Judgment

HEGDE, J.:- The principal question raised in this appeal under S. 116A of the Representation of the People Act, 1951 (to be hereinafter referred to as the Act) is as to the scope of S. 23 (3) of the Representation of the People Act, 1950 (to be hereinafter referred to as the 1950 Act). A few subsidiary contentions have also been canvassed. They will be considered at the appropriate stage.

2. The election petition from which this appeal arises relates to the Darbhanga Local Authorities Constituency of the Bihar Legislative Council. The calendar for the election for that constituency was as follows:

1. Last date for filing nomination papers - 2-4-1968.

2. Date of scrutiny of nomination papers - 4-4-1968.

3. Last date for withdrawal of candidatures - 6-4-1968.

4. Date of poll - 28-4-1968.

5. Date of declaration of result - 29-4-1968.

3. Originally five candidates submitted their nominations for the election in question. On scrutiny all of them were held to have been validly nominated. Two of them later withdrew their candidatures within the period prescribed leaving in the field Shri Baidyanath Panjira, the appellant therein, Shri Raj Kumar Mahaseth, respondent No. 2 and Shri Gangadhar, respondent No. 3. There were six polling stations in the constituency. 134 votes were polled out of which 33 votes were polled at Dalsingsarai polling station. Counting of the votes showed that the appellant had secured 45, the second respondent 49 and the third respondent 40, first preference votes. As none of them obtained an absolute majority of the votes cast, the third respondent was eliminated and his second preference votes were taken into consideration. 14 of his second preference votes went to the appellant and 5 to the second respondent. Therefore the appellant was declared elected. His election was later challenged by the 1st respondent herein. The High Court has set aside the election and declared the 2nd respondent elected on the ground that on counting the validly cast votes, the second respondent has secured more votes than the appellant. It held that some of the votes cast were not valid votes.

4. The controversy relating to the validity of some of the votes polled arose under the following circumstances. In the electoral roll as it stood on the last date of filing nomination papers, the registered voters were only 123; 16 of the registered voters were of the members of Dalsingsarai Notified Area Committee. On April 13, 1968, as per a notification under Section 389 (c) of the Bihar and Orissa Municipal Act, 1922, 40 members were nominated as members to the said Notified Area Committee in place of the old members. Most of them were newly appointed members. To be exact 35 of the 40 members nominated were new members. Thereafter the electoral roll was amended on the 27th April, 1968, just a day prior to the polling. As per the amended electoral roll, there were 39 electors in the Dalsingsarai polling station. Only four of them stood registered in the electoral roll as it stood on April 2, 1968. 12 of those who were electors under the original roll were removed from the roll. 33 out of the 39 electoral included in the electoral roll relating to Dalsingsarai polling station exercised their franchise during the poll on April 28, 1968.

5. The question for consideration is whether it was within the competence of the electoral registration officer to amend the electoral rolls after the last date for making the nomination was over.

6. Provisions relating to the preparation of electoral rolls for the legislative Councils Constituencies are found in Part IV of the 1950 Act. Section 27 (2) of the Act prescribed the mode of preparation of the electoral rolls regarding the local authorities constituencies of a Legislative Council. Clause (e) of that sub-section stipulates that provisions of Sections 15, 16, 18, 22 and 23 shall apply in relation to local authorities constituencies as they apply in relation to assembly constituencies. Section 22 d