VERY IMPORTANT POINT
To question the correctness of the statement as to his ordinary residence made by the holder of a declared office, the Electoral Registration Officer must be in possession of evidence to the contrary. That is a pre-requisite for the non-acceptance of the statement of the holder of a declared office.

Headnote:Representation of People Act, 1951-Section 20(4), (5) and (7) r/w Rule 7 of the Registration of Electors Rules, 1960-Statement of holder of declared office as to his ordinary residence-Enquiry into correctness of-Condition precedent to-Statement of holder of declared office made in the Form No. 1 and verified must be accepted as correct in absence of evidence to contrary-It can be questioned, but only if Electoral Registration Officer has evidence to the contrary-Electoral Officer must inform holder of declared office, substance of such evidence before start of enquiry.
       By reason of sub-section (4) of Section 20, a person who holds a declared office is deemed by law to be, on any date, an ordinary resident of a constituency in which he would ordinarily have resided but for the fact that he holds such declared office. For this purpose, by reason of sub-section (5) of Section 20, the statement of the holder of the declared office, made in the form and verified as required, must be accepted as correct "in the absence of evidence to the contrary". Where the question of such a person s ordinary residence does arise, it has, by reason of sub-section (7) of Section 20, to be "decided by reference to the facts of the case". (The sub-section speaks of rules in this behalf but none have been framed. It is, therefore, clear that the statement of the holder of a declared office is not always to be accepted as correct. It can be questioned, but only if the Electoral Registration Officer has "evidence to the contrary". Therefore, to question the correctness of the statement as to his ordinary residence made by the holder of a declared office, the Electoral Registration Officer must be in possession of evidence to the contrary. That is a pre-requisite for the non-acceptance of the statement of the holder of a declared office. If the Electoral Registration Officer has such evidence, he must inform the holder of a declared office accordingly, and state the substance of such evidence so that the holder of the declared office may rebut it in the course of the enquiry on facts that must follow. The enquiry has to be "decided" on the facts of the case; its quasi-judicial character is clear. (Paras 13 & 14)
       In the instant case, the enquiry was opened by the letter of the third respondent dated 2nd June, 1994 whereby the first respondent was asked to furnish evidence in support of his "claim of ordinary residence as stated in Form No. 1". Form No. 1 relates to the declaration of his ordinary residence by a person holding a declared office. The claim in Form No. 1 was filed by the first respondent on 7th June, 1993 when he was already a Cabinet Minister and thus the holder of a declared office. His statement therein could, having regard to the true interpretation of Section 20, sub-sections (4) and (5), have been questioned by the third respondent only if the third respondent was possessed of evidence to the contrary and the third respondent had intimated to the first respondent that fact and the substance of such evidence. There is nothing to indicate that the third respondent had any evidence to the contrary, and he certainly did not so state in his letter dated 2nd June, 1994. In fact, he called upon the first respondent to adduce his evidence. (Para 15)
       Held that the first respondents statement in Form No. 1 could not have been questioned and the enquiry in this behalf is bad in law. The enquiry and all notices and orders pertaining thereto must stand quashed. (Paras 15 & 16)

JUDGMENT

Bharucha, J. -This appeal is filed by the Election Commission of India, by special leave, against the judgement and order of a learned Single Judge of the Gauhati High Court on a writ petition filed by the first respondent.

2. The first respondent was registered as an elector in the New Delhi Parliamentary Constituency when, on 21st June, 1991, he became a Minister in the Union Cabibet. By reason of the provisions of Article 75(5) of the Constitution, it was requisite that he be elected to either House of Parliament within six months.

3. On 27th August, 1991 the first respondent preferred a claim in Form No. 6 prescribed under Rule 26 of the Registration of Electors Rules, 1960 for inclusion of his name in the electoral roll of 52- Dispur Legislative Assembly Constituency in the State of Assam ("the said constituency") stating that his place of residence was c/o Dr, Hema Prabha Saikia, Ward No. 34, Sarumataria Hill, P.O. Assam Sachivalaya, Dispur. He stated therein, "My name may have been included in the electoral roll in U.T. Delhi State in which I was ordinarily resident earlier at the address mentioned below and, if so, I request that the same may be excluded from that electoral roll". The third respondent,the concerned Electoral Registration Officer, directed that the claim be posted on the notice board of his office, inviting objections within seven days. On 11th September, 1991 the first respondent s name was registered in the said constituency. On 26th September, 1991 the first respondent was elected to the Rajya Sabha from the State of Assam. On 29th September, 1991 his name was deleted from the Delhi electoral roll.

4. On 29th September, 1992 the appellant forwarded to the first respondent Form No. 1, applicable to the holder of a declared office, for his statement as to the place of his ordinary residence. On 7th June, 1993 the first respondent filed that form stating that, but for his holding the office of a Union Cabinet Minister, he would have been ordinarily resident at the aforementioned address in the area of the said constituency. On 3rd September, 1993 the first respondent was called upon to furnish evidence in support of the said statement about his ordinary residence. On 18th September, 1993 the third respondent informed the first respondent that it has been decided his name on the rolls of the said constituency.

5. On 22nd and 28th December. 1993 the appellant wrote to the Chief Electoral Officers of all States and Union Territories about the malpractice of registering persons of the electoral rolls of States and Union Territories where they were not ordinary resident, and instructed them to look into the matter.

6. Pursuant to such instruction, the third respondent wrote to the first respondent on 2nd February, 1994, thus :

"Whereas the Election Commission has cast doubt on your declaration of ordinary residence in S. 75, of 52 Dispur LAC. I am to request you to kindly furnish evidence in support of your claim of ordinary residence as stated in Form No. 1 earlier submitted." (Emphasis supplied)

This was followed by another communication on 16th February, 1994. On 18th and 22nd February, 1994 the first respondent s Private Secretary sought time to reply.

7. On 1st March, 1994 the then Chief Election Commissioner passed an order with specific reference to the first respondent. He referred to the facts and to investigations in his case in some detail. He then stated :

"40. From the facts set out above the following inferences would seem to arise :-

(a) That when on 29.8.1991 Shri Manmohan Singh filed his claim application for being included in the electoral rolls of 52-Dispur Assembly Constituency in the State of Assam he knew that he was registered as an elector in Delhi being an ordinarily resident of Delhi and not of Assam. The address c/o Dr. Hem Prabha Saikia, wife of the Chief Minister of Assam, was acquired only with a view to getting registered as an el

Click Here to Read the rest of this document