Judgment

GOSWAMI, J. - This appeal under Section 116A of the Representation of the People Act, 1951, is directed against the judgment of the Allahabad High Court in the matter of an election to the U. P. Legislative Council held on April 28, 1974, from the Local Authorities Constituency, Faizabad. We are concerned here with Kshettra Samitis which are the local authorities (see Fourth Schedule of the Representation of the People Act, 1950, Uttar Pradesh). Besides the appellant, ten candidates (respondents 1 to 10) filed their nomination papers. Six of them (respondents 5 to 10) had withdrawn their candidature. Out of the five left there was no contest worth the name from respondents 2, 3 and 4. The principal contest, therefore, was between the appellant and respondent No. 1 (hereinafter to be described only as respondent). The last date for submission of nomination papers was April 2, 1974. At the poll the appellant secured 927 votes and the respondent 909, the difference being only of 18 votes. The appellant was therefore, declared elected on April 29, 1974.

2. The respondent filed an election petition (being No. 11 of 1974) before the Lucknow Bench of the Allahabad High Court. As many as 13 issues were raised before the High Court and we are principally concerned with only one question which is the subject-matter of issue Nos. 1, 4 and 13. The issues read as follows:-

"1. (a) Whether the votes cast by the persons mentioned in Cl. (a) of para. 4 of the election petition were void?

(b) Were those persons not electors within the meaning of S. 2 (1) (a) of the Representation of the People Act, 1951 on 28-4-1974 when the election was held?

4. (a) Whether the five persons named in para 8 of the election petition had ceased to be co-opted members of Kshettra Samitis after the expiry of the terms of Kshettra Samiti Bhiaon in the year 1973?

(b) Can this question be enquired into by this Tribunal?

(c) If so were the said persons not electors on the date of election and as such not entitled to vote?

(d) Whether the votes of the said persons are void?

(e) Whether the reception of the void votes of the said persons materially affected the result of the election?

13. (a) Whether the electoral roll on the basis of which election was held is ultra vires as alleged in para 17 of the election petition?

(b)Whether this question can be taken notice of by the Tribunal in this election petition?

(c) Whether the election held on the basis of the said electoral roll is void?

3. These issues cover the case of 17 persons whose names were recorded as electors in the electoral rolls grounded on the requisite qualification that 13 of them were presidents of their respective Co-operative Societies and the remaining 4 were co-opted members of Kshettra Samitis. But since they had ceased to be the Presidents or co-opted members on the new office bearers being subsequently elected in their places long before the notification of the election, they were wrongly continued in their electoral rolls and as such were not entitled to vote notwithstanding the presence of their names in the electoral rolls. Their participation in the election has materially affected the result. This is the case of the respondent.

4. The High Court accepted the contention and set aside the election observing as follows:-

"On these facts it is more than evident that the concerned officers failed in their mandatory duty and they did not correct the electoral roll up-to-date as required by Section 27. This incorrect electoral roll could not therefore be deemed to be the electoral roll for the time being in force within the meaning of Section 2 (1) (e) read with Section 62 of 1951 Act. The election held on the basis of this invalid and ultra vires electoral roll is also void."

5. The High Court, however, observed that "it is not known in whose favour they exercise their votes so as to exclude them."

6. We may here observe that if the High Court is right on the first point a further question will arise wheth