because that will not help them overcome the fact that at all material times the first respondent was an elector and was, therefore, entitled to offer himself for election as a representative of the State of Gujarat in the Council of States.

13. The learned Counsel for the respondents, however, submitted that in an election petition filed under Section 80 of the R.P. Act, 1951 the High Court cannot enter into pre-election matters and, therefore, it cannot examine the question whether the name of the first respondent was rightly included in the electoral roll of the Sabarmati parliamentary constituency under Section 23 of the R.P. Act, 1950 on the premise that he was ordinarily resident in that constituency. In H.M. Trivedi v. V.B. Raju : [1974]1SCR548 precisely a similar question arose for determination as formulated in paragraph 26 of the judgment. Dealing with the said question Their Lordships of the Supreme Court after reviewing the case law on the subject observed as under:

And viewed from the aspect of public policy as reflected in the provisions of the 1950 and 1951 Acts, we do not think that a wrong decision on a question of ordinary residence for the purpose of entering a person's name in the electoral roll should be treated as a jurisdictional error which can be judicially reviewed either in a civil court or before an Election Tribunal.

Proceeding further, Their Lordships observed that the matter was concluded by the decision in P.R. Belagali v. B.D. Jatti : [1971]2SCR611 . In S.K. Choudhary v. B. Panjiar : AIR1973SC717 , the Supreme Court held that even assuming that the inclusion of names in the electoral roll was illegal, it was not open to the High Court, when trying an election petition, to go behind the electoral roll and inquire into the question whether the officers who prepared the roll were validly appointed. In that case the contention was that the electoral roll was illegally prepared, and therefore, there was no electoral roll in the eye of law and hence election in question was void. Dealing with that submission the Supreme Court held that it was not open to an election court to go behind the entry in the electoral roll. I do not consider it necessary in view of the aforesaid two decisions of the Supreme Court to refer to the decisions of various High Courts to which my attention was drawn by the learned Counsel for the respondents. It is, therefore, settled law that the High Court while exercising jurisdiction as an election court under Section 80 of the R.P. Act, 1951 cannot go behind the entry made in the electoral roll under Section 23 of the R.P. Act, 1950.

14. At all material times, therefore, the first respondent was an elector under Section 3 read with Section 2(c) of the R.P. Act, 1951. He was declared elected as a representative of the State of Gujarat in the Council of States on 9th July 1981. His election to the Council of States can, therefore, be challenged only under the provisions of Part VI of the R. P. Act, 1951 in view of Article 329(b) of the Constitution. Section 80 of the said Act makes it abundantly clear that an election shall not be called in question except by an election petition presented in accordance with the provisions of that part of the Act. Section 80-A invests the High Court with jurisdiction to try an election petition. Section 81(1) says that an election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or an elector within forty-five days from the date of election of the returned candidate. For the purposes of this sub-section 'elector' means a person who is entitled to vote at the election to which the election petition relates. Since the present election petition relates to the election of the first respondent to the Council of States, the term 'elector' in the context means a member of the Gujarat Legislative Assembly. According to this sub-section, therefore, two conditions have to be satisfied, namely (i) the person filing the election petition must be a candidate at such election or an elector; and (ii) the petition must be founded on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 of the Act. Indisputably the petitioners were neither candidates at the election in question nor electors since neither of them was at the relevant point of time a member of the Gujarat Legislative Assembly. Ex-facie, therefore, the petitioners were not competent to present this petition. Secondly, the respondents contend that the petition is not founded on any of the grounds catalogued in Sub-section (1) of Section 100 or Section 101 of the Act. Admittedly Section 101 is not invoked but Mr. Shah for the petitioners relied on Sub-clause (iv) to Clause (d) of Sub-section (1) of Section 100 to show compliance with the requirements of Section 81(1) of the Act. I will deal with this question a little later.

15. Section 82 of the said Act next provides that a petitioner shall join as respondents to his petition all the returned candidates since in the instant case no such declaration as is referred to in the earlier part of Clause (a) Section 82 is claimed. Besides the first respondents, the other two returned candidates are Shri Harisinh Mahida and Shri Kishore Mehta. These two returned candidates are not impleaded as parties to the petition. That is why an application for leave to add the said two returned candidates as co-respondents has been made by the petitioners under Order VI Rule 17 of the Code of Civil Procedure. The question then is, whether the amendment could be permitted to cure the defect at this stage?

16. Sectopn 86 of the said Act enjoins upon this Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the said Act. In the present case, we are not concerned with Section 117 which provides for deposit of security for costs in the High Court at the time of presentation of the petition. On the plain language of Sub-section (1) of Section 86 it is imperative to dismiss an election petition which does not comply with the provisions of any of the aforesaid three sections. Since the present petition does not comply with the requirements of Sections 81 and 82, the same is liable to be dismissed as per the mandate of Section 86(1) of the Act.

17. It is well-settled that Section 86(1) is peremptory in nature and admits of no exception. It has to be strictly enforced and once noncompliance with the requirements of Section 82 and Section 100 is pointed out, the High Court has no alternative but to dismiss the same. The provisions of the Act being mandatory, strict compliance is expected of the party presenting an election petition. After the period of limitation prescribed by Section 81 expires, the defect, if any, cannot be cured by an amendment of the petition either under Order I Rule 10 or Order VI Rule 17 of the Code of Civil Procedure. See Mohan Raj v. Surendra Kumar : [1969]1SCR630 ; Krishan Chander v. Ram Lal : [1974]1SCR349 ; Udhav Singh v. M.R. Scindia : [1976]2SCR246 ; and Sharif-ud-Din v. Abdul Gani : [1980]1SCR1177 . It is clear from the aforesaid decisions of the Supreme Court that the requirements of Section 81(1), Section 82(a) and Section 86(1) are mandatory and if it is found that the petition does not comply with the requirements of the said sections the Court has no option but to dismiss the same. In Charan Lal v. Nandkishore : [1974]1SCR294 , xxx Dhoom Singh v. P.C. Sethi : [1975]3SCR595 and Aelthemesh Rein (supra), : [1981]3SCR142 , noncompliance with the provisions of Section 117 was considered fatal in view of the mandate of Section 86(1) of the Act.

18. The petitioners have presented an application for permission to implead the returned candidates as co-respondents admittedly long after the period of limitation of forty-five days expired. The question then is, can the Court permit the petitioners to cure the defect by amending the petition at this stage so as to comply with the requirement of Section 82(a) of the Act. The Supreme Court has pointed out in the case of Mohan Raj. (supra) : [1969]1SCR630 - that even though the power of amendment is preserved to the Court, the Court cannot use Order VI Rule 17 or Order 1 Rule 10 of the Code of Civil Procedure to avoid the consequences of non-joinder. In other words, the Court cannot permit the petitioners to cure the defect of non-joinder of the returned candidates after the period of limitation has expired. That is because the application of the Code of Civil Procedure is subject to the provisions of the R.P. Act, 1951 and the rules made thereunder. Since the requirement of Section 86(1) is mandatory, the consequence specified by that sub-section must follow. It is well-settled that whenever a statute prescribes that a particular act is to be done in a particular manner and provides the penalty for noncompliance, it must be done in that manner only and any departure therefrom only can be at the peril of the petition being thrown out as not maintainable. The Supreme Court having held in Mohan Raj's case (supra) that Section 86 (1) is a peremptory provision and admits of no exception, observed that non-compliance with the mandatory requirements must result in the dismissal of the petition. In K.V. Rao v. B.N. Reddi : [1969]1SCR679 , the Supreme Court reiterated the same proposition in the following words:

With regard to the addition of parties which is possible in the case of a suit under the provisions of O.I.R. 10 subject to the added party's right to contend that the suit as against him was barred by limitation when he was impleaded, no addition of parties is possible in the case of an election petition except under the provisions of Sub-section (4) of Section 86. Section 82 shows who are necessary parties to an election petition which must be filed within 45 days from the date of election as laid down in Section 81. Under Section 86(1) it is incumbent on the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82. Again the High Court must dismiss an election petition if security for costs be not given in terms of Section 117 of the Act.

I am, therefore, of the opinion that the delayed request on the part of the petitioners to join the returned candidates as co-respondents with a view to curing the defect of Section 82 (a) cannot be permitted because it would be tantamount to impleading the returned candidates as parties to the petition after the expiry of the period of limitation. The result is that the petition would have to fail on the technical plea of non-joinder of the returned candidates as parties to the petition.

19. That brings me to the consideration whether this is a petition calling in question the election of the first respondent on any of the grounds specified in Sub-section (1) of Section 100 of the Act. As urged by Mr. Shah, the petition falls squarely within the ambit of Sub-clause (iv) of Clause (d) of Sub-section (1) of Section 100 which provides mat the High Court shall declare the election of the returned candidate to be void if it is satisfied that the result of the election, insofar as it concerns the first respondent was materially affected by non-compliance with the provisions of the Act. That section lays down that for every election to fill a seat or seats in the Council of States, the Election Commission shall, in consultation with the Government of the State, designate or nominate a returning officer who shall be an officer of Government or of a local authority. In the present case the Secretary of the Gujarat Legislative Assembly was appointed a returning officer and since he was not an officer of Government or a local authority, there was a clear violation of Section 21 of the Act. It is common ground that the Secretary of the Gujarat Legislative Assembly was appointed the returning officer for the election in question. It was not disputed before me that he was neither an officer of the State Government nor of any local authority. There is, therefore, prima facie evidence showing non-compliance with Section 21 of the Act. But, it was argued and in my opinion rightly, that it was not sufficient to show non-compliance with any provision of the Act to bring the case within the purview of Sub-clause (iv) of Clause (d) of Sub-section (1) of Section 100 of the Act. In addition to showing non-compliance it must be shown that the same has resulted in materially affecting the election of the returned candidate. In Pt. Shree Krishna Selot v. Sri Ram Charan 51 E.L.R. 50, the Supreme Court pointed out that according to Section 100(1)(d)(iv) of the Act if there has been any non-compliance with the provisions of the Constitution or the Act or any other rules or orders made thereunder, the appellant must show that the result of the election, insofar as it concerned the returned candidate, has been materially affected, if he wants the election to be declared void. In the present case, besides showing non-compliance with Section 21 and in the case of his assistants of Section 22 nothing further has been averred in the petition to come to the conclusion that the said non-compliance has materially affected the result of the election. If an independent person like the Secretary of the Gujarat Legislative Assembly and his assistants functioned as the returning officer or assistant returning officers under Sections 21 and 22 of the Act, I fail to understand, in the absence of relevant facts pleaded in the petition, how it can be said that their presence materially affected the result of the election of the first respondent. That being so, it is difficult to conclude that this petition is founded on the ground contained in Section 100(1)(d)(iv) of the Act.

20. It was submitted that Section 100 of the Act was not exhaustive and, therefore, a petition based on grounds other than those catalogued in Section 100(1) of the Act was maintainable. There is no merit in this contention because the scheme of Part VI of the R.P. Act, 1951, clearly shows that an election petition can be based on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 of the Act. Precisely the same question arose for decision before a Division Bench of the Bombay High Court in Ramnarain v. Ramchandra : AIR1958Bom325 . In paragraph 14 of the judgment, the learned Judges constituting the Division Bench held that the grounds on which an Election Tribunal can declare an election void are contained in Section 100. It would, therefore, not be competent for the tribunal to traverse beyond its scope. The point may be clinched by a reference to the observations of the Supreme Court in S.N. Balakrishna v. Fernandez : [1969]3SCR603 which read as under:

Sections 100 and 101 deal with the substantive law on the subject of elections. These two sections circumscribe the conditions which must be established before an election can be declared void or another candidate declared elected. The heads of substantive rights in Section 100(1) are laid down in two separate parts; the first dealing with situations in which the election must be declared void on proof of certain facts, and the second in which the election can only be declared void if the result of the election insofar as it concerns the returned candidate, can be held to be materially affected on proof of some other facts.

It is, therefore, obvious that Section 100(1) is exhaustive and an election petition must be based on one or more of the grounds specified in the said two sections and cannot travel beyond the scope of those sections. In J.K. Choudhury v. Birendra Chandra Bulla 41 E.L.R. 66, the Supreme Court held that the election could not be set aside on the ground that there was discrimination in the matter of supply of the supplementary voters' list because contravention of Article 14. even if true, is not an electoral offence. In other words, it was not permissible to travel beyond the grounds specified by the Act for declaring an election void.

21. In order to avoid the rigour of Sub-section (1) of Section 81, insofar as it limits the right to file a petition calling in question an election to 'any candidate at such election or any elector', meaning thereby a member of the Legislative Assembly, the constitutional validity of that sub-section to that limited extent is challenged by the petitioners. The constitutional validity of Section 82(a) was not challenged when the petition was admitted by Surti, J. It, however, appears that my learned Brother was under the impression that both Sections 81 and 82 of the Act were challenged by the petitioners. In order to overcome the difficulty arising on account of the non-joinder of the returned candidates, the petitioners have moved an application under Order 6 Rule 17 of the Code of Civil Procedure for raising a contention regarding the constitutional validity of the said provision. That application is hotly opposed by the respondents. The preliminary issue No. (5) framed in this petition raises the question whether the vires of any provision of the R.P. Act, 1950 and/or the R.P. Act, 1951 or the rules framed thereunder could be challenged in an election petition before a High Court which is constituted a special forum by Section 80-A of the latter Act. If that is permissible, the Court would have to consider the next question whether at this stage the petitioners should be granted liberty to amend the petition for incorporating therein the challenge to Section 82A on the ground that it is unconstitutional. I will first deal with question whether it is open to the High Court exercising jurisdiction under Section 80-A of the R.P. Act, 1951 to examine the constitutional validity of any of the provisions contained in Part VI thereof. Article 329(b) says that notwithstanding anything contained in the Constitution no election to either House of Parliament...shall be called in question except by an election petition presented to such authority and in such manner as may be provided by law. The authority to which an election petition can be presented is the High Court under Section 80-A of the Act. Sub-section (2) of Section 80-A states that the jurisdiction to try an election petition shall be exercised ordinarily by a single Judge of the High Court. Before the insertion of the present Section 80-A and the substitution of the words 'High Court' for the words 'Election Commission' in Section 81(1) by Act 47 of 1966, election petitions were tried by Election Tribunals appointed by the Election Commission under Article 324(1) of the Constitution before its amendment by the Constitution (Nineteenth Amendment) Act, 1966. By the said amendment the words 'including the appointment of Election Tribunals for the decision of doubts and disputes arising out of or in connection with elections to Parliament and Legislatures of States' were deleted. After the aforesaid amendment in the Constitution and the R.P. Act, 1951, instead of Election Tribunals the High Court is exercising jurisdiction to resolve disputes regarding elections. The forum has been created by Section 80-A read with Article 329(b) of the Constitution. The right to challenge an election is, therefore a statutory right.

22. In N.P. Ponnuswami v. Returning Officer, Namakkal : [1952]1SCR218 , the Constitution Bench held as under:

(i) Part XV of the Constitution is a Code by itself providing the entire groundwork for enacting appropriate laws and setting up suitable machinery for the conduct of election:

(ii) The word 'election' is used in Part XV in the wide sense of the entire process culminating in the election of a candidate to the House;

(iii) The R.P. Act, 1951 enacted under Article 327 is also a self-contained statute so far as elections are concerned, that is to say, whenever the true position in regard to any matter in connection with election is to be ascertained, one has to look to the provisions of the Act and the Rules made thereunder;

(iv) the right to vote and stand as a candidate for election is not a civil right but a creature of the statute or special law and must, therefore, be subject to the limitations imposed by it;

(v) where a right or liability is created by a statute which gives a special remedy alone can lie and not a petitioner under Article 226 of the Constitution, and for enforcing it, the remedy provided by the statute must be availed of. Since the R.P. Act 1951 provides for only one remedy on the culmination of the election, an election petition alone can lie and not a petition under Article 226 of the Constitution; and

(vi) it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the Legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction must be exercised in accordance with the law which creates it.

The Supreme Court pointed out that Article 329(b) was couched in negative language as it was intended to exclude or oust the jurisdiction of all Courts in regard to electoral matters and to provide the only mode for challenging an election, while Article 71(1) (as it then stood) was couched in affirmative form because it was intended to confer special jurisdiction on the Supreme Court which that Court could not have otherwise exercised. Article 329(b) begins with the words 'notwithstanding anything in this Constitution', words having an overriding effect conveying a message in clear and unmistakable tone that no election shall be called in question except by an election which would rule out a writ petition under Article 226 of the Constitution. The bar of Section 80 of the R.P. Act, 1951 is of the same nature. Clearly, a conjoint reading of these two provisions as well as section 80-A of the R.P. Act, 1951 confers jurisdiction in the High Court for deciding election disputes, a jurisdiction which was enjoyed by Election Tribunals in the past.

23. In Charan Lal v. N. Sanjeeva Reddy : [1978]3SCR1 , the election of the President was challenged. Article 71(2) (as it then stood) provided that all doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be inquired into and decided by such authority or body and in such manner as may be provided for by or under any law enacted under Clause (1) of that Article. Section 14 of the Presidential and Vice-Presidential Elections Act, 1952, ordained that no election shall be called in question except by presenting an election petition. The authority having jurisdiction to try an election petition was the Supreme Court. Sections 5B and 5C of the Act were challenged by the petitioner on the ground that they were unconstitutional. Admittedly, the petitioner had failed to comply with the requirements of those two sections and 'to avoid the rejection of the petition outright for non-compliance with the said two provisions, the validity of both the provisions was challenged by the petitioner. In similar circumstances, the petitioners before me have also challenged the constitutional validity of Sections 81 and 82(a) of the R.P. Act, 1951 and Rule 13(2) of the 1960 Rules. Counsel for the respondents placed reliance on the following observations made by the Supreme Court in support of their contention that the validity of a provision of the Act which creates the forum cannot be challenged before that very forum which is the creature of the statute:

Inasmuch as this Court has been constituted the authority or Tribunal before which the election of the President can be questioned, the effect of Article 71(3) is only to give effect to a well known general principle which is applied by this court that a Court or Tribunal functioning or exercising its jurisdiction under an enactment will not question the validity of that very enactment which is the source of its powers. This Court functions here as an Election Tribunal set up under a law made by Parliament under Article 71(1) of the Constitution. We are unable to see any force in the attack upon the validity of either Section 5B or Section 5C of the Act or of the amendment which introduced Article 71(3) of the Constitution.

By Article 71(3) it was provided that the validity of any law referred to in Clause (1) and the decision of any authority or body under such law shall not be called in question in any Court. It was pointed out by the learned Counsel for the respondents that the aforesaid observations were based de hors Article 71(3) of the Constitution and, therefore, this Court must conclude that the High Court when exercising jurisdiction under Section 80-A of the R.P. Act, 1951 is an Election Tribunal to all intent and purpose and hence being a creature of the statute, it cannot doubt the validity of the statute. This argument was countered by Mr. Shah by relying on a decision of this Court in Chhotalal Jivabhai v. Vadilal Mehta (1971) 12 G.L.R. 851 which has taken the view that since Section 80-A refers to the High Court as the Court having jurisdiction to try an election petition, the single Judge trying the election petition does so as the High Court and not as an Election Tribunal. The relevant observations to which my attention was drawn by Mr. Shah are to be found in paragraphs 12 and 13 of the said judgment. Mr. Shah emphasised that this judgment which was directly on the point was binding on me and, therefore, I must conclude that I have jurisdiction to decide the question of constitutional validity of Sections 81 and 82(a) of the R.P. Act, 1951. Prima facie, the submission urged on behalf of the respondents that in view of the observations made by the Supreme Court in Charan Lal's case (supra) the view taken by this Court in Chhotalal's case is no more good law, has substance but it is not necessary for me to pronounce on the same because, assuming for the sake of argument that this Court can go into the constitutional validity of the impugned provisions, I do not see any substance so far as the challenge to the said provisions is concerned.

24. Section 81(1) confers a right on the candidate at an election or any elector to challenge the election within the stipulated time. The Explanation to that sub-section says that the term 'elector' means a person who was entitled to vote at the election under challenge. Since the election in question was to fill in vacancies in the Council of States, those entitled to vote were the members of the Gujarat Legislative Assembly at the date of the election. The right to challenge an election being a statutory right it can be exercised only by those on whom the statute confers the right. In the instant case, the statute confers the right on the candidate at the election or the elector and since the petitioners were neither, ex facie, the petition could not be entertained. To overcome this difficulty, the petitioners contend that Section 81(1) is ultra vires Article 14 of the Constitution. It is difficult to understand this challenge because a person who was a candidate at an election as well as a voter has been conferred the right to challenge the election. The petitioners, however, contend that since election to the Council of States is for the purpose of choosing a representative of the concerned State, every person whose name appears on the electoral roll is interested in the outcome of the election at which his representative is chosen and, therefore, he must be given a right to challenge the election. Now members of the Legislative Assembly are representatives of the voters who elect them. The election to the Council of States is by indirect voting, that is, voting through the representatives of voters whose names appear in the electoral roll and, therefore, if the said representative has been granted a right to challenge the election, he can certainly safeguard the interest of the voters of his constituency and, therefore, it was not necessary to grant a right to challenge the election to the Council of States to each individual voter whose name appeared on the electoral roll. The candidate at the election as well as the elector are granted a right to challenge the election and, therefore, the interest of all the voters whose names appear on the electoral roll is safeguarded through their representatives. It is, therefore, difficult to understand how discrimination can be alleged in a case where both the candidate as well as the elector have been granted a right to challenge the election. Those who were not actual voters at the election in question could not be conferred a right to challenge an election. I am, therefore, of the opinion that the challenge to Section 81(1) is without any merit whatsoever.

25. Section 82(a) obliges the petitioners challenging the election to join the returned candidates as co-respondents. Admittedly the petitioners have not joined the other two returned candidates as co-respondents to the petition and, therefore, the petition suffers from non-compliance with Section 82(a) which as discussed earlier is fatal. To overcome this insurmountable difficulty, the petitioners desire to challenge the constitutional validity of this provision also by an amendment. The prayer for amendment is resisted firstly on the ground that it is belatedly made and secondly on the ground that Section 82 has been pronounced to be intra vires the Constitution by the Supreme Court in Krishna Chander v. Ram Lal : [1974]1SCR349 . Since the effect of the proposed amendment is to cure the fatal defect, ordinarily, as discussed earlier, such an amendment cannot be granted after the period of limitation has expired. That is because the defect is incurable. However, assuming this Court has jurisdiction to go into the constitutional validity of the said provision and since I am assuming that even as an election Court I can exercise plenary jurisdiction as High Court, I deem it necessary to examine the second limb of the argument. Before I do so, I may also make it clear that at the hearing of this petition when Counsels were dealing with this point, they stated at the bar that I may also deal with the merit of the contention which was proposed to be incorporated in the petition by an amendment.

26. In Krishna Chander v. Ram Lal : [1974]1SCR349 the constitutional validity of Section 82(b) was challenged on the ground that it contravened Article 14 of the Constitution. Dealing with this challenge in the penultimate paragraph of the judgment. Their Lordships observed as under:

In any view of the matter, Article 14 has no application, because the object of Section 82 is one and indivisible in that it is incumbent on any person coming to Court to challenge an election to come with clean hands and not attempt to prevent a full and complete enquiry or perhaps dictated by his own interests to thwart fair trial by picking and choosing the parties to the petition.

27. These observations clearly clinch the issue. It was, however, stated that the controversy before the Supreme Court was limited to the validity of Section 82(b) and, therefore, the aforesaid observations must be read as upholding the constitutional validity of that clause only. It is not possible to accede to this request for the simple reason that the Supreme Court has dealt with the object behind Section 82 in its entirety and has not limited itself to Clause (b) of Section 82 only. But quite apart from the aforesaid decision of the Supreme Court, I find it difficult to understand how violation of Article 14 can be urged if the law requires the returned candidate to be made a party. By requiring the returned candidate to be impleaded as a party nobody's right is sought to be discriminated against. The purpose of joining the returned candidates as parties to the petition is to arraign before the Court all the parties who are interested in the outcome of the election dispute on matter whether a relief is claimed against them or not. There is, therefore, no substance in the contention that Section 82(a) contravenes Article 14 of the Constitution.

28. Lastly even though I have pointed out that it is not necessary to consider the constitutional validity of Rule 13(2) I may briefly deal with the submission in this behalf to make my judgment complete. Rule 13(2) entitles a person whose name is included in the list of voters to challenge the inclusion of the name of any person in the electoral roll provided that his objection is countersigned by another person whose name appears in that part of the roll in which the name objected to appears. The submission was that the requirement of the objection being countersigned by a person whose name appears in that part of the electoral roll in which the name objected to appears places an unreasonable restriction on the right of a person whose name is already included in the electoral roll to raise an objection and this restriction being arbitrary in nature, is clearly violative of Article 14 of the Constitution. It is true that under Rule 5 of the 1960 Rules the electoral roll is divided into different parts for the sake of convenience. The number of names included in any part of the roll must not ordinarily exceed 2000. It was, therefore, said that since the figure of 2000 was arbitrarily fixed, the requirement that the objection application shall be countersigned by another person whose name is already included in that part of the roll in which the name objected to appears arbitrarily circumscribes the right of the voter to raise an objection. The purpose of having the objection application countersigned by a voter whose name appears in that part of the electoral roll in which the name objected to appears is to lend credence to the objection that a person from the very same locality supports the objection. It is, therefore, difficult to say that this requirement is wholly arbitrary. Besides, the mere fact that Rule 5(4) requires that each part shall not ordinarily exceed 2000 names cannot render the requirement of Rule 13(2) arbitrary because if the electoral roll is to be divided into separate parts, a line will have to be drawn somewhere.

29. For reasons stated above, I hold: (1) that the petition in the present form could not be entertained because it did not comply with the basic requirements of an election petition; (2) the petition is not maintainable as the petitioners were not competent under Section 81 to institute the petition; (3) the petition is liable to be dismissed for non-joinder of the other two returned candidates, a defect which cannot be cured by amendment, i.e., addition of the said parties; (4) the grounds specified in Section 100 being exhaustive, the petition is liable to be dismissed as none of the grounds set out therein exist; and (5) it is not necessary to decide whether constitutional validity of the two statutes and rules framed thereunder can be challenged in an election petition because even on an assumption that the same can be challenged there is no merit in the challenge. In view of my above findings on the preliminary issues, the petition fails and is dismissed.

30. Before I part, I must mention that in the course of his argument learned Counsel for the petitioners informed this Court that a petition under Article 226 of the Constitution challenging the inclusion of the name of the first respondent in the electoral roll was filed on the ground that he was not ordinarily resident in the Sabarmati constituency. In that petition the vires of Rule 13(2) is also challenged. I was told that the said petition is admitted and is pending in this Court. I have not concerned myself with that petition as parties are not the same. Besides, none placed reliance thereon. In the end I must thank the learned Counsel for the contesting parties for the able assistance rendered by them.


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