Case Note & Summary
The dispute arose from the election to the Bihar Legislative Council from the Darbhanga Local Authorities Constituency. The appellant, Baidyanath Panjiar, was declared elected after the poll held on April 28, 1968. The election calendar fixed the last date for filing nominations as April 2, 1968. As per the electoral roll on that date, there were 123 registered voters, including 16 members of the Dalsingsarai Notified Area Committee. On April 13, 1968, the composition of the Notified Area Committee was changed, and 40 new members were nominated, most of whom were not previously registered voters. On April 27, 1968, the electoral roll was amended to include 39 electors at the Dalsingsarai polling station, of whom only four were from the original roll. Of these 39, 33 voted on April 28, 1968. The total votes polled were 134. After counting first preference votes, no candidate secured an absolute majority. The third respondent was eliminated, and after distributing second preference votes, the appellant was found to have secured 59 votes against 54 for the second respondent. The first respondent challenged the election, alleging that the inclusion of new voters after the last date for nominations was illegal and that the 33 void votes materially affected the result. The High Court held that section 23(3) of the Representation of the People Act, 1950 was mandatory and that the electoral registration officer had no power to amend the roll after April 2, 1968. It held the 33 votes void, excluded them, and found that the second respondent had secured a majority of valid votes. Consequently, the High Court set aside the appellant’s election and declared the second respondent elected. The appellant appealed to the Supreme Court under section 116A of the Representation of the People Act, 1951. The principal legal issue before the Supreme Court was the scope of section 23(3) of the 1950 Act. Subsidiary issues related to an alleged conflict with section 27(2) of the same Act, the interpretation of section 62(1) of the 1951 Act regarding the relevant electoral roll, and whether the contravention fell within the grounds for setting aside an election under section 100(1)(d)(iii) of the 1951 Act. The appellant argued that section 23(3) was not mandatory, that section 27(2) empowered the officer to issue the direction, that section 62(1) entitled persons enrolled on the date of poll to vote, and that even if a contravention occurred, it did not fall under section 100. The respondents argued that the provision was mandatory and that the votes were void. The Supreme Court examined the scheme of Part IV of the 1950 Act and held that section 23(3) is mandatory, intended to prevent manipulation after the candidates are known. The provision takes away the jurisdiction of the officer during the prohibited period. The Court rejected the argument of a conflict with section 27(2), noting that section 27(2)(e) incorporates the provisions of section 23, and that the electoral roll as on the last date for nominations is final. Interpreting section 62(1) of the 1951 Act, the Court held that the electoral roll referred to is the one in force on the last date for nominations, not the altered roll. Consequently, the votes cast by the newly included persons were void. The reception of these void votes had materially affected the result, as their number exceeded the margin of victory. Therefore, the High Court was correct in setting aside the election under section 100(1)(d)(iii) and declaring the second respondent elected. The Supreme Court dismissed the appeal, upholding the High Court’s decision, and made no order as to costs.
Headnote
A) Election Law - Electoral Roll Amendment - Mandatory Prohibition - Representation of the People Act, 1950, Section 23(3) - The Supreme Court held that the prohibition in section 23(3) against amending, transposing or deleting any entry or including a name in the electoral roll after the last date for making nominations and before the completion of the election is mandatory. The provision takes away the power of the electoral registration officer to interfere with the rolls during that period, and any such inclusion is void. Held that the legislative mandate is mandatory having regard to the language and the purpose of preventing manipulation in constituencies with limited electors. B) Election Law - Conflict Between Sections - Harmonious Construction - Representation of the People Act, 1950, Sections 23(3) and 27(2) - The Court rejected the contention that section 23(3) is subject to section 27(2), holding that there is no conflict. Section 27(2)(e) incorporates the provisions of section 23, and a fair reading of the clauses in section 27(2) indicates that the electoral roll as it stood on the last date for making nominations is final for that election. Held that the direction by the electoral registration officer to include names after the last date was in contravention of the mandatory bar. C) Election Law - Right to Vote - Applicable Electoral Roll - Representation of the People Act, 1951, Section 62(1) and Representation of the People Act, 1950, Section 23(3) - The Court interpreted that the electoral roll referred to in section 62(1) of the 1951 Act, which entitles a person entered in the electoral roll to vote, must be understood as the roll that was in force on the last date for making nominations in view of section 23(3) of the 1950 Act. Consequently, persons whose names were included after that date are not validly enrolled voters for that election. Held that the votes cast by such persons are void. D) Election Law - Grounds for Setting Aside Election - Improper Reception of Void Votes - Representation of the People Act, 1951, Section 100(1)(d)(iii) - The Court held that the inclusion of new names in the electoral roll after the last date for nominations rendered the votes cast by those persons void. As these void votes were received and materially affected the election result, the High Court was justified in setting aside the election under section 100(1)(d)(iii). Held that the election of the returned candidate was rightly declared void and the candidate with the majority of valid votes was declared elected.
Issue of Consideration
Whether it was within the competence of the electoral registration officer to amend the electoral rolls after the last date for making the nomination was over, given the prohibition in section 23(3) of the Representation of the People Act, 1950; and whether the votes cast by persons whose names were so included are valid.
Final Decision
The Supreme Court dismissed the appeal and upheld the High Court's order setting aside the election of the appellant and declaring respondent No.2 elected. The Court held that section 23(3) of the Representation of the People Act, 1950 is mandatory and the electoral registration officer had no power to include new names after the last date for nominations. The votes of such persons were void and their reception materially affected the result, thus the election was void under section 100(1)(d)(iii) of the 1951 Act.
Law Points
- Legal points not extracted
- Section 23(3) of the Representation of the People Act
- 1950 is mandatory and takes away the power of the electoral registration officer to amend the electoral roll after the last date for making nominations and before the completion of the election
- Votes cast by persons whose names were included in the electoral roll in contravention of section 23(3) are void
- The electoral roll referred to in section 62(1) of the Representation of the People Act
- 1951 is the roll in force on the last date for making nominations
- Improper reception of void votes that materially affects the election result is a ground for setting aside the election under section 100(1)(d)(iii) of the 1951 Act.
