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Kanailal Bhattacharjee Vs. Nikhil Das and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata High Court
Decided On
Case NumberElection Petn. Case No. 2 of 1967
Judge
Reported inAIR1969Cal267
ActsRepresentation of the People Act, 1950 - Sections 16, 19 and 30; ;Representation of the People Act, 1951 - Sections 2, 5 and 36; ;Representation of the People (Amendment) Act, 1956 - Section 100(1); ;Registration of Electors Rules, 1960 - Rule 13(2); ;Constitution of India - Articles 173, 326, 327, 328 and 329; ;Representation of the People (Amendment) Act, 1966 - Section 80A
AppellantKanailal Bhattacharjee
RespondentNikhil Das and anr.
Appellant AdvocateSiddartha S. Roy, ;S. Mukherji, ;D. Gupta and ;A.K. Panja, Advs.
Respondent AdvocateSomendra Nath Chatterjee and ;A. Mitra, Advs.
DispositionPetition dismissed
Cases ReferredIn Chandra Kunwar v. Chaudhuri Narpat Singh
Excerpt:
- orders.p. mitra, j.1. the petitioner is an elector of the burtola assembly constituency in calcutta. he has challenged the election of nikhil das, the respondent no. 1 to the west bengal legislative assembly in the general election, of 1967 from the burtola constituency. the principal ground on which the petition is based, is that nikhil das' name appeared in the electoral roll of the taltola constituency in calcutta; in this electoral roll the address of nikhil das has been shown as premises no. 124c, dharamatolla street; but nikhil das never was nor is 'ordinarily resident' at the said premises. the petitioner has asked, inter alia for a declaration that the election of the respondent no. 1 from the burtola assembly constituency is void and a further declaration that the respondent no,.....
Judgment:
ORDER

S.P. Mitra, J.

1. The petitioner is an elector of the Burtola Assembly Constituency in Calcutta. He has challenged the election of Nikhil Das, the respondent No. 1 to the West Bengal Legislative Assembly in the general election, of 1967 from the Burtola Constituency. The principal ground on which the petition is based, is that Nikhil Das' name appeared in the electoral roll of the Taltola Constituency in Calcutta; in this electoral roll the address of Nikhil Das has been shown as premises No. 124C, Dharamatolla Street; but Nikhil Das never was nor is 'ordinarily resident' at the said premises. The petitioner has asked, inter alia for a declaration that the election of the respondent No. 1 from the Burtola Assembly Constituency is void and a further declaration that the respondent No, 2 has been duly elected,

2. The following issues were raised:-

1. Was the respondent No. 1 at any material time ordinarily resident at premises No. 124C, Dharamtolla Street, Calcutta, and as such, was he entitled to be registered in the electoral roll for the Taltola Assembly Constituency?

2. Was the registration of the name of the respondent No. 1 as a voter in the Taltola Constituency illegal as alleged in the petition?

3. Was there any waiver as alleged in paragraph 11 of the Written Statement?

4. Has the result of the election of the respondent No. 1 been materially affected by non-compliance with the provisions of the Constitution or the Representation of the People Act, 1951 or any rules or orders made under the Representation of People Act 1951?

5. Has this Court jurisdiction to entertain or try the present petition and/or questions involved therein?

6. Is the respondent No. 2 entitled to be declared to have been elected?

7. To what relief's, if any, is the petitioner entitled,:

3. It would be convenient to discuss at the outset certain pure questions of law which arise for determination in this petition and I propose to express my views thereon before coming to the issues of fact. The questions, I have in mind, have to be considered under issues Nos. 4 and 5.

4. The grounds on which an election can be declared to be void, have been set out in Section 100 of the Representation of the People Act, 1951. One of the grounds is that the result of the election, In so far as it concerns a returned candidate has been materially affected by any non-compliance with the provisions (a) of the Constitution or (b) of this Act (that is the 1951 Act) or (c) of any rules or orders made under this Act (that is the 1951 Act): vide Sec. 100(1)(d)(iv).

5. The next provision to be looked into is Article 326 of the Constitution which runs thus:

'The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than twenty-one years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.'

6. The principal point that has arisen for the consideration of this Court in the present petition, is whether 'non-residence' is a disqualification under the Constitution to bring this case within the scope of Section 100(1)(d)(iv) of the 1951 Act.

7. The provisions for 'residence' of an elector are to be found in the Representation of the People Act, 1950 and the Rules made thereunder. It would be convenient at this stage to refer to these provisions. In the preamble to the 1950 Act it is stated that this is 'An Act to provide for the allocations of seats in, and the delimitation of constituencies for the purpose of elections to, the House of the people and the Legislatures of States, the qualifications of voters at such elections, the preparation of electoral rolls ..... and matters connected therewith.'

8. Section 14 of this Act gives, inter alia, the definition of 'qualifying date', unless the context otherwise requires. Section 14(b) says inter alia, that 'qualifying date' in relation to the preparation or revision of every electoral roll means the 1st day of January of the year in which it is so prepared or revised. Under Section 15 for every constituency there shall be an electoral roll which shall be prepared in accordance with the provisions of the 1950 Act under the superintendence, direction and control of the Election Commission.

9. We then come to 'Disqualifications for registration in an electoral roll' in Section 16. A person shall be disqualified for registration in an electoral roll it he, (a) is not a citizen of India or (b) is of unsound mind and stands so declared by a competent Court or (c) 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.

10. In Section 19 we have 'the conditions of registration: it is, inter alia, provided that every person who is ordinarily resident in a constituency shall be entitled to be registered in the electoral roll for that constituency.

11. The expression 'ordinarily resident' has been elaborately explained in Section 20. For instance, a person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns or is in the possession of, a dwelling house therein; and a person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein. In other words, a person, generally speaking, must actually reside in a constituency to become 'ordinarily resident' in that constituency. In Sub-section (7) of Section 20 it is said 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 Commission.

12. Section 21 of the 1950 Act deals with preparation and revision of electoral rolls. Sub-section (2) of Section 21 provides, inter alia, that the electoral roll shall be revised in the prescribed manner by reference to the qualifying date before each general election to the House of the People or to the Legislative Assembly of a State.

13. Section 22 gives power to the electoral registration officer of a constituency to make corrections of entries In the electoral rolls either on application made to him or on his own motion. The proviso to this section says that, before taking any action ..... on the ground that the person concerned has ceased to be ordinarily resident in a 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.

14. Then we come to Section 23 which provides for inclusion of names in the electoral rolls. Lastly, we have to consider Section 24 of the 1950 Act which prescribes that 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.

15. The Central Government by Section 28 of the Act 1950 has been given the power to make rules after consulting the Election Commission for carrying out the purposes of the Act. These rules have been framed and are called at the moment the Registration of Electors Rules, 1960: under Rule 2 (d) 'registration officer' means the electoral registration officer of a constituency and includes an assistant electoral registration officer thereof: under Rule 10 as soon as the roll for a constituency is ready, the registration officer publishes it in draft by making a copy thereof available for inspection and displaying a notice in the prescribed form (a) at his office, if it is within the constituency and (b) at other places in the constituency: Rule 13 makes provisions for the types of forms that are to be used for claims and objections: The manner of lodging claims and objections is in Rule 14; in Rules 15 to 21 we have (1) procedure of designated officers, (ii) procedure of registration officer, (iii) rejection of certain claims and objections (iv) acceptance of claims and objections without inquiry, (v) notice of hearing claims and objections, (vi) inquiry into claims and objections and (vii) inclusion of names inadvertently omitted: in R. 22 we have provisions for final publication of the roll after the periods of claims, objections or inclusions are over: Sub-rule (2) of Rule 22 says that on final publication, the roll together with the list of amendments shall be the electoral roll of the constituency; in Rule 23 there are detailed provisions for appeals from orders deciding claims and objections of the registration officer under Rule 20 or Rule 21 to such officer of the Government as the Election Commission may designate in this behalf: in Rule 26 we have the procedure for correction of entries and inclusion of names in electoral rolls; and Rule 27 contains the procedure for appeals from an order under Rule 26.

16. From the above provisions of the 1950 Act and the Registration of Electors Rules. 1960 it appears that Parliament has prescribed a complete code (a) for preparation of electoral roll (b) for objections thereto (c) for inclusion of names; (d) for correction of entries and (e) for appeals from various decisions of the registration officer. It is also interesting that under Rule 13 (2) (b) an objection to the Inclusion of a name can be preferred only by a person whose name is already included in that roll. This rule seems to suggest that only another elector in the same roll and none else can object to an entry in the roll.

17. Lastly, we come to Section 30 of the Act of 1950 which lays down that no Civil Court shall have jurisdiction (a) to entertain or adjudicate upon any question whether any person is or is not entitled to be registered in an electoral roll for a constituency; or (b) to question the legality of any action taken by or under the authority of an electoral registration officer or of any decision given by any authority appointed under the Act for the revision of any such roll.

18. With these provisions in mind we have to decide in this petition whether an Infraction of any of the provisions of the 1950 Act and the rules made thereunder can be said to be an infraction of Article 326 of the Constitution with the result that it can be urged that the result of the election has been materially affected by non-compliance with the provisions of the Constitution within the meaning of Section 100(1)(d)(iv) of the Representation of the People Act, 1951.

19. It is urged on behalf of the respondent No. 1 that, assuming that he was not ordinarily resident in the Taltola Constituency, his election cannot be challenged in this petition inasmuch as the non-compliance, if any is with a provision of the 1950 Act and not with any of the provisions of Article 326 of the Constitution. Counsel for the respondent No. 1 drew my attention to Section 32 of the Representation of the People Act, 1951 which provides that any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act, that is, the 1951 Act Learned Counsel then relied on Section 36(2): it provides. Inter alia, that the returning officer may reject a nomination paper if on the date fixed for the scrutiny the candidate concerned does not fulfil the requirements of Articles 84, 102, 173 and 191 of the Constitution or the provisions in part II of the 1951 Act Learned Counsel's contention is that whether or not an elector is ordinarily resident in a constituency does not come within the purview of any of these provisions: in fact, under Section 62(1) it is specifically provided that no person who is not, and except as expressly provided by the 1951 Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency; in other words, the sanctity of an electoral roll cannot be challenged under the 1951 Act and a Court trying an election petition cannot go behind it.

20. Mr. Siddhartha Sankar Ray, learned Counsel for the petitioner placed before me the relevant provisions of Section 100(2)(c) of the Representation of the People Act, 1951 as it stood prior to the amendments of 1956. The original provisions were as follows:--

'100 (2) .............................................. if the Tribunalis of opinion-

..... ..... ..... ..... ..... ..... .....

(c) that the result of the election has been materially affected ..... by anynon-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act or of any other Act or rules relating to the election. ...... the Tribunal shall declarethe election of the returned candidate to be void.'

21. It Is common case that Parliament amended these provisions in 1956 and the new provisions, relevant for us, are to be found in Section 100(1)(d)(iv) of the 1951 Act which runs thus:--

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

..... ..... ..... ..... ..... ..... .....

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

22. It is significant that Parliament while amending the provision with which we are concerned, has omitted the words 'or of any other Act or rules relating to the election'. The obvious conclusion is that the Court's jurisdiction is now limited (a) to infractions of the Constitution and (b) infractions of the 1951 Act or rules or orders made thereunder. This Court has no jurisdiction over a breach or non-observance of the provisions of the 1950 Act or any other Act or rules or orders relating to an election. But Mr. Ray relied on the relevant statements of objects and reasons placed before Parliament at the time of consideration of the bill which ultimately resulted in the Representation of the People (Second Amendment) Act, 1956 (27 of 1956). In these statements it has been observed, inter alia, that the Select Committee feel that Sub-sections (1) and (2) of the existing Section 100 should be suitably combined retaining the substance of the existing law and at the same time making the law simple and easily intelligible.

23. On these statements of objects and reasons, Mr. Ray has argued that, in spite of the omission aforesaid a violation of the 1950 Act can be looked into by the High Court trying election petitions: the legislature, according to Mr. Ray, intended to retain the substance of the law as it stood before the amendment and the omission of the words mentioned above, did not make any difference.

24. The Supreme Court in State of West Bengal v. Union of India, : [1964]1SCR371 has observed:

'..... the statements of objectsand reasons accompanying a Bill, when Introduced in Parliament cannot be used to determine the true meaning and effect of the substantive provisions of the statute. They cannot be used except for the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation. But we cannot use this statement as an aid to the construction of the enactments ..... A statute, as passed by Parliament, is the expression of the collective intention of the legislature as a whole, and any statement made by an individual, albeit a Minister, of the intention and objects of the Act cannot be used to cut down the generality of the words used in the statute.

25. There are similar observations of the Supreme Court in the cases reported in : [1954]1SCR587 and : [1957]32ITR615(SC) . The law is that the statement of objects and reasons is no guide to the meaning of substantive provisions but may be taken into consideration by Courts for ascertaining, if necessary, the conditions prevailing at the tune the relevant provisions were introduced or understanding, if necessary, the background of a particular legislation, I am unable therefore, to accept the contention of Mr. Ray that the legislature merely intended to simplify the law and, as such, violations of the 1950 Act are still within the purview of Election Courts. I am supported in this view by the Bombay and the Kerala High Courts and I intend to refer to their decisions at this stage.

26. In Ramdayal v. K.R. Patil, (1959) 20 Ele LR 13 (Bom) it was urged beforethe Bombay High Court that certain persons were not entitled to be included in the electoral roll of the local authorities' constituency in an election to the Bombay Legislative Council. The Bombay High Court considered, inter alia, the provisions of Section 100(1)(d)(iv) of the Representation of the People Act, 1951, as they now stand and compared the same to the corresponding provisions prior to the 1956 amendment. The Bombay High Court has said:

'(From) the present provisions contained in the aforesaid Sub-clause (iv) and the provisions as they were prior to the amendment to Section 100, when read together, it is clear that the former provision was wider in terms and the election was open to challenge on account of non-compliance of the provisions of all the Acts relating to election. The Legislature has amended this section and in the new provision has deleted the part so far as it related to the challenge to other enactments and has confined a right only to the infraction of the provisions of the Constitution, the Act of 1951 and the rules and orders framed under the Act. That being the position it would be reasonable to assume that the intention of Legislature was to debar a challenge to an election on account of the non-compliance with the provisions of the Act of 1950 which, inter alia provides for preparation of electoral rolls. .....'

27. This decision of the Bombay High Court has been noted by the Kerala High Court in P. Kunhiraman v. V.R. Krishna Iyer, : AIR1962Ker190 . In this case the question arose as to whether the election Tribunal had jurisdiction to consider whether a person whose name appeared in the electoral roll was 21 years of age on the qualifying date. A Full Bench of the Kerala High Court thought that the point involved related to an infraction of the Constitution and, as such, the Election Tribunal could go into this question. M.S. Menon Ag. C. J. in paragraph 4 at pages 191 to 192 has said that the presence of minors in an electoral roll and their voting in consequence thereof will be violating of the provisions of Article 326 of the Constitution. Vaidialingam, J., delivering a separate concurring judgment has stated in paragraph 119 at page 210 that the age entered in the electoral roll cannot be considered to be final, either under the scheme of the Constitution or of the Representation of the People Act, 1950 or 1951, so as to preclude the election tribunal from going into that matter when deciding an election petition. It is clear, therefore, according to the Kerala High Court, that whether or not a person whose name appears in an electoral roll was, in fact, an adult is a matter which comes within the purview of an Election Court under Section 100(1)(d)(iv) of the 1951 Act. Vaidialingarn, J., however, in paragraph 114 at page 209 of his Lordship's judgment has dealt with the Bombay High Court's view in (1959) 20 Ele LR 13 (Bom) in these words: 'If certain matters had been exclusively provided only under the 1950 Act, and the relevant rules framed thereunder and there has been a violation of the provisions of that statute alone in respect of those matters Mr. Kolathil Velayudhan Nail is perfectly justified in his contention that the Election Tribunal will have no jurisdiction to interfere, in view of the clear exclusion of the said Act, and the Rules in Section 100(1)(d)(iv) as it now stands. In fact, Mr. Kalathil Velayudhan Nair referred to a decision of the Bombay High Court reported in (1959) 20 Ele LR 13 (Bom). Mr. Kalatail Velayudhan Nair frankly accepted the position that the learned Judges of the Bombay High Court were dealing with a matter which was exclusively provided for by the 1950 Act and the Rules There was no question of the violation of any of the provisions of the Constitution, apart from the provisions of the 1950 Act, that arose for decision before the learned Judges;

'Under those circumstances, the Learned Judges have held that the Election Tribunal cannot declare an election void simply because there has been a non-observance of the provisions of the 1950 Act and the Rules. Therefore, this decision by itself, will not assist Mr. Kalathil Velayudban Nair because in the case before us, the question of the non-compliance with the provisions of the Constitution also arises for decision and that question is to be decided having due regard to the mandatory provisions contained in Article 326 of the Constitution.'

28. Vaidialingam, J., it is clear, has not differed from the Bombay view. His Lordship makes a distinction between a person's age and a person being otherwise disqualified from being entered in the electoral roll and is of the view that when the question of ago arises the matter involves an infraction of the Constitution. I am not concerned with the age of an elector in the present petition. But incidentally, I should point out that a Full Bench of the Punjab & Haryana High Court in a recent decision in Election Petition No. 15 of 1967 = (FB). Roop Lal Mehta v. St. Dhan Singh has differed from the Kerala view. In Roop Lal Mehta's case, Election Petn. No. 15 of 1967 , the judgment of the Full Bench of the Allahabad High Court in Ghulam Mohi-ud-din v. Election Tribunal for Town Area, Sakit, : AIR1959All357 has been followed. The Punjab & Haryana High Court has said:

'So far as, therefore, the two Acts, viz., the Act of 1950 and the Act of 1951, are concerned, the position appeal's to be that after the electoral rolls have been finalised the vote of a person, whose name is on the electoral roll, cannot be challenged as being void on the ground that be was under 21 years of age on the qualifying date ..... thereis nothing in Article 326 of the Constitution which would enable the High Court while hearing election petitions to declare the election of a returned candidate to be void on the ground that certain persons who had voted in the election had not attained the age of 21 years on the qualifying date. Accordingly, Section 100(1)(d)(iv) of the 1951 Act also would be of no help to the position taken up on behalf of the petitioner.'

29. Upon considering the relevant)statutory provisions and the authorities'aforesaid it is at least clear that a violation or non-observance purely of the Actof 1950 or any rules made thereunder isoutside the purview of Section 100(1)(d)(iv) of the Representation of the PeopleAct, 1951 and, as such, an Election Courtwhich derives its jurisdiction from the1951 Act is not entitled to look into thatviolation or non-observance.

30. The next argument of Mr. Ray is that inclusion of a non-resident in the electoral roll of a constituency, is a violation of Article 326 of the Constitution and can be considered by a Court trying election petitions under Section 100(1)(d)(iv) of the 1951 Act. Learned Counsel says that under Article 325 there shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House of the Legislature of a State and 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 ground only of religion, race, caste, sex or any of them. In other words, every person has an absolute or unqualified right to be enrolled as a voter in an election. This absolute or unqualified right has been curtailed by the qualifications prescribed in Article 326. The limitations in Article 326 are (i) the person concerned must be a citizen of India, (ii) he must be not less than 21 years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and (iii) he must not be otherwise disqualified under the Constitution or any law made by the appropriate Legislature on the grounds of (a) non-residence, (b) unsoundness of mind, (c) crime or corrupt or illegal practice. Mr. Ray contends that non-residence is a disqualification under the Constitution and it comes within the scope of Section 100(1)(d)(iv) of the 1951 Act. There is a distinction, according to learned Counsel, between Section 100(1)(a) and Section 100(1)(d)(iv); under Section 100(1)(a) an election , may be declared void if on the date of election a returned candidate was not qualified, or was disqualified, to be chosen to fill a seat under the Constitution; under Section 100(1)(d)(iv) an election may be declared void if the result has been materially affected by non-compliance with any of the provisions of the Constitution. This was the law, argues learned Counsel before the 1956 amendment and is still the law.

31. To test these contentions of the petitioner's Counsel we have to examine closely the language of Article 326 of the Constitution. This article lays down certain qualifications to be registered as a voter. To be a voter one must be a citizen of India: secondly, as the elections shall be on the basis of adult suffrage, one must be not less than 21 years of age 'on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature'. Now, when a law is made in this behalf by the appropriate Legislature that law does not, in my view, become the Constitution itself. The law fixing the qualifying date may have to be referred to, if the Kerala High Court's decision be followed, for ascertaining whether the qualification as to age prescribed by the Constitution exists in a particular case. But it would be fallacious to argue that the said law of an appropriate Legislature becomes a part of the Constitution. It is interesting to compare in this connection the provisions of Article 173 with those of Article 326: under Article 173 a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly if he is less than 25 years of age and a seat in the Legislative Council if he is less than 30 years of age obviously on the date the choice is made. The provisions regarding age contained in Article 173, therefore, so far as choice of the candidate is concerned are in the Constitution itself; but in Article 326 the position is slightly different: an elector must be 21 years of age with reference to a date fixed by some other law by an appropriate Legislature.

32. Then we come to the second part of Article 326. Here, we find that an elector may be 'otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence etc.' To my, mind, the use of the word 'or' makes a distinction between a disqualification under the Constitution and a disqualification under any other law. A disqualification under the Constitution must necessarily be treated separately from a disqualification under any other law. It a person disqualified under the Constitution Is registered as a voter, his registration is a non-compliance with the provisions of the Constitution; but if a person disqualified under any law passed by the appropriate Legislature is registered, his registration would be a non-compliance with the provisions of that law and not of the Constitution.

33. To develop the point further we may first look into Article 245. This article says that subject to the provisions of the Constitution. Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State for the whole or any part of the State. It follows that if any law is made in transgression of the limits prescribed by this article the law will be void under the Constitution. The limits envisaged in Article 245, have been specified in Article 246 which provides for the subject-matters of laws made by Parliament and by the Legislatures of States with reference to the Seventh Schedule to the Constitution. Then, we come for the purposes of the present petition to Article 327. This Article provides: 'Subject to the provisions of the Constitution, Parliament may from time to time by law make 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 and all other matters necessary for securing the due constitution of such House or Houses'. Similar provisions have been made with regard to State Legislatures in Article 328. It is legitimate to ask whether the provisions of any law passed by virtuel of Article 327 or Article 328 would be constitutional provisions. The answer obviously is in the negative. And this answer is further confirmed by Article 329(a). It says that notwithstanding anything in the Constitution, the validity of any law relating to the delimitation of Constituency or the allotment of seats to such Constituency made or purporting to be made, under Article 327 or 328 shall not be called in question in any Court.

34. Now, under Article 327 or 328 the Parliament or the State Legislature may make various laws relating to elections including laws for preparations of electoral rolls, delimitation of constituencies etc. If these laws could be said to be parts of the Constitution they would not have been open to challenge in any Court of law. It is precisely because they are not constitutional provisions that Article 329(a) had to be introduced to give protection to some of them. That is why, I have been saying that in construing Article 326 a distinction has to be observed between a provision of the Constitution and provision in any law made by an appropriate Legislature. Incidentally, a reference may be made to the Supreme Court's opinion on the Kerala Education Bill, 1957, In re, reported in AIR 1958 SC 956. Clause 33 of this Bill was as follows:--

'Notwithstanding anything contained in the Code of Civil Procedure, 1908, or any other law for the time being in force, no Court shall grant any temporary injunction or make any interim order restraining any proceeding which is being or about to be taken under this Act.'

35. Construing Clause 33 the Supreme Court has held that it must be read subject to Articles 226 and 32 of the Constitution: the words 'other law for the time being in force' in Clause 33 of the bill Indicate that the clause has not the Constitution in contemplation, or it will be Inapt to speak of the Constitution as a 'law for the time being in force': the word 'law' in Clause 33 must mean a law of the same kind as the Civil Procedure Code that is to say, a law made by an appropriate Legislature in exercise of its legislative function and cannot refer to the Constitution. The Supreme Court in expressing this view has taken into consideration the meaning of the word 'law' appearing in Articles 2, 4, 32(3) and 367 of the Constitution and has accepted the view urged by the State of Kerala that in all these Articles the word 'law' means law enacted by a legislature. The Supreme Court's attention was also drawn to the definition of 'Indian Law' in Section 3(29) of the General Clauses, Act, 1897. This judgment contains an exposition of the principle we have been trying to pursue viz., that there is a difference between a constitutional provision and a law made by an appropriate legislature. The petitioner'sCounsel says that that the Constitution itself in Article 326 makes non-residence a disqualification; but the nature of non-residence has been entrusted to be determined by an appropriate legislature. This argument, whether it is acceptable or not, might have been advanced with regard to the age of an elector on the basis of the Kerala High Court's judgment referred to above: but it does not appear to be sound in the latter part of Article 326 in which a clear distinction has been made between (a) disqualifications under the Constitution and (b) disqualifications by any law made by an appropriate legislature.

36. The question naturally arises as to what is a disqualification under the Constitution as distinct from a disqualification under any law made by an appropriate legislature. Learned Counsel for the respondent No. 1 stated that he could find only one disqualification under the Constitution. Article 326 provides that a person shall be entitled to be registered as a voter if, inter alia, he is a citizen of India. New provisions regarding citizenship have been made in Articles 5 to 11 in part II of the Constitution. Article 6 deals with rights of citizenship of certain persons who have migrated to India from Pakistan and the proviso to this Article says that no person shall be registered as a voter unless he has been resident in the territory of India for at least 6 months immediately preceding the date of his application. This proviso is undoubtedly a disqualification under the Constitution as envisaged by Article 326. It is possible that but for this disqualification directly under the Constitution the provision in Article 326 which we are discussing, would have been redundant; but we cannot say that there are no redundant provisions at all in the Constitution. We may cite for example Article 163 which provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion. In C. Varadarala v. State of Travancore Cochin. AIR 1953 Trav-Co 140 at p. 145 it has been observed that a close study of the Constitution would show that there is no function which the Raj Pramukh is to exercise in his discretion, The Travancore Cochin High Court accepts the view that these provisions in the Constitution except perhaps in the case of the Governor of Assam with respect to tribal areas are drafting anomalies.

37. My point Is that there may be only one disqualification to be registered as a voter provided in the Constitution itself as we have seen above; but a disqualification laid down in some other law passed by an appropriate Legislature is not and cannot be for purposes of Article 326 a constitutional disqualification.

38. Mr. Siddhartha Ray drew my attention to the Supreme Court's decision in Durga Shankar v. Raghu Raj, : [1955]1SCR267 . The Supreme Court has observed that the expression 'non-compliance with the provisions of the Constitution' in Section 100(2)(c) of the 1951 Act, as it then stood, is sufficiently wide to cover such cases as those in which the question is not one of improper acceptance or rejection of the nomination by the Returning Officer; but there is a fundamental disability in the candidate to stand for election at all. According to Mr. Ray the instant case is also a case of fundamental disability of the candidate. In Durga Shankar's case the substantial ground on which the validity of the election of one of the respondents was challenged, was that at all material times he was under 25 years of age and was consequently not qualified to be chosen to fill a seat in the Legislative Assembly of a State under Article 173 of the Constitution. The Article itself provides, as we have seen, that a candidate for a seat in the Legislative Assembly must not be loss than 25 years of age. This judgment, therefore, does not help us in construing Article 326 in which a distinction has been made between a provision of the Constitution and a provision made under any other law. In Special Reference No. 1 of 1964 reported in : AIR1965SC745 , Gajendragadkar, C. J., said: 'If the Legislatures stepped beyond the Legislative fields assigned to them, or acting within their respective fields they trespassed on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, the Legislative actions are liable to be struck down by Courts in India. Therefore, it is necessary to remember that though our Legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions' of the Constitution'. In other words, a law made by a Legislature may be challenged in Courts on the ground that it transgresses the limits prescribed by the Constitution: but a constitutional provision can never be challenged. It is, therefore, necessary that a distinction should be maintained between a provision of the Constitution and the provision of a law made by an appropriate Legislature even though such a law is authorised by the Constitution which it must necessarily be.

39. Though not quite relevant we may incidentally refer to a decision of the Supreme Court of Canada in His Majesty The King v. William Singer, reported in 1041 Can LR 111. It was held that an order or regulation made by the Governor in Council under the War Measures Act, although it was thereby enacted that such order or regulation 'shall have the force of law', was not an enactment passed by Parliament, i.e., an Act of Parliament, but merely an enactment passed by the Government: and when an accused was charged of having disobeyed such an order or regulation, for the violation of which no penalty or other mode of punishment had been expressly provided, the disobedience so complained of was not punishable under Section 164 of the Criminal Code, which related only to violations of Acts of Parliament or of Provincial Legislatures. I know that this decision has been given in a different context: in Canada the Bankruptcy Act, the Explosives Act, the Fisheries Act etc. provided that regulations passed by the Governor in Council would form part of the Act; but there was no such provision in the War Measures Act. This distinction has been pointed out by Taschereau, J., at page 124 of the report. This judgment, however, is a pointer to the proposition that in appropriate cases a difference may have to be maintained between rules or orders made under an Act and rules or orders not so made. In the former cases the rules or orders form part of the Act, in the latter they do not. Learned Counsel for the petitioner has relied on certain decisions of our Supreme Court holding that rules, regulations, orders, notifications, or even schemes made under a particular Act were to be regarded as part and parcel of the Statute itself if they were not ultra vires the particular Act under which they were made; but in the instant case we have to construe in Article 326 of the Constitution the expression 'is not otherwise disqualified under tins Constitution or any law made by the appropriate Legislature .....' In the face of this expression I am unable to say that a law made by the appropriate Legislature is a part of the Constitution.

40. The third argument of Mr. Ray is that assuming that non-residence of a voter is not an infraction of the Constitution, it is an infraction of the 1951 Act itself and, as such, comes within the scope of Section 100(1)(d)(iv) of the 1951 Act. He has referred to sections 15, 16 and 19 of the Act of 1950. These sections are generally concerned with the preparation of electoral rolls in accordance with the provisions of the 1950 Act under the superintendence, direction and control of the Election Commission: a person shall be disqualified for registration in an electoral roll if he (a) is not a citizen of India or (b) is of unsound mind and stands so declared by a competent Court or (c) 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 (Section 16): in Section 19 it is stated that every person who (a) is not less than 21 years of age on the qualifying date, and (b) is ordinarily resident in a constituency, shall be entitled to be registered in the electoral roll for that constituency. Mr. Ray then referred to the definition of 'elector' in Section 2(e) of the 1951 Act; 'elector' in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of the 1950 Act. Learned Counsel contends that the expression 'entered in the electoral roll' means lawfully entered. And a person cannot be lawfully entered in the electoral roll unless (a) he is at least 21 years of age and (b) he is ordinarily resident in the constituency. In other words,. Sections 16 and 19 of the 1950 Act have to be read together and unless a person fulfils the requirements of both Sections 16 and 19 of the 1950 Act, he does not become an elector within the meaning of the 1951 Act. In support of this argument Mr. Ray relied on the Supreme Court's judgment in Brijendralal v. Jwala Prasad, : [1960]3SCR650 . In this case a candidate for an election did not mention his age in the nomination paper although there was a space for doing so.. At the time of scrutiny the nomination paper was challenged on the ground that it was defective. The electoral roll was produced and the candidate contended that the omission to state the age was not fatal to the nomination paper. One of the matters the Supreme Court has considered in this case is the effect of Section 30(7) of Act of 1951. In this sub-section it is provided that at the time of the scrutiny of nominations a certified copy of an electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in Section 16 of the 1950 Act. The Supreme Court has said that the presumption that arises under Section 36(7) is a rebuttable presumption and it merely refers to the status of a person as an elector. The Supreme Court then considers the definition of elector in Section 2(e) of the 1951 Act which I have already referred to and proceeds to state that this definition 'takes us to the conditions prescribed by Section 19 of the Act of 1950 for registration in the electoral roll.' The petitioner's Counsel's contention is that this judgment of the Supreme Court is an authority for the proposition that while construing the relevant provisions of the 1951 Act, Sections 16 and 19 must be read together. And a disqualification under Section 19 of the Act of 1950 is also a disqualification under the Act of 1951.

41. I am not inclined to accept this view of Mr. Ray. The Supreme Court has explained in paragraph 15 at page 1055 of this judgment why on the facts of that case it was observed that Section 2(e) of the 1951 Act takes us to Section 19 of the Act of 1950. The Supreme Court has said that 'when a presumption is raised under Section 36(7) it may mean prima facie that the person concerned is not less than 21 years of age and is ordinarily resident in that constituency, but for the validity of the nomination paper it has to be proved that the candidate has completed 25 years of age'. We have already seen that the requirement of 25 years of age is an express requirement of Article 173 of the Constitution. That is why, their Lordships of the Supreme Court proceed to observe as follows:

'Confining ourselves to the requirement about age it is obvious that the presumption raised under Section 36(7) would not be enough to justify the plea about the validity of the nomination paper because the said presumption only tends to show that the person concerned has completed 21 years of age. It is clear that in regard to persons between 21 to 25 years of age their names would be registered in the electoral roll and so they would be electors if otherwise qualified and yet they would not be entitled to stand for election to the State Legislature. Thus it would not be correct to assume that a reference to the certified copy of the electoral roll would in every case decisively show that the age of the candidate satisfied the test prescribed by Article 173 of the Constitution; in other words, the requirement about completion of 25 years of age is outside the presumption of Section 36(7), and that must be the reason why the prescribed nomination, form requires that the candidate in signing the said form must make a declaration about his age. This consideration supports the conclusion that the declaration about the age is a matter of importance and failure to comply with the said requirement cannot be treated as a defect of an unsubstantial character.'

42. It is obvious that this decision of, the Supreme Court is no authority for the proposition that in every case Sections 16 and 19 of the 1950 Act must be read together, or that an elector under the 1951 Act must be an elector fulfilling the requirements of both Section 16 end Section 19 of the 1950 Act. The Supreme Court was dealing with the case of age of a candidate for election to the State Legislative Assembly and the matter had to be scrutinised in the light of constitutional provisions contained in Article 173. In the instant case no such consideration arises and the presumption of Section. 36 (7) of the Act of 1951 remains unaffected.

43. Moreover, the Supreme Court discussed in this judgment the scope andapplicability of Section 100(1)(c) and Section 100(2)(c) of the Representation of the People Act, 1951 as it stood prior to its amendment in 1956 which I have already discussed in this judgment. At that time apart from the provisions of the Constitution and the 1951 Act or rules or orders made thereunder, it was possible for an Election Tribunal to consider non-compliance with the provisions 'of any other Act or rules relating to the election'. When Mr. Siddharth Ray says that the words 'is entered in the electoral roll' in Section 2(e) of the 1951 Act should be construed as 'lawfully' entered in the electoral roll, he is really asking me to legislate. The definition of an 'elector' in Section 2(e), it seems to me is relevant for the purpose of sections like Section 5(c); according to this provision a person shall not be qualified to fill a seat, other than a reserved seat, in the Legislative Assembly of a State unless 'he is an elector for any Assembly constituency in that State': here 'elector' means in terms of Section 2(e) any person whose name is entered or appears in the electoral roll. But it is possible that although a person's name appears in the electoral roll, he suffers from disqualifications under the Constitution or under the 1951 Act. That is why, in Section 100(1)(a) of the Act of 1951 it is provided that an election may be declared void on the ground '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 .....'.The preambles to the 1950 and to the 1951 Act when compared side by side, make it clear that the Act of 1951 has nothing to do with the preparation of the electoral roll itself. In the premises, I am unable to accept this last contention of Mr. Siddhartha Ray.

44. I now come to Section 30 of the Act of 1950. It runs thus:

'No Civil Court shall have jurisdiction-

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

(b) to question the locality 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.'

45. Mr. Siddhartha Ray contends that a 'Civil Court' in this section does not mean a Court constituted under the 1951 Act to try election petitions. This is a Court contemplated by Article 329 of the Constitution which provides, inter alia, that no election to a Legislative Assembly shall be questioned except by an election petition presented in such manner as may be provided for by or under any law made by the appropriate Legislature. Mr. Ray relies on the Supreme Court's observation in Durgasankar's case ibid that the Election Tribunal is endowed with a 'special jurisdiction' (vide : [1955]1SCR267 ). In K. Kamaraja Nadar v. Kunju Thevar, : [1959]1SCR583 the Supreme Court accepts the view that an election contest is not an action at law or a suit in equity; but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power. In Inamati v. Desai Basavaraj : [1959]1SCR611 this view has been reaffirmed at page 701. On these authorities, Mr. Siddhartha Kay contends, that a Court trying election petitions is not a Civil Court at all: before this Court a person comes in the exercise of a constitutional right: the procedure of this Court has been laid down by statute; there is, therefore, no question of this Court hearing an election petition as a Civil Court: and. as such, Section 30 of the 1950 Act does not apply to this Court.

46. It should be remembered that the decisions of the Supreme Court on which Mr. Ray has relied, were on Election Tribunals constituted under the 1951 Act before its recent amendments. It is well known that a tribunal of this nature would not have any common law powers; but in the instant case we have to consider the provisions of Section 80A of the Act of 1951. as it stands after the amendment of 1960 providing, inter alia, that the 'Court having jurisdiction to try an election petition shall be the High Court'. Such a provision indicates that the High Courts in India have been conferred with an additional jurisdiction under Section 80A of the 1951 Act. In other words, a High Court has not ceased to be a Civil Court in the matter of trial of election petitions. In this connection it is useful to refer to the Supreme Court's judgment in B.M. Ramaswamy v. B.M. Krishnamurthy, : [1963]3SCR479 . This is a case under the Mysore Village Panchayat and Local Boards Act, 1959; an election petition was filed under Section 13 of the said Act in the Court of the Second Munsif Bangalore, for, inter alia, a declaration that the returned candidate was not only elected to the Panchayat of Byappanhalli: one of the petitioner's complaint was that the returned candidate was not ordinarily a resident of Byappanhalli and, therefore, he was disqualified from standing for the election from that constituency. Now. Section 9 of the said Act provided, inter alia, that the relevant part of the electoral roll prepared under the provisions of the Representation of the People Act. 1950 for the time beingIn force, of the Mysore Legislative Assembly shall be deemed to be the list of voters for the panchayat constituency. In view of this provision the Supreme Court, it appears, considers, inter alia. Section 30 of the 1950 Act and proceeds to observe as follows in paragraph 9 at page 461 of the judgment;

'Under Section 30 of the Representation of the People Act, 1950. no Civil Court shall have jurisdiction to Question the legality of any action taken by or under the authority of the electoral registration officer. The terms of the section are clear and the action of the electoral registration officer in including the name of the appellant in the electoral roll, though illegal, cannot be questioned in a Civil Court: but it could be rectified only in the manner prescribed by law, that is by preferring an appeal under Rule 24 (Sic 27) of the Rules, or by resorting to any other appropriate remedy .....'

47. To my mind, the above observations unambiguously establish that a High Court trying election petitions under the 1951 Act is in a similar position. It has no jurisdiction to question the legallity of inclusion of a person's name in an electoral roll except where it can be shown that there has been a violation of an express provision of the Constitution; but since Mr. Ray has contended that the High Court's jurisdiction in this regard is a special jurisdiction conferred by statute, I intend to quote what the Supreme Court has said in paragraph 10 at page 461 of this judgment. The observations are as follows:--

'The Act proceeds on the basis that the voters' list is final for the purpose of election. Under Section 10 of the Act, 'Every person whose name is in the list of voters of any Panchayat constituency shall, unless disqualified under this Act or any other law for the time being in force, be qualified to be elected as a member of the Panchayat'. The disqualifications are enumerated in Section 11. If he was not disqualified ..... theappellant was certainly qualified to be elected as a member of the Panchayat. The Act confers a special jurisdiction on the Munsiff to set aside an election, and he can do so only for the reasons mentioned in Section 13(3) of the Act. The relevant provision is in Section 13(3)(a)(d)(i). which relates to the improper acceptance of any nomination. In view of Section 10 of the Act, it cannot be said that there is any improper acceptance of the nomination of the appellant, for, his name being in the list of voters, he is qualified to be elected as a member of the Panchayat. There Is, therefore, no provision in the Act which enables the High Court to set aside the election on the ground that though the name of a candidate is in the list, it had been included therein illegally.'

48. Mr. Siddhartha Ray says that this is not a judgment on a Parliamentary election: but the distinction does not appear to be of substance. Reliance was also placed on the judgment of Shiv Ram v. Shiv Charan, . In this case the age of a returned candidate was challenged before an Election Tribunal under Section 100(1)(a) of the Act of 1951 and Article 173 of the Constitution. At page 133 in paragraph 22 of this judgment the Rajasthan High Court has considered Section 30 of the Act of 1950. Modi. J., speaking for the said High Court said: 'In the first place, neither the Election Tribunal trying an election dispute is a tribunal of original jurisdiction nor this Court while hearing an appeal from its decision, can be said to be a Civil Court as such. In the second place, the question before us taken in its essence is not whether any person was or was not entitled to be registered in any electoral roll for a constituency or as to 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 within the meaning of Section 30. But the question is whether the appellant was qualified to stand for the election, inasmuch as it is alleged that he lacked the minimum qualifying age of 25 years for such a purpose as required by Article 173 of the Constitution. We have no hesitation in saving that Section 30 of the Act of 1950 has no relevance in a matter of this kind, and, therefore, we overrule this objection .....', It is manifest that the judgment of the Rajasthan High Court was delivered in a different context. The Election Tribunal which exercised jurisdiction in this matter, was not or could not have been a Civil Court. Now, under the amended provisions of the Act of 1951 the High Court merely enjoys an additional jurisdiction: as I have said, it has not ceased to be a Civil Court. But the real distinction is that neither Section 30 of the Act of 1950 nor Section 36(7) of the Act of 1951 has any relevance to an election dispute regarding the age of a candidate under Article 173 of the Constitution: the election in such cases is challenged not on grounds mentioned in Section. 100(1)(d)(iv) of the Act of 1951 but on grounds specified in Section 100(1)(a) of the said Act.

49. Mr. Ray In support of his arguments also placed before me the cases of Viswanadhuni v. Election Commissioner, : AIR1955AP109 and : AIR1962Ker190 (FB). In these cases the dispute was with regard to the age of a candidate under the Madras Village Panchayats Act, 1959 and the ages of some of the electors in the mid-term elections for the Kerala Legislature Assembly respectively. For the purposes of the present election petition, we know, that there are specific constitutional provisions, regarding a candidate's age in Article 173; and a non-compliance with Article 173 comes within the scope of the Act of 1951. So far as the elector's age is concerned, the Kerala High Court, as we have seen earlier, has taken a view which is not accepted by the Punjab and Haryana High Court. But since the point in issue in this petition is not 'age' but 'residence' we need not enter into this controversy. In any event, assuming that the Kerala High Court is right, on a plain reading of Article 326 'age' and 'residence' cannot be placed in the same category.

50. For all the reasons aforesaid I am of opinion that the result of the election in the instant case has not been materially affected either by non-compliance with the provisions of the Constitution or [by non-compliance with the Act of 1951 or any rules or orders made under the Act of 1951. I am further of opinion that this Court has no jurisdiction to entertain or try the present petition or questions involved therein. These are my answers to issues Nos. 4 and 5.

51. Having regard to my decisions on issues Nos. 4 and 5 it is unnecessary for me to discuss any other issue raised in this petition. But both parties have adduced considerable oral and documentary evidence on the other issues and I, therefore, intend to express my views thereon be briefly as possible.

ISSUE No. 3.

52. Counsel for the respondent No. 1 has argued that the petitioner Kanailal Bhattacharjee was the proposer of the respondent No. 2 who was the Congress candidate in the election (Q. 157): under Section 30(1) of the Act of 1951 as proposer he was entitled to be present at the 'scrutiny of nominations' and, in fact, he was present: under Section 36(2) the Returning Officer, at the 'scrutiny' examines nomination papers and decides objections: Kanai has said in his evidence that he knew on the date of the scrutiny that Nikhil Das the respondent No. 1 was not ordinarily resident at premises No. 124-C, Dharamatolla Street and, as such, his name should not have appeared in the electoral roll of the Taltola Constituency; but he did not raise any objections to the validity of Nikhil Das' nomination paper (vide Qs. 166, 167, 175, 176 to 189, 804 to 817 and 885 to 993). In the premises, learned Counsel contends that the petitioner had the opportunity to object to the acceptance of Nikhil Das' nomination paper; he did not do so; he took the chance of a favourable result of the election; and now that the result has gone against his candidate he is raising the objection which he could have raised long ago before the Returning Officer. The Judicial Committee, says learned Counsel, in Chowdhuri Murtaza Hossein v. Mt. Bibi Bechunnissa, (1876) 3 Ind App 209 at p. 220 (PC) observed: 'On the whole, therefore, their Lordships think that the Appellant, having a clear knowledge of the circumstances on which he might have founded an objection to the arbitrator, proceeding to make their award, did submit to the arbitration going on; that he allowed the arbitrators to deal with the case as it stood before them, taking his chance of the decision being more or less favourable to himself; and that it is too late for him, after the award has been made, and on the application to file the award, to insist on this objection to the filing of the award. 'It is strongly urged in these circumstances on behalf of the respondent No. 1 that the petitioner has waived the irregularity or invalidity, if any, of the nomination paper of the said respondent.

53. I do not accept these contentions of the first respondent's Counsel for the1 sample reason that 'waiver', it is well known, is an intentional relinquishment of a known right; and unless in the instant case it is established that the petitioner had the right to object to Nikhil Das' nomination paper at the time of scrutiny it cannot be said that the petitioner has waived any right. I find from the relevant provisions of the 1951 Act and the rules thereunder that the petitioner had no such right. Under Section 36(7) for the purpose of scrutiny a certified copy of an entry in the electoral roll was conclusive. Moreover, under Rule 13 (2) (b) of the Registration of Electors' Rules, 1960 an objection to the inclusion of a name in the electoral roll can be preferred only by a person whose name is already included in that roll. In view of these provisions there can be no question of waiver as alleged in paragraph 11 of the Written Statement. The answer to this issue is in the negative.

ISSUES Nos. 1 and 2.

54. On the place of residence of Nikhil Das the returned candidate I have heard a fairly large number of witnesses. The examinations of the witnesses went on for several days. Numerous documents were also produced before me. As it is unnecessary to go into the details for reasons already stated, I would briefly express my reaction to the gamut of oral and documentary evidence before me which I have carefully considered.

(55 and 56) (After discussing evidence his Lordship proceeded:)

57. Nikhil Das in order to controvert the evidence tendered on behalf of thepetitioner, has called a number of witnesses and has tendered a fairly large number of documents; he has also been examined before me for several days: in fact, 1338 questions were put to him. It is true that there is considerable force in the argument of Mr. Siddhartha Sankar Ray for the petitioner that Nikhil Das cannot easily get away with frivolous explanations of the admissions made by him in the letters to the telephone authorities I have already referred to. Mr. Ray has also commented that it was undignified and dishonourable on the part of any person particularly a member of the Legislature to make untrue representations regarding his residence to governmental authorities if Nikhil Das was not actually living in those places. I cannot say that these comments of Mr. Ray are unjustified. I am not, however, concerned in this petition with the ethical or moral aspects of the behaviour of a legislator. I have to find out where, in fact, Nikhil was resided in order to be enrolled as a voter. And with a view to arrive at the correct conclusions on this matter, I have carefully considered the entire evidence oral and documentary on behalf of Nikhil Das.

58. Now, Section 31 of the Indian Evidence Act provides: 'Admissions are not conclusive evidence of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained'. In Nagubai v. B. Shamarao, : [1956]1SCR451 , the Supreme Court has said that what a party himself admits to be true may reasonably be presumed to be so; but before this rule can be invoked, it must be shown that there is a clear and unambiguous statement by the opponent such as will be conclusive unless explained. The Judicial Committee in Irshad Ali v. Mt. Kariman, 22 Cal WN 530 = (AIR 1917 PC 169) held that a statement in a document should prima facie be accepted as true as against the executant unless it could be shown by independent evidence to be false. In Chandra Kunwar v. Chaudhuri Narpat Singh, (1907) ILR 29 All 184 (PC) also the Privy Council has said that what a party himself admits to he true may reasonably be presumed to be so, and until the presumption is rebutted the fact admitted must be taken to be established. In the instant case we have to examine in the light of the aforesaid principles whether Nikhil Das has succeeded in explaining to the satisfaction of this Court the admissions he had made in his letters to the telephone authorities.

59-70. (After discussing evidence his Lordship proceeded:)

71. I hold, therefore, that N


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