Back
SUPREME COURT OF INDIA
A.N. RAY C.J.I., K.K. MATHEW, M.H. BEG, S.N. DWIVEDI, AND Y.V. CHANDRACHUD, JJ.
Hari Prasad Mulshankar Trivedi, Appellant
Versus
V. B. Raju and others, Respondents.
Civil Appeal No. 2650 (NCE) of 1972, D/- 28-8-1973.
Representation of the People Act, 1951 – Section 2 (1) (e), 19, 3, 16, 30, 100 (l) (a), 23 (3) and 100 (1) (d) (iii) - Constitution of India, 1950 - Article 326 and 327 - Mysore Village Panchayat and Local Boards Act, 1959 - Election Petition - Declaring Election Void - Illegally Entered Names in Electoral Roll - Whether findings arrived at by High Court of Gujarat in Election Petition on issues Nos. 1 and 5, which were tried as preliminary issues, are correct - Whether there is misjoinder of parties and causes of action - Whether this Court has jurisdiction to decide whether entries in electoral roll regarding respondent No. 4 and/or respondent No. 5 are valid or not - Whether respondents Nos. 4 and 5 in election petition were ordinarily resident in any of parliamentary constituencies - Whether finding of High Court is justified by those decisions - Whether any person is or is not entitled to be registered in an electoral roll for a constituency - Whether in view of provisions of Section 23 (3) of 1950 Act, name of any person can be entered in electoral roll subsequent to last date for making nominations and whether that question can be gone into by court when trying an election petition - Whether there was violation of Section 23 (3) or not - Whether vote of a person whose name was entered in electoral roll of constituency after last date for making nomination was valid - Whether a person whose name is entered in electoral roll is qualified under Constitution and whether he suffers from any of disqualifications specified in Section 16 can always be gone into by Court trying an election petition - Whether a person is ordinarily resident in a constituency for purpose of registering him as a voter is a jurisdictional fact - Whether ground taken in election petition that since these respondents were not ordinarily resident in any of Parliamentary constituencies of Gujarat - Whether these respondents were not qualified or were disqualified to be chosen to fill seat under Constitution - Whether a person is ordinarily resident in constituency in electoral roll of which his name is entered is manifest from scheme - Whether a person was ordinarily resident in a constituency were to be tried afresh in a court or tribunal trying an election petition – Held, In election petition for declaring election of respondents 4 and 5 in election petition void-with which alone Court is concerned in this appeal-was that they were not ordinarily resident in area covered by any parliamentary constituency in State of Gujarat and that their names had been illegally entered in electoral roll of respective constituencies - Requirement of ordinary residence as a condition for registration in electoral rolls is one created by Parliament by S. 19 of 1950 Act, and as said, Court see no reason why Parliament should have no power to entrust to an authority other than a court or a tribunal trying an election petition exclusive power to decide matter finally - In these circumstances Court do not think that it would be incongruous to infer an implied ouster of jurisdiction of court trying an election petition to go into question - That inference is strengthened by fact that under Section 100 (l) (d) (iv) of 1951 Act result of election must have been materially affected by non-compliance with provisions of Constitution or of that Act or of rules, orders made under that Act in order that High Court may declare an election to be void - Non-compliance with provisions of Section 19 of 1950 Act cannot furnish a ground for declaring an election void under that clause - As their names were entered in electoral roll and as they did not suffer from any of disqualifications mentioned in Section 16 of 1950 Act, they were electors within definition of term in Section 2 (1) (e) of 1951 Act - They were, therefore, qualified to be chosen as candidates under S. 3 of 1951 Act – Court think that intention of Parliament to oust jurisdiction of court trying an election petition to go into question whether a person is ordinarily resident in constituency in electoral roll of which his name is entered is manifest from scheme of 1950 and 1951 Acts - It would defeat object of 1950 Act if question whether a person was ordinarily resident in a constituency were to be tried afresh in a court or tribunal trying an election petition - Appeal partly allowed.
Judgment
MATHEW, J:- In this appeal by special leave, the question for consideration is whether the findings arrived at by the High Court of Gujarat in Election Petition No. 9 of 1972 on issues Nos. 1 and 5, which were tried as preliminary issues, are correct.
2. An election to elect four members of the Council of States from the State of Gujarat was to be held on April 8, 1972.
3. The appellant and respondents nos. 1 to 5 filed nominations. On scrutiny the returning officer held them to be valid. On April 8, 1972, the election was held at Gandhi Nagar and the appellant and respondents 2, 3 and 5 were declared elected.
4. On May 1, 1972, respondent no. 1 filed the election petition to declare the elections of the appellant and respondents 2, 3 and 5 void.
5. The main ground urged in the election petition for declaring the election of respondents 4 and 5 in the election petition (respondent 5 and the appellant respectively here) void-with which alone we are concerned in this appeal-was that they were not ordinarily resident in the area covered by any parliamentary constituency in the State of Gujarat and that their names had been illegally entered in the electoral roll of the respective constituencies in Gujarat and as they were not electors within the meaning of S. 2 (1) (e) of the Representation of the People Act, 1951, they were not eligible to become candidates in the election. Respondent No. 1 also raised several other contentions in support of the declaration prayed for.
6. The court framed issues Nos. 1 to 5 and tried them preliminarily and entered findings thereon in favour of respondent No. I, Mr. Raju.
7. In this appeal, the appellant challenges the correctness of the findings on issues Nos. I and 5. These issues are:
"1. Whether there is misjoinder of parties and causes of action?
5. Whether this Court has jurisdiction to decide whether the entries in the electoral roll regarding respondent No. 4 and/or respondent No. 5 are valid or not"?
8. Mr. B. Sen, counsel for the appellant, did not address any argument as regards the correctness of the finding on issue No. 1.
9. We are, therefore, only concerned with the correctness of the finding on issue No. 5. As already stated, the contention on the basis of which this issue was raised was that respondents Nos. 4 and 5 in the election petition were not ordinarily resident in any of the parliamentary constituencies in the State of Gujarat and as they had not fulfilled the condition for being entered in the electoral roll of any parliamentary constituency in Gujarat, they were not electors within the meaning of Section 2 (1) (e) of the Representation of the People Act, 1951, and were ineligible to stand as candidates in the election.
10. The High Court, on a review of the decisions of this Court found that the Court has jurisdiction to go into the question whether respondents Nos. 4 and 5 in the election petition were ordinarily resident in any of the parliamentary constituencies in the State of Gujarat as that was a condition precedent to the registering officer getting jurisdiction to enter their names in the electoral roll. The reasoning of the Court was that ordinary residence in a constituency was a jurisdictional fact and the registering officer cannot, by an erroneous decision, determine the jurisdictional fact wrongly and clothe himself with jurisdiction and enter the names of respondents 4 and 5 in the election petition in the electoral roll in violation of the provisions of Sec. 19 of the Representation of the People Act. 1950. It is, therefore, necessary to examine the decisions of this Court to see whether the finding of the High Court is justified by those decisions.
11. Before doing so, we think it proper to refer to the provisions of the Constitution and the Representation of the People Acts, 1950 and 1951 (hereinafter called the 1950 Act and 1951 Act respectively) which have a bearing on the subject.
12. Article 326 of the Constitution provides that the elections to t
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
