Judgment

HEGDE, J.:- This appeal under Sec. 116-A of the Representation of the People Act, 1651 (to be shortly referred to hereinafter as the Act) is directed against the decision of the High Court of Punjab and Haryana in Election Petition No. 1 of 1968 on its file. In that election petition, Kundan Singh, the 1st respondent to this appeal challenged the validity of the Returning Officer s declaration that the appellant has been duly elected from the Hoshiarpur Local Authorities Constituency to the Punjab Legislative Council in the election held in April, 1968. The High Court came to the conclusion that some of the votes polled in that election were invalid votes and if the valid votes alone are taken into consideration, as it should have been, then the 1st respondent is entitled to be declared elected. It accordingly set aside the declaration made in favour of the appellant and declared the 1st respondent as having been duly elected.

2. We may now briefly state the material facts. In March 1968, the Hoshiarpur Local Authorities Constituency was called upon to elect one member to the Punjab Legislative Council. The election calendar was as follows:

(1) The last date for filing nomination papers - 12-3-1968.

(2) Date of scrutiny of the nomination papers - 13-3-1968.

(3) The last date for withdrawal of candidatures - 16-3-1968.

(4) Date of polling - 7-4-1968.

(5) Date of counting and declaration of result - 8-4-1968.

In that election, as many as five candidates contested. They are the appellant and the respondents herein. On April 8, 1968, the Returning Officer after counting the votes cast declared the appellant to be the successful candidate as he had secured one vote more than the 1st respondent. The 1st respondent challenged that declaration in the aforementioned election petition on various grounds of which, at present, we are only concerned with one viz., that the vote of Hari Singh should have been held to be a void vote as his name was included in the electoral roll on April 5, 1968, i.e., just two days before the date of polling. In his turn the appellant filed a recriminatory petition contending inter alia that the vote of Tarsem Singh was void as by the time the polling took place, he had become a government servant and the votes of two other persons namely Harjinder Singh and Balwant Singh were void as their names were included in the electoral roll after the last date for filing nominations for the election. Other grounds taken in the recriminatory petition are not relevant for our present purpose. They have not been pressed before us.

3. The election petition came up for trial before Mahajan J. The learned Judge submitted the following question to a Full Bench for decision:

"Whether allegation in para. 4 (a) pertaining to the vote of Hari Singh is correct and the vote was void and was polled in favour of respondent No. 1 in violation of the Rules and has materially affected the result of the election of respondent No. 1".

The Full Bench by majority came to the conclusion that the vote of Hari Singh was void as his name was included in the electoral roll of the constituency after the last date for making nominations for the election in that constituency. Thereafter the case was sent back to Mahajan, J., for deciding the issues left undecided. On the basis of the opinion expressed by the Full Bench, the learned Judge came to the conclusion that the votes of Hari Singh, Harjinder Singh and Balwant Singh were void votes. Consequently he recounted the votes validly cast and came to the conclusion that the 1st respondent had been duly elected. He gave a declaration to that effect.

4. As seen earlier, the main contention in this appeal relates to the true effect of sub-section (3) of Section 23 of the Representation of the People Act, 1950 (to be hereinafter referred to as "the 1950 Act") which prohibits the deletion of any entry or inclusion of any name in the electoral roll of a constituency after the last date for making nominati