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2003(7) Supreme 124
Supreme Court of India
(From Kerala High Court)
V.N. Khare, CJI., Brijesh Kumar & S.B. Sinha, JJ.
P.T. Rajan —Appellant
versus
T.P.M. Sahir & Ors. —Respondents
Civil Appeal No. 3602 of 2002
Decided on 26-9-2003
Counsel for the Parties :
For the Appellant : Romy Chacko and K.L.N.V. Veeraanjaneyulu, Advocates.
For the Respondents : K.K. Venugopal, Sr. Advocate, E.M.S. Anam, Ms. Suchitra Menon and Fazlin Anam, Advocates.
Held : What is, therefore, contemplated under sub-section (1) of Section 21 is a publication of final roll upon the revision thereof to be made in the prescribed manner. The manner in which such a revision would take place is enumerated in the 1960 Rules. The rules, however, do not prescribe as to when such formal publication shall be made. Form No. 16, as referred to hereinbefore clearly states that upon consideration of the claims and objections filed by the affected persons the Registration Officer shall publish the amendment carried out in the mother roll. The mother roll in this case has been published in the year 1999. Final revision had also taken place in the years 2000 and 2001. As noticed hereinbefore, revision in 2001 had taken place in two periods, namely, from 15.3.2001 to 18.3.2001 and from 21.4.2001 to 23.4.2001. Indisputably, the revision carried out in the year 2000 as also during 2001 would be valid in law. Having regard to the provision contained in sub-section (3) of Section 23 of the 1950 Act, there cannot be any doubt that any order passed immediately before 3 p.m. on 23.4.2001 would be valid. The very fact that sub-section (3) of Section 23 prohibits any amendment, transposition or deletion of any entry after the last for making nominations for an election in that constituency is a pointer to the fact that till 3 p.m. of the date specified for filing nominations, directions for any amendment can be issued. Any order passed on the claims or objections filed in terms of Section 22 of the Act read with relevant provisions of the 1960 Rules would relate back from the date of publication of the electoral roll. Any amendment, transposition or deletion made in the electoral roll pursuant to or in furtherance of the directions made by the competent authority in the electoral roll upto 3 p.m. of the specified date for filing nominations would, therefore, be valid. It would not, therefore, be correct to contend that any publication of final roll which is made after 3 p.m. on 23.4.2001 would render the entire electoral roll invalid in law. In terms of sub-section (3) of Section 23 of the 1950 Act what would be invalid is the addition or deletion of names which have been made by the statutory authorities after 3 p.m. on the same date. It may be true that a person whose name appeared in the electoral roll at the time of filing of the nomination cannot be deleted thereafter and similarly no new names can be added. But the purport and object of sub-section (3), as noticed hereinafter, is to enable a person to exercise his right of affording his candidature cannot be taken away. If the name of such person was not included in the mother roll, his remedy was only to file an application for inclusion of his name in terms of Rule 26 of the 1960 Rules. It would, thus, bear repetition to state that the same has to be filed at least seven days prior to the date specified for filing nomination and not thereafter. (Para 35)
The appellant herein has not been able to show that names of how many persons were included after 3 p.m. on 23.4.2001 and how they have exercised their right of franchise. He has also failed to show by adducing any evidence that those persons whose names had been omitted would have voted for the second respondent. The least the appellant could do was to file an appropriate application before the Tribunal praying for inspection of ballot papers to find out the void votes which had been accepted so as to enable the High Court to arrive at a conclusion how casting of such void votes affected the outcome of such election. Further for inspection of ballot papers, the election petition must make out a strong prima facie case, only after setting out material facts in the Election Petition and leading evidence to that effect. (Para 74)
(ii) Representation of the People Act, 1950—Section 23(3)—Electoral role—Revision—After 3 p.m. of the date specified for filing of the nomination no correction by way of amendment, transposition or deletion of entry can be made—Sub section (3) of Section 23 is mandatory—However, publication of Electoral Roll is not mandatory.
Held : Sub-section (3) of Section 23 ex facie is imperative in character. It has been couched in a negative language. The word ‘shall’ has also been used. What is thereby, however, prohibited is that after 3 p.m. of the date specified for filing of the nomination no correction by way of amendment, transposition or deletion of the entry can be made. Publication of Electoral Roll, however, is not mandatory. (Para 32)
(iii) Interpretation of Statutes—Whether a statute is mandatory or directory, principles as to—Such a question must be posed and answered having regard to the purpose and object it seeks to achieve—User of words ‘shall’ or ‘may’ not decisive—A provision in a statute which is procedural in nature although employs the word ‘shall’ may not be held to be mandatory if thereby no prejudice is caused.
Held : A statute as is well-known must be read in the text and context thereof. Whether a statute is directory or mandatory would not be dependent on the user of the words “shall” or “may”. Such a question must be posed and answered having regard to the purpose and object it seeks to achieve. What is mandatory is the requirement of sub-section (3) of Section 23 of the 1950 Act and not the ministerial action of actual publication of Form 16. The construction of statute will depend on the purport and object for which the same had been used. In the instant case the 1960 Rules do not fix any time for publication of the electoral rolls. On the other hand Section 23(3) of the 1950 Act categorically mandates that direction can be issued for revision in the electoral role by way of amendment in inclusion and deletion from the electoral roll till the date specified for filing nomination. The electoral roll as revised by reason of such directions can therefore be amended only thereafter. On the basis of direction issued by the competent authority in relation to an application filed for inclusion of a voter’s name, a nomination can be filed. The person concerned, therefore, would not be inconvenienced or in any way be prejudiced only because the revised electoral role in Form 16 is published a few hours later. Result of filing of such nomination would become known to the concerned parties also after 3.00 p.m. Furthermore even if the statute specifies a time for publication of the electoral roll, the same by itself could not have been held to be mandatory. Such a provision would be directory in nature. It is well-settled principle of law that where a statutory functionary is asked to perform a statutory duty within the time prescribed therefor, the same would be directory and not mandatory. Paras 37 to 40)
Judgment
S.B. Sinha, J.—Whether non-publication of a final electoral roll would render a general election invalid in law is the core question involved in this appeal filed by the Appellant herein under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as ‘the 1951 Act’) which arises out of a judgment and order of the High Court of Kerala dated 7.3.2002 passed in E.P.No. 8 of 2001 whereby and whatunder his election petition was dismissed.
Background Fact :
2. The election in question was held for Kozhikode II Legislative Assembly Constituency on 10.5.2001. The first, second, third and fourth respondents herein contested the said election. The appellant herein was the election agent of the second respondent. The said election petition came to be filed in the following circumstances :
A preliminary electoral roll (mother roll) was published in 1999 which was revised on 1.1.2000 and 1.1.2001 purported to be in terms of continuous and special revision scheme. One revision was carried out between 15.3.2001 and 18.3.2001 and another between 21.4.2001 and 23.4.2001. The final electoral roll was published on 23.4.2001. Despite the fact that the last date of acceptance of nomination was 3 p.m., allegedly, the final electoral roll was published at 8 p.m. on 23.4.2001. The electoral roll consisted of 1,52,225 voters out of which 1,05,437 voters exercised their franchise. The result of the election was declared on 13.5.2001. The first respondent was declared elected having secured 48,886 votes whereas the second respondent secured 48,099 votes. The third and fourth respondents herein obtained 7,345 and 1,107 votes respectively. The winning margin was, thus, only 787 votes.
3. In the election petition, the appellant herein alleged that after 3 p.m. on 23.4.2001, names of 19,045 voters were deleted from the voters list; whereas 6,828 new names were added therein. The fact which, however, stands admitted is that in the 2001 revision, names of 18,839 voters were deleted whereas names of 7,003 voters were added.
4. The appellant herein in the election petition further alleged that the electoral roll as it stood at 3 p.m. on 23.4.2001 which had been published prior thereto became final on the expiry of the time fixed for acceptance of nominations for election and, thus, the deletion of names of 19,045 voters from the said roll without issuance of any notice was bad in law, as thereby the genuine voters who turned up at the polling stations had been turned away. Allegedly the majority of such persons were known supporters of the Left Democratic Front whose candidate was the second respondent. It was also furthermore contended that the names of 6,828 persons were illegally added after the publication of the final electoral roll on the said date; the majority of whom voted in support of the United Democratic Front to which the first respondent herein belonged to. According to the appellant, the said electoral roll in view of the prohibition contained in Section 23(3) of the Representation of the People Act, 1950 (for short, ‘the 1950 Act’) was void ab initio, as a result whereof the election of the first respondent became vitiated by reason of improper refusal of votes of 9,500 persons and improper reception of votes of 4,500 persons, which being void could not have been taken into consideration for the purpose of the result of the election.
Issues :
5. Having regard the pleadings of the parties the learned Tribunal framed the following issues :
“(1) Has the petitioner adequate cause of action to challenge the declaration of results made on 13.5.2001?
(2) Whether the E.P. is liable to be dismissed for non-joinder of necessary parties ?
(3) Whether the E.P. is liable to be rejected/dismissed for want of adequate pleadings?
(4) Whether the names of 19045 voters were deleted from the final electoral roll after 23.4.2001 without notice to them and in violation of law?
(5) Whether the refusal of voting right to the 19045 v
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