Patna High Court
Dr. Ajay Kumar Singh vs Sri Awadhesh Narayan Singh on 23 April, 2014
Author: V.N. Sinha
Bench: V.N. Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Election Petition No.6 of 2011
In the matter of an election petition under Sections 80, 80A and 81 of the
Representation of the People Act, 1951 calling in question the election of
sole respondent, namely, Awadhesh Narayan Singh, who has been declared
elected as a Member of Bihar Legislative Council from 02-Gaya Graduate
Constituency for which election was held on 10.04.2011.
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Dr. Ajay Kumar Singh, son of Late Tapeshwar Singh, resident of Mohalla Bandhan Tola,
P.O. Nawada, P.S. Nawada, Ara, District Bhojpur at Ara
.... .... Petitioner
Versus
Sri Awadhesh Narayan Singh, son of Late Keshav Prasad Singh, resident of Village
Kothua, P.O. Agiaon, P.S. Agiaon Bazar, District Bhojpur at Ara
.... .... Respondent
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Appearance :
For the Petitioner : Mr. Shashi Bhushan Kumar Manglam, Advocate
Ms. Anita Kumari, Advocate
For the Respondent : Mr. S.N.P. Sharma, Sr. Advocate
Mr. Awadhesh Kumar Pandey, Advocate.
Mr. Surendra Kumar Singh, Advocate.
Mrs. Sudha Singh, Advocate.
Mr. Amrendra Kumar Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE V.N. SINHA
C.A.V. JUDGMENT
Date: 23 -04-2014
By filing the present Election Petition, election
petitioner has challenged the election of sole respondent as
member of Bihar Legislative Council from 02-Gaya Graduate
Constituency held on 10.04.2011 as also prayed to declare the
said election void under Section 100 of the Representation of the
People Act, 1951 (hereinafter referred to as the "Act") and sole
respondent ought not to have been declared elected from the said
constituency as he secured 16242 votes, less than 16550 votes,
the quota fixed for being declared elected under Rule 75 of the
Conduct of Election Rules, 1961, which would appear from result-
sheet dated 14.04.2011 (Annexure-1).
Patna High Court E.P. No.6 of 2011 dt.23-04-2014 2
2. In support of the aforesaid plea election
petitioner has relied on the provisions of Section 21 of the
Representation of the People Act, 1950 (hereinafter referred to as
the "1950 Act") and Rule 31 of the Registration of Electors Rules,
1960 and with reference to the aforesaid provisions, it is submitted
that the existing electoral roll i.e. final electoral roll of 2004
election was published as draft electoral roll for the impugned
election, 2010 calling upon the eligible voters not included in the
draft electoral roll published for the impugned election to submit
application in Form 18 by 11.11.2010 for being included as a voter
in the electoral roll through public notice dated 01.10.2010
(Annexures- 3, 3/1) published in Dainik Jagran and Hindustan
newspaper is wholly illegal as the notice (Annexures- 3, 3/1) has
not called upon the elector to submit objection against any
erroneous entry in the draft voter-list.
3. It has been specifically averred in paragraph 30
of the Election Petition that though claim for inclusion of name in
the voter-list was entertained but objections were returned on the
ground that notice does not call for any objection.
4. It has been further averred in paragraph 31 of
the Election Petition that after the last date for filing of claim for
inclusion of name in the electoral roll without receiving any
objection against the new applicant for inclusion in the voter-list
for the impugned election final voter-list for the impugned election
was published indicating altogether 84,967 voters in the voter-list.
Patna High Court E.P. No.6 of 2011 dt.23-04-2014 3
5. In paragraph 33 of the Election Petition
petitioner has averred that having gone through the voter-list
published for the impugned election it came to the notice of the
petitioner and other candidates that there are many mistakes in
the final voter-list, particularly in respect of name of some of the
voters, parentage, same name appeared at more than one place in
the voter-list. Highlighting the mistake(s) in the voter-list,
representation(s) dated 15.02.2011, 25.10.2010, 29.10.2010,
14.02.2011and 11.03.2011 (Annexure-4 series) were filed.
6. In paragraph 35 of the Election Petition it has been further averred that after receipt of objection the Electoral Registration Officer though noticed mistake in the electoral roll of all the eight districts constituting 02-Gaya Graduate Constituency but the Electoral Registration Officer directed for removal of name included twice only from the voter-list of Rohtas district where majority of the voters were supporters of the election-petitioner.
7. In paragraph 36 of the Election Petition it has been further averred that in Rohtas district name of 2947 voters was entered twice, which was directed to be removed from the voter-list. After removal of 2947 voters from the voter-list of 02- Gaya Graduate Constituency the total number of voters in the voter-list became 82600, which according to the election-petitioner was not correct as after removal of 2947 voters the figure should have been 82020 but in the voter-list total voters have been shown as 82600.
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8. In paragraph 37 of the Election Petition petitioner has further averred that in all the districts constituting 02-Gaya Graduate Constituency the number of voters whose name was mentioned twice in the voter-list was in fact 4252, which if deducted from the total number of voters of 02-Gaya Graduate Constituency, as published by the Electoral Registration Officer, the exact number of voters would come to 80715 and not 82600.
9. In paragraph 39 of the Election Petition petitioner has further averred that on the date of poll he was shocked to learn that the total number of voters have been increased to 87747.
10. In paragraph 40 of the Election Petition, election petitioner has averred that the increase of more than 7000 voters after the final publication of voter-list by the Electoral Registration Officer/Returning Officer was in connivance with the sole respondent. It is further stated in the same paragraph that 7000 voters, whose name were included in the voter-list after final publication at the instance of sole respondent, were none but supporters of the sole respondent and their name was included in the voter-list in a calculated manner to enable them to exercise their franchise in favour of sole respondent, which has materially affected the result of the impugned election. Highlighting the illegal inclusion of 7747 voters in the electoral roll after publication of final voter-list petitioner submitted objection dated 10.04.2011 (Annexure-5) before the Returning Officer.
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11. In paragraph 44 of the Election Petition election petitioner has further averred that despite receipt of objection (Annexure-5) the Returning Officer was adamant to secure the victory of sole respondent and ignoring the objection of the petitioner (Annexure-5) proceeded to declare sole respondent elected as member of Bihar Legislative Council from 02-Gaya Graduate Constituency though he has not secured the minimum quota of votes fixed for such declaration, as contemplated under Rule 75 of the Conduct of Election Rules, 1961 and his election is fit to be set aside under sub-section (1) of Section 100 of the Act.
12. By filing written statement the sole respondent has submitted that the Election Petition is fit to be dismissed under Section 86 (1) of the Act for non-compliance of mandatory provisions of Sections 81, 82 and 117 of the Act, as according to sole respondent copy of the Election Petition served on him is not true copy of the Election Petition, as is required to be served in terms of sub-section (3) of Section 81 of the Act.
13. In paragraph 4 of the written statement sole respondent has averred that Election Petition is also fit to be dismissed under Order VII Rule 11 of the Code of Civil Procedure as the material facts constituting cause of action have not been stated in the Election Petition.
14. In paragraphs 5, 7, 8 of the written statement sole respondent has stated that the allegations set out in paragraphs 17 to 45 read with Annexures- 2 to 5 of the Election Patna High Court E.P. No.6 of 2011 dt.23-04-2014 6 Petition under reply are beyond the scope and ambit of Sections 100, 101 of the Act as the aforesaid allegations are about commission of illegalities/ irregularities in preparation, maintenance of voter-list, which is not justiceable in the trial of Election Petition and pleadings made in paragraphs 17 to 45 are required to be deleted from the pleadings of the Election Petition under Order VI Rule 16 of the Code of Civil Procedure.
15. In paragraph 6 of the written statement sole respondent has referred to Section 30 of the 1950 Act, which according to sole respondent bar/exclude the jurisdiction of Civil Court to probe, decide the illegalities/irregularities committed in preparation, maintenance of electoral roll. According to sole respondent Civil Court referred to in Section 30 of the 1950 Act will also include High Court when it is trying an Election Petition filed under the Act.
16. In paragraph 11 of the written statement sole respondent has dealt with the submission of the petitioner made in paragraph 10 of the Election Petition that the declaration of result of the impugned election in favour of sole respondent is materially affected under sub-section (1)(d)(iv) of Section 100 of the Act and has asserted that the submission is wholly misconceived, as according to sole respondent no facts indicating as to how the result of the impugned election in favour of sole respondent is materially affected has been averred either in paragraph under reply or in any other paragraph of the Election Petition. Patna High Court E.P. No.6 of 2011 dt.23-04-2014 7
17. In paragraphs 13, 15, 16, 17 of the written statement sole respondent has dealt with the averments made in paragraphs 12, 14, 15, 16 of the Election Petition and with reference to sub-rule (2) of Rule 75 of the Conduct of Election Rules, 1961 has justified the declaration of the result of the impugned election in his favour after elimination of all other candidates including the election-petitioner even though he failed to secure the quota of votes fixed for such declaration.
18. In paragraph 18 of the written statement sole respondent has dealt with the averments made in repeat paragraph 16 of the Election Petition and has stated that the statement made in the paragraph under reply is not only false but also mischievous as in the said paragraph petitioner has made malicious and serious allegation that sole respondent being the candidate of the ruling party BJP procured the assistance of the Returning Officer for furtherance of his election prospect in the impugned election. Sole respondent denied the allegation and further stated that adequate statement of material facts, as is required under the mandatory provision of Section 83 of the Act has not been stated in repeat paragraph 16 of the Election Petition and the conclusion drawn by the election petitioner that sole respondent took the assistance of Returning Officer for his success in the impugned election is wholly false and denied. It has further been stated in the same paragraph that the election-petitioner has not furnished the prescribed affidavit in Form 25 supporting the Patna High Court E.P. No.6 of 2011 dt.23-04-2014 8 allegation of corrupt practice, as is required under Section 83 of the Act read with Rule 94(A) of the Conduct of Election Rules, 1961.
19. In paragraph 19 of the written statement sole respondent has dealt with the averments made in paragraph 17 of the Election Petition and has stated that it is the established practice which is being followed since long that on the eve of every election the existing voter-list is revised in accordance with the provisions of the 1950 Act and the Registration of Electors Rules, 1960.
20. In paragraphs 20 to 25 of the written statement sole respondent has dealt with the averments made in paragraphs 18 to 26 of the Election Petition and has stated that election petitioner has only quoted the provisions of law regarding inclusion of voters in the electoral roll and according to sole respondent averments made in those paragraphs do not require any specific comment.
21. In paragraph 21 of the written statement sole respondent has further stated that the petitioner has spoken about provisions of law, which is not the subject matter of dispute in the Election Petition. Reference of mere provision of law does not require any comment bereft of allegation against the registration authority that the registration authority has not violated the law. In this connection, it has been specifically stated in paragraph 24 of the written statement with reference to Patna High Court E.P. No.6 of 2011 dt.23-04-2014 9 paragraph 25 of the Election Petition that petitioner has misinterpreted, misconstrued the provisions of Section 21 of the 1950 Act read with sub-rule (3), (4) of Rule 31 of the Registration of Electors Rules, 1960, as according to sole respondent aforesaid provision of law does not require preparation of de novo voter-list.
22. In paragraph 25 of the written statement sole respondent has stated that the instruction of the Election Commission of India (Annexure-2) has been issued in terms of the provisions of the 1950 Act as also Article 324 of the Constitution, as such, it is absolutely improper for the election petitioner to question the same.
23. In paragraphs 27, 28 of the written statement sole respondent has dealt with the contents of notice (Annexures- 3, 3/A) as also the averments made in paragraph 28 of the Election Petition and stated that invitation to file claim in Form-VI for inclusion in the draft voter-list will always include and impliedly mean that the voter is also invited to file objection in Form-VII to the name already included in the draft voter-list as per the provisions of Rule 13 of the Registration of Electors Rules, 1960. Any other inference drawn by the election petitioner, according to sole respondent, is contrary to law.
24. In paragraph 29 of the written statement sole respondent has submitted reply to the statement made in paragraph 30 of the Election Petition and stated that the statement made therein is not a bonafide statement as the election Patna High Court E.P. No.6 of 2011 dt.23-04-2014 10 petitioner himself did not file any objection regarding erroneous inclusion of any voter in the draft voter-list and the request to draw adverse inference against the official is bereft of truth and out of context.
25. In paragraph 30 of the written statement sole respondent has replied the statement made in paragraph 31 of the Election Petition and stated that the contents of paragraph 31 of the Election Petition is beyond the scope and ambit of Sections 100, 101 of the Act and contrary to the mandatory provisions of Section 30 of the 1950 Act.
26. In paragraph 32 of the written statement sole respondent has replied the averments made in paragraph 33 read with Annexure-4 series of the Election Petition and stated that the contents of paragraph 33 read with Annexure-4 series of the Election Petition are not correct rather the averments made therein is always an effort of the petitioner for preparation of grounds in support of the Election Petition as he was confident of his defeat in the impugned election.
27. In paragraphs 33, 34 of the written statement sole respondent has refuted the averments made in paragraphs 34, 35 of the Election Petition and has stated that the contents of paragraphs 34, 35 of the Election Petition are motivated and mischievous statement of the election petitioner as he himself played a vital role in enrolment of voters at more than one place, got the voters of Rohtas district enrolled twice and when such Patna High Court E.P. No.6 of 2011 dt.23-04-2014 11 mistake was detected Electoral Registration Officer took action to delete the name of the voters included in two districts and thereafter petitioner raised the grievance that the deleted voters were supporters of the petitioner, as such, according to sole respondent petitioner himself was guilty of getting the voters included in the voter-list from two places.
28. In paragraph 35 of the written statement sole respondent has considered the allegations made in paragraphs 36, 37 of the Election Petition and has stated that the statements made in paragraphs under reply are not correct, afterthought and accordingly, denied by the respondent. In this connection, sole respondent further stated that the allegations made in paragraphs under reply are not justiceable by this Court in the Election Petition.
29. In paragraph 37 of the written statement sole respondent has considered the averments made in paragraph 39 of the Election Petition and has stated that the statement is not correct and is emphatically denied. In the same paragraph sole respondent has again stated that the contents of paragraph 39 of the Election Petition are not justiceable in the Election Petition.
30. In paragraph 38 of the written statement sole respondent has considered the allegations made in paragraph 40 of the Election Petition under reply and has stated that the contents thereof are not only incorrect but motivated and afterthought.
Patna High Court E.P. No.6 of 2011 dt.23-04-2014 12
31. In paragraph 39 of the written statement sole respondent has considered the statement made in paragraphs 41, 42 of the Election Petition and has stated that the contents of those paragraphs are not only incorrect but also imaginary, hypothetical as voting was through secret ballot and the statement made in paragraph under reply are motivated and only for the sake of Election Petition. In the same paragraph, it has been further asserted that the polling agent of the election petitioner never objected at the booth that any voter coming to the booth to cast his vote his name is included in the voter-list after the cut-off- date, as such, the allegation made in the paragraph under reply is wholly afterthought as none of the polling agents of the election petitioner filed any petition before the Presiding Officer of the booth about the fact that the name of the voter has been included in the voter-list after the cut-off-date.
32. In paragraph 40 of the written statement sole respondent has considered the averments made in paragraph 43 read with Annexure-5 of the Election Petition and has stated that the contents of the paragraph under reply and Annexure-5 are incorrect and Annexure-5 is by way of steps taken by the election petitioner for the purpose of Election Petition because he was confident of his defeat in a free and fair election.
33. In paragraph 41 of the written statement sole respondent has considered the allegations made in paragraph 44 of the Election Petition and has stated that the contents of Patna High Court E.P. No.6 of 2011 dt.23-04-2014 13 paragraph 44 of the Election Petition are wholly false and emphatically denied by the sole respondent. In the same paragraph, it has been further stated that it is wholly improper, unfair and unreasonable on the part of the election petitioner to cast aspersion against the Returning Officer. It is also stated in the same paragraph that election petitioner very conveniently did not refer to sub-rule (2) of Rule 75 of the Conduct of Election Rules, 1961 which has been quoted in paragraph 13 of the written statement and with reference to the said Rule, it is stated that the statement made in the paragraph under reply is unfair and contrary to law besides it is also unfair to cast aspersion against the Returning Officer.
34. In paragraphs 42, 44 of the written statement sole respondent has stated that the statement made in paragraph 45 of the Election Petition under reply is imaginary, hypothetical and contrary to the mandatory provisions of sub-section (1) of Section 100 and 101 of the Act and the Election Petition suffers from incurable defect and is fit to be dismissed summarily without trial.
35. Together with the written statement sole respondent also filed an application under Section 86(1) of the Act again asserting non-compliance of mandatory provisions of Sections 81, 83 and 100 of the Act read with Order VI Rule 16 and Order VII Rule 11 of the Code of Civil Procedure by the petitioner praying inter alia that the Election Petition is fit to be dismissed in Patna High Court E.P. No.6 of 2011 dt.23-04-2014 14 limine under Section 86(1) of the Act for non-compliance of the provisions of Sections 81, 82, 83, 117 and Sections 100, 101 of the Act, as according to sole respondent Election Petition failed to disclose a triable issue, in view of submission already made in paragraphs 1 to 8, 15 of the written statement.
36. In paragraph 4 of the aforesaid petition sole respondent further stated that election petitioner has falsely asserted in repeat paragraph 16 of the election petition that the sole respondent procured the assistance of Returning Officer for furtherance of his election prospect in the impugned election, in the said paragraph he also utterly failed to make adequate statement of material facts and full particulars as is required under Section 83 of the Act, the election petitioner has also miserably failed to append affidavit in prescribed Form 25 as is required under Section 83 of the Act read with Rule 94 (A) of the Conduct of Election Rules, 1961 and there is no contemporaneous document to support the vague, false allegations made in repeat paragraph 16 of the Election Petition, which is fit to be deleted under Order VI Rule 16 of the Code of Civil Procedure.
37. In paragraph 5 of the aforesaid petition sole respondent has further stated that the allegation of commission of irregularities/ illegalities in preparation of electoral roll and its maintenance made in paragraphs 17 to 45 of the Election Petition are beyond the scope and ambit of Sections 81 and 100 of the Act, as such, the allegations made in paragraphs 17 to 45 of the Patna High Court E.P. No.6 of 2011 dt.23-04-2014 15 Election Petition is not triable by a Judge of the High Court in the trial of the Election Petition and as such the allegation made in paragraphs 17 to 45 of the Election Petition is fit to be struck off from the pleadings of Election Petition under Order VI Rule 16 of the Code of Civil Procedure.
38. In paragraph 6 of the aforesaid petition sole respondent has stated that the statement made in paragraph 12 of the Election Petition regarding illegal declaration of result of the sole respondent as elected candidate from 02-Gaya Graduate Constituency in the election held on 10.04.2011 is wholly incorrect, misconceived and contrary to law as Rule 75(ii) of the Conduct of Election Rules, 1961 provides that any candidate who has secured votes equal to or greater than the quota fixed or there is only one continuing candidate that candidate shall be declared elected. In the present case, after elimination of all the candidates including election petitioner from the counting it was the sole respondent who remained as a continuing candidate and even though he did not secure vote equal to or greater than the quota fixed but being the only continuing candidate was declared elected. In view of the aforesaid provision of law, according to sole respondent, the allegations set out in paragraph 12 of the Election Petition are frivolous, unnecessary and fit to be struck off from the pleadings of the Election Petition under Order VI Rule 16 of the Code of Civil Procedure.
39. In paragraph 7 of the aforesaid petition sole Patna High Court E.P. No.6 of 2011 dt.23-04-2014 16 respondent has further stated that it will not be out of place to mention that Section 81(3) of the Act provides that every Election Petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the election petitioner under his own signature to be a true copy of the Election Petition, but curiously enough the election petitioner served a copy of the Election Petition on the sole respondent under order of the High Court does not contain attestation by the election petitioner under his own signature that the copy served is true copy of the election petition, so much so, the election petitioner did not even care to put signature on the copy of the Election Petition served on the respondent. In view of the aforesaid admitted fact and circumstances, there is flagrant breach of the mandatory provisions of Section 81(3) of the Act, which requires summary dismissal of the Election Petition under sub-section (1) of Section 86 of the Act.
40. Learned counsel for the sole respondent in support of the aforesaid plea raised in the written statement as also in the petition filed for summary dismissal of the Election Petition, besides making oral submission, also filed written submission stating that the Election Petition is fit to be dismissed summarily under sub-section (1) of Section 86 of the Act for non- compliance of the mandatory provisions of sub-section (3) of Section 81 of the Act as the copy of the Election Petition, which has been served on the sole respondent, is not attested by the Patna High Court E.P. No.6 of 2011 dt.23-04-2014 17 election petitioner under his own signature as the true copy of the Election Petition. He further submitted that the Election Petition does not contain adequate statement of material facts as required under Section 83 of the Act, the election petitioner has made vague allegation that large number of persons were included as voters in the electoral roll after the last date of filing of nomination paper but the election petitioner utterly failed to furnish the name of even a single voter who was enrolled as a voter after the last date of filing nomination paper, as such, sole respondent could not verify the truth or otherwise of such vague allegation.
41. It has further been contented that Section 30 of the 1950 Act having ousted the jurisdiction of the Civil Court to try an Election Petition on the ground of illegalities/ irregularities committed in preparation, maintenance of electoral roll this Court should reject the petition in limine without trial. In this regard, reliance is placed on the Constitution Bench judgment of the Supreme Court in the case of B.M. Ramaswamy Vs. B.M. Krishnamurthy and others, AIR 1963 Supreme Court 458, paragraphs 9, 10 that the Election Tribunal while trying the Election Petition has no jurisdiction to consider the illegalities/ irregularities committed in preparation of voter-list. To buttress the same submission, further reliance is placed on the judgment of the Supreme Court in the case of Shri Shreewant Kumar Choudhary Vs. Shri Baidyanath Panjiar, AIR 1973 Supreme Court 717, paragraph 7, Hari Prasad Mulshankar Trivedi Vs. Patna High Court E.P. No.6 of 2011 dt.23-04-2014 18 V.B. Raju and others, AIR 1973 Supreme Court 2602, paragraphs 23, 24, 27, 29, 30, 31 and Shyamdeo Pd. Singh Vs. Nawal Kishore Yadav, AIR 2000 Supreme Court 3000, paragraphs 13, 22, 23, 24.
42. Learned counsel for the election petitioner has refuted the aforesaid submission made on behalf of the sole respondent and submitted that voters included in the voter-list after the last date for filing of nomination paper (in the instant case 24.03.2011) were not entitled to cast their vote in the impugned election. Casting of vote by a voter included in the voter- list after 24.03.2011 and before the date of poll i.e. 10.04.2011 has affected the result of the impugned election and on that ground alone the impugned election is fit to be set aside.
43. Learned counsel for the election petitioner further submitted that notwithstanding the provisions of Section 30 of the 1950 Act casting of vote by a voter included in the voter- list after the cut-off-date affecting the result of the impugned election has to be considered by the High Court trying the Election Petition.
44. Learned counsel for the election petitioner next submitted that from the result-sheet (Annexure-1) itself, it is evident that sole respondent has not secured equal to or greater than the quota of votes fixed, in the circumstance, ought not to have been declared elected as member of Bihar Legislative Council from 02-Gaya Graduate Constituency after the election held on Patna High Court E.P. No.6 of 2011 dt.23-04-2014 19 10.04.2011. In this connection, learned counsel for the election petitioner placed reliance on the judgment of the Supreme Court in the case of Baidyanath Panjiar Vs. Sitaram Mahto and others, (1969) 2 Supreme Court Cases 447, paragraph 3 onwards, Kunwar Nripendra Bahadur Singh Vs. Jai Ram Verma and others, (1977) 4 Supreme Court Cases 153, Narendra Madivalapa Kheni Vs. Manikrao Patil and others, AIR 1977 Supreme Court 2171 and P.T. Rajan Vs. T.P.M. Sahir and others, (2003) 8 Supreme Court Cases 498, paragraphs 15, 37 to 44.
45. Before considering the aforesaid rival submissions, it is necessary to consider the case law cited by the counsel for the parties.
46. In the case of B. M. Ramaswamy (supra) Supreme Court had the occasion to consider the election held to a Panchayat in the State of Mysore. The appellant before the Supreme Court and five others filed nomination paper for contesting the panchayat elections in terms of the provisions of Mysore Village Panchayats and Local Boards Act, 1959. The appellant and respondent no. 2 before the Supreme Court were duly declared elected. Respondent no. 1 filed Election Petition for declaration that the appellant before the Supreme Court was not duly elected as his name in the electoral roll was illegally included and respondent no. 2 was duly elected. The Election Tribunal held that on the date fixed for filing nomination paper the name of the Patna High Court E.P. No.6 of 2011 dt.23-04-2014 20 appellant was not in the authenticated list of voters and therefore he was not entitled to file his nomination paper. His election was set aside. The High Court upheld the conclusion of the Tribunal on the basis of different reasoning as it held that though the name of the appellant was included before the prescribed date in the electoral roll of the constituency under Section 23 of the Act but was so included in direct violation of Mysore Panchayats and Taluk Boards Election Rules, 1959 and therefore the inclusion of the name of the appellant in the voter-list was void. Against the order of the High Court Special Leave Petition was filed in the Supreme Court. Supreme Court in view of Section 10 of the Mysore Village Panchayats and Local Boards Act, 1959 which provides that every person whose name is in the list of voters of any panchayat constituency shall unless disqualified under the Act or under any other law for the time being in force is qualified to be elected as a member of the panchayat allowed the Special Leave Petition holding that it could not be said that there was an improper acceptance of the nomination paper of the appellant. Name of the appellant being in the list of voters, he was qualified to contest and be elected as a member of the panchayat. There was no provision in the Act which aurhorised the Tribunal to set aside the election on the ground that though the name of the appellant was in the list of voters it had been included therein illegally. The action of the Electoral Registration Officer in including the name of the appellant in the electoral roll might be illegal but the same Patna High Court E.P. No.6 of 2011 dt.23-04-2014 21 could not be questioned in a Civil Court. The mistake could be rectified only in the manner prescribed by law by preferring appeal under the Election Rules, 1959 or by resorting to any other remedy. The action of the Electoral Registration Officer including the name of the appellant in the voter list was not a nullity. The Electoral Registration Officer had admittedly jurisdiction to entertain the application for inclusion of the name of the appellant in the electoral roll and to take such action as he deemed fit. Non- compliance with the procedure prescribed under the Act and the Rules did not affect his jurisdiction that might render his action illegal.
47. In the case of Shri Shreewant Kumar Choudhary (supra) Supreme Court affirmed the judgment of the High Court upholding the election of the respondent to the Bihar Legislative Council from Darbhanga Local Authority Constituency declining to go behind the order of the Minister for Local Self Government under Section 389 of the Bihar and Orissa Municipal Act, 1922 by which he appointed 31 new Commissioners to the Jainagar Notified Area Committee and dropped six out of 15 existing Commissioners. Newly appointed 31 Commissioners were included in the electoral roll of the constituency, Supreme Court with reference to Section 30 of the 1950 Act placing reliance on the judgment of the Supreme Court in the case of B.M. Ramaswamy (supra) upheld the election result/ High Court judgment holding that no Civil Court shall have the jurisdiction to question the Patna High Court E.P. No.6 of 2011 dt.23-04-2014 22 legality of any action taken by or under the authority of the Electoral Registration Officer and that the terms of Section 30 are clear that action of the Electoral Registration Officer including the name of the voters in the electoral roll, though illegal, cannot be questioned in a Civil Court and could be rectified only in the manner prescribed by law.
48. In the case of Hari Prasad Mulshankar Trivedi (supra) the Constitution Bench of the Supreme Court was concerned with the question whether the High Court trying the Election Petition has jurisdiction to try and decide whether the respondents before the Supreme Court were ordinarily resident of the respective parliamentary constituency and fulfilled the requirement of ordinary residence, which is a condition precedent for being registered as an elector in the electoral roll published for the constituency under the 1950 Act. In that respect Supreme Court held that it saw no reason why parliament should have no competence to entrust to any authority other than a Court or a Tribunal trying an Election Petition the exclusive jurisdiction to finally adjudicate the question of inclusion/exclusion of an elector from the electoral roll. Placing reliance on the judgment of the Supreme Court in the case of Kabul Singh Vs. Kundan Singh, AIR 1970 Supreme Court 340 and provisions of Sections 14 to 24 of the 1950 Act Supreme Court held that 1950 Act provides for integrated provisions which form a complete code in the matter of preparation and maintenance of the electoral roll. Section 30 of the Patna High Court E.P. No.6 of 2011 dt.23-04-2014 23 1950 Act makes it clear that the Civil Courts have no jurisdiction to adjudicate the question of inclusion/ exclusion of elector from the electoral roll. In view of Section 30 of the 1950 Act Supreme Court held that it would not be incongruous to infer an implied ouster of the jurisdiction of the Court trying an Election Petition to go into the question of inclusion/ exclusion of elector from the electoral roll. In this regard, Supreme Court further referred to Section 100 (1)(d)(iv) of the Act, providing for result of the election to have been materially affected by non-compliance with the provisions of the Constitution or of 1950 Act or of the Rules, orders made under the 1950 Act. Mere non-compliance with the provisions of Section 19 of the 1950 Act cannot furnish a ground for declaring an election void.
49. In the case of Shyamdeo Prasad Singh (supra) Supreme Court placing reliance on the Constitution Bench judgment of the Supreme Court in the case of Hari Prasad Mulshankar Trivedi (supra) held that inclusion of person or persons in the electoral roll by authority empowered in law to prepare the electoral roll though the person included in the electoral roll is not qualified to be so enrolled cannot be a ground for setting aside the election of the returned candidate under sub- clause (iii) or (iv) of Clause (d) of sub-section (1) of Section 100 of the Act. Person enrolled in the electoral roll by an authority empowered by law to prepare an electoral roll or to include a name therein is entitled to cast his vote unless disqualified under sub- Patna High Court E.P. No.6 of 2011 dt.23-04-2014 24 sections (2) to (5) of Section 62 of the Act. A person enrolled in the electoral roll cannot be excluded from exercising his right to cast vote on the ground that he did not satisfy the eligibility requirement as laid down in Section 19 or 27(5) of the 1950 Act.
50. In the case of Baidyanath Panjiar (supra) the question raised was whether in view of the provisions of Section 23(3) of the 1950 Act the name of any person can be entered in the electoral roll subsequent to the last date for making nomination and whether that question can be gone into by the Court when trying an Election Petition. Section 23(3) of the 1950 Act provides that no amendment, transposition or deletion of any entry in the voter-list shall be made under Section 22 and that no direction for the inclusion of a name in the electoral roll of a constituency shall be given after the last date for making nomination for an election in that constituency or in the parliamentary constituency within which that constituency is comprised and before the completion of that election. The submission raised before the Supreme Court in the case of Baidyanath Panjiar (supra) was that 35 names were entered in the voter list in violation of the provisions of sub-section (3) of Section 23 of the 1950 Act and the inclusion was without jurisdiction and therefore the vote cast by those 35 electors was invalid. Supreme Court speaking through Hegde J. held that there being no power in the Registering Officer to include any elector or delete any elector in violation of sub-section (3) of Section 23 of the 1950 Act as the sub-section gave mandate to the Electoral Patna High Court E.P. No.6 of 2011 dt.23-04-2014 25 Registration Officer not to amend, transpose, delete any elector from the electoral roll of the constituency after the last date for making nomination for election in that constituency and before the completion of that election. The Court trying the Election Petition could go into the question whether there was violation of sub- section (3) of Section 23 of the 1950 Act or not.
51. In the case of Kunwar Nripendra Bahadur Singh (supra) Supreme Court considered the claim of the election petitioner-respondent, the defeated candidate that long before the notification calling the electors to elect was issued, new office bearers in place of 13 Presidents of Cooperative Societies and 4 copted members of Kshtriya Samiti were elected. The electoral roll, however, was not corrected and brought up to date, as a result of which persons who were not entitled to vote in the election, participated and voted in the election and their voting materially affected the result of the election. The High Court upholding the contention held that the electoral roll could not be deemed to be an electoral roll for the time being in force within the meaning of Section 2 (1)(e) read with Section 62 of the Act because it was not brought up to date in accordance with the mandatory provisions of Section 27 of the 1950 Act and election held on the basis of invalid or ultra vires electoral roll was void. Allowing the appeal Supreme Court held that the High Court was clearly wrong in holding that the electoral roll was illegal or ultra vires with reference to the particular entries of voters and that on that account the election Patna High Court E.P. No.6 of 2011 dt.23-04-2014 26 was not liable to be set aside. In this connection, Supreme Court referred to Section 27 of the 1950 Act which requires the Electoral Registration Officer to maintain in his office the electoral roll corrected up to date which was not done. Mere remissness of the officer in performing his duty in preparation of electoral roll by updating the roll is not relevant for the purpose of determining the question in the entire scheme of the Act and the object and purpose of preparation of electoral roll under the 1950 Act. A fair reading of the various clauses in Section 27(2) will make it clear that the entries in an electoral roll of a constituency, as they stood on the last date for making the nominations for an election in that constituency should be considered as final for the purpose of that election. In a catena of decisions Supreme Court has consistently taken the view that the finality of the electoral roll cannot be challenged in an Election Petition even if certain irregularities have 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. There is clear distinction between a challenge to the right of a voter to be registered in an electoral roll and the jurisdiction of an authority appointed under the Act to enter a name in the electoral roll.
Patna High Court E.P. No.6 of 2011 dt.23-04-2014 27
52. In the case of Narendra Madivalapa Kheni (supra) Supreme Court considered the short point whose impact may be lethal to the result of the election is as to whether Section 23 of the 1950 Act should be read down inconformity with Sections 30 and 33 of the Act. The proposition which appealed to the High Court has the approval of the Supreme Court in the case of Baidyanath Panjiar(supra) and the opinion rendered by the Court is quoted below :
"In our opinion, Clause 23 (a) takes away the power of the Electoral Registration Officer or the Chief Electoral Officer to correct the entries in the electoral rolls or to include new names in the electoral rolls of a constituency after the last date before the completion of that election..............We interdict the concerned officers from interfering with the electoral rolls under the prescribed circumstances. It puts a stop to the power conferred on them. Therefore, it is not a question of irregular exercise of power but a lack of power............We have earlier come to the conclusion that the Electoral Registration Officer had no power to include new names in the electoral roll on April 27, 1968. Therefore, votes of the electors whose names were included in the roll on that date must be held to be void votes."
There is a blanket ban in Section 23(3) on any amendment, transposition or deletion of any entry or the issuance of any direction for the inclusion of a name in the electoral roll of a constituency after the last date for making nominations for an election in that constituency.......... This prohibition is based on public policy and serves a public purpose explained Supreme Court. Any violation of such a mandatory provision conceived to Patna High Court E.P. No.6 of 2011 dt.23-04-2014 28 pre-empt scrambles to thrust into the rolls, after the appointed time, fancied voters by anxious candidates or parties spells invalidity and we have, therefore, not doubt that if in flagrant violation of Section 23(3), names have been included in the electoral roll, the bonus of such illegitimate votes shall not accrue, since the vice of voidance must attach to such names. Such void votes cannot help a candidate to win the contest. In paragraph 18 Supreme Court further pointed out that there is an underlying public policy and a paramount public purpose served by Section 23(3). In the electoral scheme as unfolded in the Act, every elector ordinarily can be a candidate. Therefore, his name must be included in the list on or before the date fixed for nomination. Otherwise he loses his valuable right to run for the elective office. It is, thus vital that the Electoral Registration Officer should bring in the names of all the electors into the electoral roll before the date and hour fixed for presenting the nomination paper. There is another equally valid reason for stressing the inclusion of the names of all electors before the hour for delivering to the Returning Officer the nomination paper. In the light of the provisions the Returning Officer on receipt of the nomination paper, satisfies himself that the candidate's name and electoral roll number are correctly entered. Necessarily, this is possible only if the electoral roll contains the names of all the electors. Likewise, Section 33(5), which deals with a candidate who is an elector from a different constituency requires of the candidate the production of a certified Patna High Court E.P. No.6 of 2011 dt.23-04-2014 29 copy of the relevant entry showing his name in such a roll. The inference is inevitable that there must be a completed electoral roll when the time for filing the nomination paper expires. The argument is, therefore, incontrovertible that the final electoral roll must be with the Returning Officer when the last minute for delivering the nomination paper ticks off. Subsequent additions to the electoral register will inject confusion and uncertainty about the constituents or electors, introduce a disability for such subsequently included electors to be candidates for the election and run counter to the basic idea running through the scheme of the Act that in the preponderant pattern of elections for the legislative assemblies and parliament, the electors shall have the concomitant right of being candidates. The cumulative effect of these various strands of reasoning and the rigour of the language of Section 23(3) of the 1950 Act leaves no doubt in the mind of the Court that inclusion of the names in the electoral roll of a constituency after the last date for making nominations for an election in that constituency must be visited with fatality. Such belated arrivals are excluded by the talons of the law, and must be ignored in the poll. In support of the aforesaid proposition the supreme Court quoted from its earlier decision in the case of Baidyanath Panjiar (supra).
53. In the case of P.T. Rajan (supra) Supreme Court has considered the following questions : (1) Whether addition or deletion of names after the last date fixed for filing of Patna High Court E.P. No.6 of 2011 dt.23-04-2014 30 nominations would invalidate the entire election? (2) Whether the election petitioner must plead and prove as to how far and to what extent such illegal addition or deletion of the names of voters has materially affected the election? The purport and object of preparation of an electoral roll cannot be underestimated in view of the fact that thereby the persons included therein are given opportunity to decide as to whether they can contest election wherefor an enlistment of a voter is necessary. Electoral roll is also helpful for the candidates to assess their chance of success. For reference to the final electoral roll, it is also required by the candidates to enable them to canvass amongst the voters. Availability of a final electoral roll with the candidate is, thus, a matter of great importance for him. There cannot further be any doubt whatsoever that the right to vote having regard to Section 62 of the Act vis-à-vis Article 326 of the Constitution of India is a valuable right. A person in terms of Section 62 of the Act is entitled to exercise his right of franchise or is disabled therefrom if his name does or does not find place in the electoral roll. Sub- section (3) of Section 23 of the 1950 Act in no uncertain terms provides for statutory injunction upon the authorities to make any revision in the electoral roll after the last date fixed which indisputably having regard to the law laid down by this Court in a number of decisions would mean 3 P.M. of the date of filing the nominations. The Registration of Electors Rules, 1960 clearly lay down the procedure for filing the claims and objections and the Patna High Court E.P. No.6 of 2011 dt.23-04-2014 31 mode and manner in which they are to be dealt with. In terms of the 1960 Rules, a claim or an objection can be entertained only at least seven days prior to the date of filing of nominations inasmuch as such claim in Form 6 is to be posted on the notice- board inviting objections before seven days, as is required in terms of Rule 26. Sub-section (3) of Section 23 of the 1950 Act ex facie is imperative in character. It has been couched in a negative language. The word "shall" has also been used. What 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 in the voter-list can be made. Section 21 of the 1950 Act speaks of preparation and revision of electoral rolls. Sub-section (1) mandates that it shall come into force immediately upon its final publication in accordance with the rules made thereunder. When such finality would be attained, however, is a question of importance. The publication of an electoral roll, having regard to sub-section (2) of Section 21 can be revised in the prescribed manner by reference to the qualifying date. The said electoral roll is also required to be revised in any year in the prescribed manner by reference to the qualifying date. The proviso appended to sub-section (2) of Section 21 states that if the electoral roll is not revised, the validity or continued operation of the said electoral roll shall not thereby be affected. Sub-section (3) of Section 21 empowers the Election Commission to direct a special revision. What is, therefore, contemplated under sub- Patna High Court E.P. No.6 of 2011 dt.23-04-2014 32 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 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. Having regard to the provisions 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 the date fixed for filing nomination would be valid. The very fact that sub-section (3) of Section 23 of the 1950 Act prohibits any amendment, transposition or deletion of any entry after the last date 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 direction 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 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 up to 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 Patna High Court E.P. No.6 of 2011 dt.23-04-2014 33 after 3 P.M. on the last date for filing nominations 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 hereinbefore, 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. An order on such application, therefore, was required to be passed in terms of Section 22 of the 1950 Act read with relevant provisions of the 1960 Rules immediately prior to 3 P.M. of the specified date for filing nominations. Once such directions are issued, evidently, publication of the list in terms of Form 16 would be only upon incorporation of directions for making amendment, transposition or deletion of names. Whenever publication of electoral roll is made in Form 16, necessary corrections have to be carried out in the mother roll. These are ministerial acts. However, in the event any amendment, transposition or deletion is made after 3 P.M. the Patna High Court E.P. No.6 of 2011 dt.23-04-2014 34 same would be invalid in law. By reason of any direction which is made after 3 P.M., neither any person whose name has been added becomes entitled to vote nor a person whose name has been deleted becomes disentitled therefrom. The right of such a person to vote or not to vote must be determined in terms of the position of the electoral roll as it stood at 3 P.M. on the date of filing of the nominations.
54. In the light of the facts stated in the Election Petition, written statement, the submissions raised on behalf of the sole respondent in the petition raising preliminary objection regarding maintainability of the Election Petition and requesting for its summary dismissal is being considered by this Court in the light of the provisions of the Act, 1950 Act as also the case law discussed above in paragraphs 46 to 53.
55. It has been averred in the election petition that the notice dated 01.10.2010 (Annexures 3, 3/1) was issued pursuant to the instructions of the Election Commission of India dated 15.09.2010 (Annexure-2) under Rule 31(3) of the Registration of Electors Rules, 1960 calling the Chief Electoral Officer, Bihar to undertake special revision of electoral rolls of the graduate constituencies of Bihar Legislative Council under Section 21(3) of the 1950 Act fixing 01.11.2010 as the qualifying date provides for only submitting claims for inclusion of name in the electoral roll for the graduate constituency concerned. The notice, however, does not provide for any form by which an objection can Patna High Court E.P. No.6 of 2011 dt.23-04-2014 35 be submitted requesting the Electoral Registration Officer to delete a particular name already included in the draft roll and with reference to the said averment, it is submitted in paragraphs 29, 30 of the Election Petition that though the claim for inclusion of name in the voter list was entertained but the objection for deletion of a name from the draft roll was returned and not entertained on the ground that notice does not call for any objection. In the Election Petition election petitioner has not given any specific instance that any request for deletion of any particular name from the draft roll was filed before the Electoral Registration Officer which was not entertained. Just a bald statement has been made in paragraph 30 of the Election Petition that objection for deletion of names from draft roll was returned. Specific request for deletion of name from the draft roll having not been preferred, referred to in the Election Petition, submission raised in paragraphs 29, 30 is not only misconceived but also not required to be considered in the present Election Petition as in the light of the judgment of the Supreme Court discussed above, it is well settled that provisions of the 1950 Act providing for preparation, maintenance and correction of the electoral roll by inclusion or deletion of names from the roll is required to be effected by the Electoral Registration Officer as also the Appellate Authority as per the provisions of the 1950 Act, which is a complete code in itself. In view of Section 30 of the 1950 Act any inclusion or omission in the draft roll until the date of nomination is within the jurisdiction Patna High Court E.P. No.6 of 2011 dt.23-04-2014 36 of the Electoral Registration Officer and the Appellate Authority. Jurisdiction of Civil Courts to entertain or adjudicate upon any question whether any person is or is not entitled to be registered as a voter in the electoral roll of the constituency having been barred under Section 30 of the 1950 Act, this Court is not inclined to examine the hypothetical question raised in the Election Petition that objection for deletion of name from the draft electoral roll of 02-Gaya Graduate Constituency was not entertained by the Electoral Registration Officer, as has been averred in paragraphs 29, 30 of the Election Petition.
56. In this connection, I may also refer to the representation dated 15.02.2011 (Annexure-4 series) of Sri Radhe Shyam Singh, representative of Rohtas District Students Union addressed to the Commissioner cum Returning Officer, 02-Gaya Graduate Constituency. Perusal of the said representation indicates that subject matter of the representation is erroneous inclusion of voter in the voter-list of the constituency. In paragraph 1 of the representation it has been stated that form for submitting objection was not published, as such, many wrong persons have been included in the voter-list yet no objection was filed. In paragraph 2 of the representation, it has been stated that after considering the request for inclusion of name in the voter-list draft voter-list was not published, as such, objection with regard to erroneously included voter could not be filed. In paragraph 3 of the representation dated 15.02.2011, it has been stated that total Patna High Court E.P. No.6 of 2011 dt.23-04-2014 37 population of village Harnathpur in Kochus block of Rohtas district is 198 but in the voter-list of village Harnathpur published in part-42, 200 graduates have been shown included as voter in that village. In paragraph 4 of the said representation, it has been averred that voter-list of Mohania block in the district of Kaimur, Bhabhua has been published in part 30, perusal whereof indicates that many of the students of Maharana Pratap B.Ed. College, Mohania residents of Uttar Pradesh have been wrongly included in the voter-list and with reference to the averments made in the representation request is made to the Returning Officer to get the matter enquired into about the erroneous inclusion of the voters in the voter-list of the constituency. It is quite evident from perusal of representation dated 15.02.2011 of Sri Radhe Shyam Singh, representative of Rohtas District Students Union that bald allegations have been made about erroneous inclusion of voters in village Harnathpur of Kochus block and the students of Maharana Pratap B.Ed. College, Mohania in the voter-list part 42, 30 of 02- Gaya Graduate Constituency. Representation dated 15.02.2011, however, does not refer to any other material by which the bald statement made in paragraphs 3, 4 of the representation could be verified. In the opinion of this Court Sri Radhe Shyam Singh by filing representation dated 15.02.2011 desired the Returning Officer to make roving enquiry into the allegations made in the aforesaid paragraphs of the representation without placing on record any material to support the allegation.
Patna High Court E.P. No.6 of 2011 dt.23-04-2014 38
57. The 2nd representation in Annexure-4 series is dated 25.10.2010 submitted by as many as 50 representationists who put their signature on the representation requesting the Returning Officer not only to extend the date for receiving the request for inclusion of name in the voter list but also to make arrangement to receive the request for inclusion at the block headquarter, as according to representation the representationists and others faced difficulty in approaching the headquarter from their village because of the distance between the village and the headquarter, on account of general strike and Bidhan Sabha Election, 2010.
58. The 3rd representation in Annexure 4 series is dated 29.10.2010 submitted by the election petitioner also requesting the Returning Officer not only to extend the date for receipt of the application for inclusion of name in the voter-list but also to make arrangement to receive the request for inclusion in the voter-list at the block headquarter because of the distance between the village of the prospective voter and the headquarter.
59. The 4th representation in Annexure-4 series is dated 14.02.2011 by Sri Sanjay Kumar Singh, Advocate. Sri Singh stated in paragraph 1 of his representation that the name of the same voter has been mentioned at different places in the voter-list. As regards voter-list of Dehri town and block Sri Singh submitted in paragraph 2 of his representation that the same contains the name of about 5000 voters which is not reliable as Dehri is a small Patna High Court E.P. No.6 of 2011 dt.23-04-2014 39 town and the name of same voter has been mentioned at different places in the voter-list. In paragraph 3 of his representation Sri Singh stated that resident of Maharaja Compound, Ara have been included as voter in Sahar block without realizing the fact that it takes about 4 hours for one to reach Sahar from Ara. In the same paragraph Sri Singh further stated that residents of Gaya, Aliganj have been included as voter in Bodh Gaya. In paragraph 4 of the representation Sri Singh stated that hundreds of graduate submitted required form and obtained receipt for being included as voter in 02-Graduate Constituency but they have not been included as voter in the voter-list of the constituency. In the same paragraph Sri Singh further stated that he shall produce evidence in support of the assertion as and when he is given opportunity to produce the same. In paragraph 6 of the said representation Sri Singh stated that from perusal of part 29 of the copy of voter-list of 02-Gaya Graduate Constituency given to the representative of the Indian National Congress Party, it would appear that name of the voter has not been mentioned from serial no. 1 to 237 of Nawanagar block in Buxar district. In the light of the error noticed in the voter-list Sri Singh also requested the Returning Officer to get the voter-list of 02-Gaya Graduate Constituency re-examined for deletion of names of those voters which has been repeated in the voter-list more than once.
60. The 5th representation in Annexure-4 series is also by Sri Sanjay Kumar Singh, Advocate and is dated Patna High Court E.P. No.6 of 2011 dt.23-04-2014 40 11.03.2011 whereunder he informed the Returning Officer that voter-list for 02-Gaya Graduate Constituency has been published on 06.01.2011, copy whereof has also been handed over to the political parties and to the prospective candidates. Sri Singh further informed the Returning Officer through the said representation that he has learnt from reliable sources that proposal has been received to include 463 voters in the voter-list of Kargaho block part 43, Chenari block part 45, Sasaram block part 46, Nokha block part 47 Ninara block part 48, Dehri block part 57, which is erroneous and contrary to Rule. In the last paragraph of the said representation Sri Singh requested the Returning Officer to reject the proposal and not to add any name in the voter-list already published.
61. Contents of the aforesaid representations, Annexure-4 series being vague, not specific and not supported by any documentary evidence, the Returning Officer could not have examined the bald allegations set out in the representation as even receipt for inclusion of the name as a voter in the voter-list referred to in paragraph 4 of representation dated 14.02.2011 was also not annexed with the representation. The averment to the contrary made in paragraphs 34, 35 of the Election Petition appears to be vague, not worth examination during trial of the petition.
62. Now, I examine the correctness of the averments made in paragraphs 36 to 43 of the Election Petition that voter-list of 02-Gaya Graduate Constituency was published Patna High Court E.P. No.6 of 2011 dt.23-04-2014 41 showing 82600 voters instead of 82020 voters but on the date of poll petitioner was shocked to learn that the voter-list was further amended after the last date for filing of nomination paper i.e. 23.03.2011 by including 7747 voters and the total voters in the voter-list on the date of poll became 87747. In support of the aforesaid illegality committed during election, petitioner has not mentioned in the Election Petition or in the representation dated 10.04.2011 (Annexure-5) even a single name of the voter who was included in the voter-list after its publication on 06.01.2011 and the last date for filing of nomination paper on 23.03.2011 but before the date of poll i.e. 10.04.2011. Election petitioner has made bald statement that voters were included in the voter-list after its publication. Inclusion of voters in the voter-list has to be by means of publication. In Court election petitioner has neither produced the voter-list published on 06.01.2011, copy whereof was handed over to the representative of the political parties and the prospective candidate, as has been asserted by Sri Sanjay Kumar Singh, Advocate in representation dated 11.03.2011 (Annexure-4 series) nor has he produced copy of the voter-list which he saw on the date of poll whereunder another 7747 voters were included in the voter-list after the last date for filing of nomination paper. True it is that inclusion of the voters in the voter-list after the last date for filing nomination paper is an illegality, which may vitiate result of the impugned election, but such illegality has to be asserted by means of cogent material. In Patna High Court E.P. No.6 of 2011 dt.23-04-2014 42 the instant case, mere bald statement has been made without even indicating the name and the address of the voters included in the voter-list after the date of publication and filing of nomination paper. Bald statement simpliciter without production of any document to support the assertion may not persuade this Court to proceed further with the Election Petition.
63. The other question which will further arise in the matter is that petitioner himself filed representation dated 10.04.2011 on the date of poll itself addressed to the Returning Officer, copy whereof is contained in Annexure-5 to this petition. Perusal of Annexure-5, however, indicates that election petitioner has not asserted in Annexure-5 that 7747 voters have been added in the voter-list after its publication on 06.01.2011 and last date fixed for filing of the nomination paper on 23.03.2011. In the said representation dated 10.04.2011 petitioner has stated that in the originally published voter-list for Dehri block 5208 voters were included against which petitioner filed representation whereafter the voter-list was again published on 24.03.2011 in which voters at booth no. 57, 57(ka) and 57 (kha) were reduced to 1178, 985 and 1123, total voters in Dehri block being 3286 but on the date of poll in Dehri block illegal polling is being conducted on the basis of earlier voter-list in which 5208 voters were shown and not on the basis of the newly published voter-list including 3286 voters. In the representation he requested the Returning Officer for ensuring polling in Dehri block on the basis of newly published voter-list. Patna High Court E.P. No.6 of 2011 dt.23-04-2014 43 The case, which the election petitioner has projected in the Election Petition that 7747 voters were included in the voter-list after publication of the voter-list as also after the last date for filing nomination paper was never raised by the petitioner in any of the representations filed before the Returning Officer or the Presiding Officer of the different booths and the new case which is being projected in the election petition for the first time without such case being raised before the officers conducting the election in any of the contemporaneous document cannot be tried in the present Election Petition as no details with reference to the name of 7747 voters has been indicated either in the petition or in any of the contemporaneous documents. In any case, the corrected voter-list dated 24.03.2011 reducing the number of voters in Dehri Block from 5208 to 3286 could not have been used for the purpose of polling on 10.04.2011 as the voter-list dated 24.03.2011 reducing the number of voters was published one day after the last date fixed for filing of nomination paper i.e. 23.03.2011 violating the prohibition contained in sub-section (3) of Section 23 of the 1950 Act not to correct any entry in the voter-list by way of amendment, transposition or deletion. These observations of mine are also fortified by the Supreme Court in the different cases relied upon by the election petitioner and discussed in paragraphs 50 to 53 above.
64. For the reasons aforesaid, the Election Petition is dismissed without trial.
Rajesh/- (V.N. Sinha, J) |__| U