1953 Supreme(Ori) 45

HIGH COURT OF ORISSA
Panigrahi, C. J. And Narasimham, J.
POLAKI KOTESAM - Appellant
Versus
S. M. PATNAIK, I. A. S. REGISTRATION OFFICER - Respondent
O. J. C.  52  Of  1953
Decided On : SEPTEMBER 08, 1953

The Election Commission has the power to direct the preparation of a fresh electoral roll for a constituency and to have the entire old roll, together with the amendments, printed and published as a single roll.

Headnote:

ELECTION - Electoral Roll - Preparation - Annual preparation - Electoral Roll first prepared under the Act to remain in force till 30th September 1952 - Every electoral roll subsequently prepared to come into force on 1st October next after the qualifying date - Electoral Roll draft-published on 7-8-1952 - Whether a list of amendments contemplated in Rule 22(1) of the Representation of the People (Preparation of Electoral Rolls) Rules, 1950 - Whether the revised roll published on 7-8-1952 (as a single roll) has not been prepared in compliance with the rules and as such is illegal - Whether the Election Commission acted under the proviso to Sub-rule (3) of Rule 22 and directed the entire electoral roll of the year 1950 to be brought up-to-date by incorporating all changes since the preparation of that roll, and caused it to be printed as a single roll - Whether the choice is given to the Commission under the rules either to have the entire old roll, together with the amendments, printed and published as a single roll as has been done in this case, or to prepare only a list of the amendments and publish it along with the original roll - Whether no question of illegality can therefore arise.

Fact of the Case:

The petitioners, four in number, are residents of Berhampur Municipality in Ganjam district and were registered as voters in the electoral roll prepared in the year 1950. At the general election held in January 1952, two candidates were returned to the Orissa State Legislative Assembly from the Berhampur constituency, but their election was set aside on 17-3-1953, by an order of the election tribunal, in Election Case No. 4 of 1952. A by election was directed to be held under Section 150, Representation of the People Act, 1950 (Act 43 of 1950) and 7-5-1953 was fixed as the last date for receiving nominations and 14-6-1953, for conducting the poll. On the 7th May one Sri Gadi Narayanamurti, an Advocate of Berhampur whose name had been registered in the electoral roll of 1950 filed nomination paper, but the Returning Officer, Berhampur Constituency, who is the opposite party No. 1 in these proceedings, rejected the nomination paper on the ground that his name was not found in the new electoral roll prepared in 1952. On 20-5-1953, the petitioners filed this petition under Article 226 of the constitution impleading the Returning Officer who was also the Electoral registration Officer for the Berhampur Constituency, as opposite party No. 1 and the other candidates whose nomination has been accepted, as opposite parties 2 to 6. The petitioners have prayed for the issuance of a writ "in the nature of mandamus or any other order directing opposite party no. 1 to treat the first-prepared roll of 1950 as the existing electoral roll for the purpose of the by election, and direct him not to conduct the election on the basis of the illegal electoral roll prepared in 1952. "

Finding of the Court:

The Court held that the Election Commission acted under the proviso to Sub-rule (3) of Rule 22 and directed the entire electoral roll of the year 1950 to be brought up-to-date by incorporating all changes since the preparation of that roll, and caused it to be printed as a single roll. This was perfectly within the Commission's power to do, as the choice is given to the Commission under the rules either to have the entire old roll, together with the amendments, printed and published as a single roll as has been done in this case, or to prepare only a list of the amendments and publish it along with the original roll. No question of illegality can therefore arise.

Issues: 1. Whether the electoral roll draft-published on 7-8-1952 is only a list of amendments contemplated in Rule 22(1) of the Representation of the People (Preparation of Electoral Rolls) Rules, 1950? 2. Whether the revised roll published on 7-8-1952 (as a single roll) has not been prepared in compliance with the rules and as such is illegal? 3. Whether the Election Commission acted under the proviso to Sub-rule (3) of Rule 22 and directed the entire electoral roll of the year 1950 to be brought up-to-date by incorporating all changes since the preparation of that roll, and caused it to be printed as a single roll? 4. Whether the choice is given to the Commission under the rules either to have the entire old roll, together with the amendments, printed and published as a single roll as has been done in this case, or to prepare only a list of the amendments and publish it along with the original roll? 5. Whether no question of illegality can therefore arise?

Ratio Decidendi: 1. The electoral roll draft-published on 7-8-1952 is not only a list of amendments contemplated in Rule 22(1) of the Representation of the People (Preparation of Electoral Rolls) Rules, 1950, but also includes the entire electoral roll of the year 1950 brought up-to-date by incorporating all changes since the preparation of that roll. 2. The revised roll published on 7-8-1952 (as a single roll) has been prepared in compliance with the rules and is not illegal. 3. The Election Commission acted under the proviso to Sub-rule (3) of Rule 22 and directed the entire electoral roll of the year 1950 to be brought up-to-date by incorporating all changes since the preparation of that roll, and caused it to be printed as a single roll. 4. The choice is given to the Commission under the rules either to have the entire old roll, together with the amendments, printed and published as a single roll as has been done in this case, or to prepare only a list of the amendments and publish it along with the original roll. 5. No question of illegality can therefore arise.

Final Decision: The petition was dismissed with costs of opposite party No. 1 which were assessed at Rs. 150/- (Rupees one hundred fifty only ).