The finality of the electoral roll cannot be challenged in an Election Petition, and the inclusion of persons in the electoral roll by an authority empowered in law cannot be a ground for setting aside an election of a returned candidate.

I.A. Ansari, J.

1. By making this application, the applicant, who is respondent No. 1 in the Election Petition No. 1/2004, has challenged the very maintainability of the Election Petition.

2. In Election Petition No. 1/2004 aforementioned, the election petitioner has challenged the result of the election declaring respondent No. 1, Sri Liansuania, elected to Mizoram Legislative Assembly from No. 28 Phuldungsei (ST) LA Constituency of Mizoram, the declaration of the result having been made on 2.12.2003. The case of the election petitioner being, in brief, thus : Out of the total number of 10,274 votes polled in the said election, the respondent No. 1 received 3,788 votes and the election petitioner received 3,765 votes. In the said election, a large number of persons belonging to Bru community residing in transit camps of Tripura, who, though, according to the election petitioner, not entitled to be enrolled as voters, were, in fact, included in the voters list and a special polling station for these voters was set up, at Tuipuibari, in order to enable them to cast their vote under No. 28 Phuldungsei (ST) LAC. The names of these ineligible voters were included, according to the election petitioner, in the final Electoral Roll of the Constituency in violation of the various procedural mandates stipulated under the Representation of the Peoples Act, 1950, and the Registration of Electors Rules, 1960. The election petitioner alleges that at the said special polling station at Tuipuibari, 86 of ineligible Bru voters had cast their votes and out of the votes, so cast, the respondent No. 1 secured 35 votes, while the election petitioner secured 6 votes. Thus, according to the election petitioner, if the alleged void votes of those Bru voters are excluded from the total number of valid votes polled by the respondent No. 1 as well as the election petitioner, the election petitioner would have been declared elected from the said Constituency.

3. Heard Mr. SS Dey, learned counsel for the application-respondent No. 1, and Miss. A Baruah, learned counsel, for the election petitioner-opposite party.

4. The challenge to the election of the respondent No. 1 is posed on the ground that the electoral roll contained names of persons, who were not qualified to cast their votes in the election, in question. In short, the case of the election petitioner rests on the legality and/or validity of the final electoral roll prepared and published for the constituency concerned.

5. It is no longer res Integra that the finality of the electoral roll cannot be challenged in an Election Petition even if the some irregularities had taken place in the preparation of the electoral roll or in the publication thereof.

6. In Nripendra Bahadur Singh v. Jai Ram Verma (AIR 1977 SC 1992 ), the election of the returned candidate was challenged on the ground of inclusion of certain electors in the electoral rolls, who had allegedly ceased to be qualified from being so enrolled, and, as such, were not entitled to vote, their participation in the election having materially affected the result. The Apex Court following the Constitution Bench decision in Hariprasad Mulshankar Trivedi v. V.B. Raju and Ors. held :

"The finality of the electoral roll cannot be challenged in an election petition even if certain irregularities had taken place in the preparation of the electoral roll or if subsequent disqualification had taken place and the electoral roll had on that score not been corrected before the last hour of making nominations. After that deadline, the electoral roll of a constituency cannot be interfered with and no one can go behind the entries except for the purpose of considering disqualification under Section 16 of the 1950 Act. In the case, in question, the persons, whose names were recorded in the electoral roll and participated in the voting, were not disqualified under Section 16 of the 1950 Act. That being the position, it would have been wrong on the part of the P