Karnataka High Court
Mr. J. Robert vs Mr. Ram Jethmalani on 8 June, 1990
Equivalent citations: ILR1990KAR1907
ORDER Rama Jois, J.
1. In this Writ Petition the three petitioners have prayed for setting aside the order passed by the Chief Electoral Officer, Karnataka, dismissing their appeal presented under Section 24 of the Representation of the People Act, 1950, read with Rule 27 of the Registration of Electors Rules 1960, against the order of the Electoral Registration Officer, No. 84, Shantinagar Assembly Constituency, Bangalore, including the name of the first respondent in the voters' list of that constituency and have also sought for the issue of a Writ of Quo Warranto determining the right of the first respondent to continue as a Member of Rajya Sabha from the State of Karnataka.
2. The facts of the case, in brief, are these: In the first week of March 1988, the Election Commission of India announced the holding of elections to fill four seats to the Rajya Sabha from the State of Karnataka. The last date for nomination fixed was 15-3-1988. The election was scheduled to be held on 28-3-1988. As provided in Section 3 of the Representation of People Act 1951, a person is not eligible to be chosen as a representative of any State in the Council of States, namely, Rajya Sabha, unless he is an elector for a parliamentary constituency in that State. According to Section 13-D of the 1950 Act, the electoral roll of all the assembly constituencies included in a parliamentary constituency constitutes the electoral roll for the parliamentary constituency concerned. The first respondent being desirous of contesting in the election to the Council of State from this State, as he was not a voter in any of the parliamentary constituency, in this State made an application before the Electoral Registration Officer, No. 84, Shantinagar Assembly Constituency, Bangalore, under Section 23 of the Representation of People Act, 1950 ('the Act' for short), read with Rule 26 of the Registration of Electors Rules 1960 ('the Rules' for short), and his name was included in the voters' list on 15-3-1988, by the order of the Registration Officer. On the same day, he filed his nomination to fill a seat in the Rajya Sabha from Karnataka and in the election held on 28-3-1988 he was declared elected. There is no dispute that but for the inclusion of his name in the electoral roll of the assembly constituency in the State the first respondent was not eligible to be a candidate in the election to a seat in the Rajya Sabha from this State in view of Section 3 of the Representation of the People Act, 1951.
2A. The Writ Petitioners who are Voters in the Shantinagar Assembly Constituency, being aggrieved by the inclusion of the name of the first respondent in the electoral roll on the basis of which the acquired eligibility to contest in the election to Rajya Sabha from this State, filed an appeal before the Chief Electoral Officer under Section 24 of the Act read with Rule 27 of the Rules. The appeal was rejected by the Chief Electoral Officer on 30-3-1988 on the ground that the certified copy of the order of the Electoral Registration Officer containing the decision to include the name of the first respondent in the electoral roll, was not produced along with the Memorandum of appeal. Aggrieved by the said order, the petitioners preferred Writ Petition No. 7666 of 1988 to this Court. In the said Writ Petition, inter alia, the allegation made was that in fact the certified copy of the order of the Electoral Registration Officer had been produced along with the appeal and it was so stated in the appeal Memorandum itself and it was received by the Officer authorised to receive true same after scrutinising that the appeal was in order. The petitioners also alleged that before rejecting the appeal on the said ground, no opportunity was given to the appellants. After the said Writ Petition was heard for some time, the learned Counsel for the first respondent (fourth respondent in the said Writ Petition) submitted that he was agreeable for the remanding of the appeal to the Appellate Authority and for the disposal of the same on merits. The learned Counsel who appeared for the Appellate Authority also submitted that appropriate orders might be made by this Court in the light of the submission made by the learned Counsel for the first respondent. Accordingly, the Writ Petition was allowed. The relevant portion of the direction given in the said Writ Petition reads:
"(i) The Writ Petition is allowed.
(ii) The order passed by the second respondent dated 30-3-1988 (Annexure-B) is set aside;
(iii) The second respondent is directed to dispose of the appeal presented by the petitioners on merits, within four months from the date on which a copy of this order is furnished to the learned Counsel for the State."
Thereaftar, the appeal was taken up for hearing by the Chief Electoral Officer and it was dismissed by order dated 5-1-1989.
3. In the appeal the appellant urged the following grounds:
(i) The first respondent made an application for inclusion of his name in the electoral roll of 84, Shantinagar Assembly Constituency on or about 13th or 14th March 1988, and the Electoral Registration Officer without complying with the requirements of Rule 26 of the Rules directed the inclusion of the name of the first respondent in the electoral roll in the constituency and the inclusion was therefore clearly illegal.
(ii) Though the application was liable to be rejected in limine, as non-judicial stamp of 10 paise was not affixed to the application, nor the said fee was remitted to the treasury and the challan was enclosed to the application as prescribed, the Electoral Registration Officer entertained the application illegally and directed the inclusion of the name of the first respondent in the voters' list and therefore the inclusion was liable to be set aside as having been in contravention of Rule 26 of the Rules.
(iii) The first respondent who was a permanent resident of Bombay and a voter in Colaba Constituency, had never lived in Bangalore City or in any part of Karnataka, and that No. 12, Brunton Road, Bangalore, given as the residence of the first respondent was a guest house owned by Indian Express group of companies and therefore he being not ordinarily resident of this State, his name could not have been included in the electoral roll.
4. The Counsel for the first respondent who appeared before the Chief Electoral Officer contended that the appeal was not maintainable. His contention was, under Section 24 of the Act read with Rule 27 of the Rules, an appeal was maintainable only against an order rejecting an application for inclusion and not against an order including the name of an applicant in the electoral roll. In support of this submission, the learned Counsel relied on the Judgment of the Gujarath High Court in the case of S.J. JHALA v. CHIEF ELECTORAL OFFICER, in which the Gujarath High Court had taken the view that an appeal was not maintainable against inclusion. He also contended that the first respondent had become an ordinary resident of Bangalore and that he had made the application on 8-3-1988 itself and not on any subsequent date as alleged by the petitioners. There was, however, no controversy that the prescribed fee was not paid on the application for inclusion, either by affixing stamp or by depositing the amount in the Government Treasury and enclosing the challan.
5. The Appellate Authority, relying upon the Judgment of the Gujarath High Court in the case of S.J. Jhala accepted the contention of the first respondent that the appeal was not maintainable. However, it also considered the appeal on merits and rejected all the grounds urged by the petitioners.
(i) As regards the date of making the application, the Appellate Authority rejecting the contention held thus:
"The first respondent had made his application under Section 23 of the Representation of People Act 1950 for inclusion of his name in the 84, Shantinagar Assembly Constituency on 8-3-1983. There is nothing on record to show that it was not presented on that date or that it was presented on 13th or 14th as alleged in the appeal."
(ii) As regards the contention that the procedure prescribed under Rule 26 of the Rules had not been followed, the Appellate Authority held that the procedure had been followed.
(iii) As regards the contention that as the prescribed fee was not paid on the application the application was liable to be rejected, the Appellate Authority rejected the said contention. The relevant portion of the order reads:
"As required by Section 25 of the Representation of People Act 1930 in Rule 26 of the Registration of Electors Rules 1960 a fee of ten paise has been prescribed, in respect of an application made under Section 23 of the said Act for inclusion of name in the electoral roll, which is to be paid along with the application. As contended by the applicants, this fee was not paid by the first respondent along with his application. However, this is not a mandatory provision but only a directory prevision, as the lay regulating inclusion of names in the electoral roll, on applications made under Section 23 does not provide for the consequence of nullification on failure to comply with the requirement of payment of fee of 10 paise, prescribed in Rule 26. Non-compliance of this provision will not therefore, invalidate the action of the second respondent in including the name of the first respondent in the electoral roll of 84, Shantinagar Assembly Constituency."
(iv) As regards the contention chat the first respondent was not an ordinary resident of Bangalore, the said contention was rejected by the Appellate Authority. The relevant portion of the order reads:
"In his application dated 8-3-1988, addressed to the Electoral Registration Officer, 84, Shantinagar Assembly Constituency, the first respondent had mentioned the place ordinary residence as No. 12, Brunton Road, Bangalore. His claim was supported by another elector in that constituency as required by law. After making a spot enquiry, as per the directions of the second respondent, the Revenue Inspector of the Corporation of the City of Bangalore reported that the first respondent had been staying at No. 12, Brunton Road, as mentioned in his application. The Rules indicate that the Electoral Registration Officer has to satisfy himself that the applicant is ordinarily resident in the constituency and he had done so in this case. The first respondent had also made a request in his application that his name may be deleted from the electoral roll of Kolaba Assembly Constituency of Bombay where he was formerly a voter. In the circumstances, the first respondent has to be regarded as ordinarily resident at No. 12, Brunton Road, Bangalore, which falls within the limits of 84, Shantinagar Assembly Constituency."
Thus, apart from holding that the appeal itself was not maintainable, the Chief Electoral Officer rejected all the grounds.
6. The learned Counsel for the petitioners, urged the following contentions:
(i) The view taken by the Appellate Authority that the appeal presented by the Writ Petitioners was not maintainable, is erroneous.
(ii) The view taken by the Appellate Authority that the fee prescribed for the application under Section 23 for the inclusion of the name in the electoral roll under Section 25 of the Act was not mandatory and therefore inclusion made entertaining an application though no prescribed fee was paid was not illegal, was erroneous.
(iii) The Appellate Authority ought to have held that inclusion of the name of the first respondent in the electoral roll pursuant to an application, which did not conform to the requirements of Section 24 of the Act and Rule 26 of the Rules was nonest.
(iv) The inclusion of the name of the first respondent in the electoral roll was nonest in law and therefore a Writ of Quo Warrahto should be issued and the right of the first respondent to continue as a Member of the Rajya Sabha should be terminated.
(v) The finding recorded by the Appellate Authority that the application of the first respondent was made on 8-3-1988 itself and that he was an ordinary resident of Bangalore was perverse.
(vi) The finding recorded by the Appellate Authority that the procedure prescribed under Rule 26 of the Rules had been followed, was also erroneous.
7. The learned Counsel for the first respondent, at the cutset, submitted that when the Electoral Registration Officer being the Competent Authority had directed the inclusion of the name of the first respondent in the electoral roll and accordingly it was included, even on the assumption that Rule 26 of the Rules regarding affixing of stamp on the application or remitting the application fee into the treasury and enclosing the challan to the application was not complied with, the inclusion does not become nonest. He further submitted that as held by the Gujarath High Court in the case of Jhala the appeal of the petitioners was not maintainable and that decision was followed by the Appellate Authority In holding that the appeal of the appellant was liable to be dismissed in limine. In support of his contention that even if an application on which the fee prescribed under Rule 26 was not paid, could not have been entertained, once the application was entertained and the name of the first respondent was directed to be included, the inclusion does not become nonest and in support of this contention the learned Counsel relied on the Judgment of the Supreme Court in the case of B.M. RAMASWAMY v. B.M. KRISHNAMURTHY, . The said case arose under the provisions of the Mysore Village Panchayats Act. By the provisions of that Act the relevant part of the electoral roll of the concerned Assembly Constituency prepared under the Act and the Rules was adopted as the electoral roll for the election of the Panchayat concerned. The appellant was a candidate at an election to a Panchayat and he was declared elected. In an Election Petition filed under the provisions of the Panchayat Act by the respondent in the appeal, his election was set aside by the election Court and in appeal this High Court held that though the name of the appellant had in fact been included in the electoral roll before he filed his nomination, the inclusion was made in violation of Rule 26 of the Rules and therefore the inclusion was to be ignored and on that basis his election was set aside. The matter was taken in appeal before the Supreme Court. In the said appeal, whereas the contention of the appellant therein was that the inclusion of his name was not nonest and therefore could not be a ground for setting aside his election in an election petition, the contention of the respondent was that the entry of a name in the electoral roll in violation of Rule 26 of the Rule was nonest and therefore the setting aside of his election on that ground by this Court was correct. The Supreme Court accepted the contention of the appellant therein and reversed the Judgment of this Court. The relevant portion of the Judgment reads:
"9. It is not disputed that an application was filed before the Registration Officer for the inclusion of the appellant's name in the electoral roll; it is also common case that the electoral Registration Officer did not follow the procedure prescribed in Rule 25 relating to the posting of the application in a conspicuous place and inviting objections to such application. It cannot therefore, be denied that the inclusion of the name of the appellant in the electoral roll was clearly illegal. Under Section 30 of the Representation of the People Act 1950, no civil Court shall have jurisdiction to question the legality of any action taken by or under the authority of, the electoral Registration Officer. The terms of the Section are clear and the action of the Electoral Registration Officer including the name of the appellant in the electoral roll, though illegal, cannot be questioned in a civil Court; but it could be rectified only in the manner prescribed by law, i.e., by preferring an appeal under Rule 24 (SIC-27?) of the Rules, or by resorting to any other appropriate remedy. But it was contended before the High Court that the action of Electoral Registration Officer was a nullity in as much as he made the order without giving notice as required by the Rules. We find it difficult to say that the action of the Electoral Registration Officer is a nullity, He has admittedly jurisdiction to entertain the application for inclusion of the appellant's name in the electoral roll and take such action as he deems fit. The non-compliance with the procedure prescribed does not affect his jurisdiction, though it may render his action illegal. Such non-compliance cannot make the Officer's act nonest though his order may be liable to be set aside in appeal or by resorting to any other appropriate remedy."
8. The above decision fully supports the contention of the learned Counsel for the respondent that the inclusion of the name of the first respondent; even if there was violation of Rule 26 in the process, does not become nonest. In the above decision the Supreme Court has clearly distinguished between an order made by an authority having jurisdiction to include the name of a person in the electoral roll in violation of law and an order made to the same effect without jurisdiction. It is only in the latter case the inclusion becomes non-est, and it has to be ignored or disregarded. A clear illustration of this is available from the Judgment of the Supreme Court in NARENDRA v. MANIK RAO, . In that case the Supreme Court held that after the last date and time fixed for an election to a Legislature till the election is over the Registration Officer has no jurisdiction to include any name in the electoral roll in view of the bar created by Section 23(3) of the Act and if done it has to be disregarded. Such an inclusion is therefore nonest. Hence the contention of the learned Counsel for the petitioner that the inclusion of the name of the first respondent in the electoral roll was non-est has to be rejected. However, the decision in Ramaswamy on which the learned Counsel for the first respondent relied, furnishes answers to the other two questions arising for consideration in this case, which is favourable to the petitioners. They are:-
(1) An appeal under Rule 27 of the Rules read with Section 24 of the Act is maintainable against inclusion of a name in the electoral roll.
(2) Though the inclusion of a name in the electoral roll in violation of Rule 26 does not become nonest, it would be illegal and liable to be set aside in appeal.
In view of the aforesaid decision of the Supreme Court, the contention urged for the first respondent that the Appellate Authority was right in holding that the appeal of the petitioners was not maintainable before it against the inclusion of the name of the first respondent, has to be rejected and the contention of the learned Counsel for the petitioners that the appeal was maintainable has to be accepted.
9. Though in view of the decision of the Supreme Court in Ramaswamy's case it is unnecessary for us to consider the arguments of the learned Counsel regarding the maintainability of an appeal against inclusion, as the learned Counsel argued at great length, making reference to the provisions of the Act and the Rules, we consider it appropriate to deal with them.
10. The learned Counsel for the petitioners submitted that Section 24 of the Act expressly provides that an appeal lies to the Chief Electoral Officer from any order of Electoral Registration Officer under Section 22 or Section 23 of the Act. Having regard to the clear wording of the Section, it is impossible to interpret the Section as restricting the appeal only against rejection of an application made under Section 22 or 23 of the Act and not against the granting of application under Section 22 or Section 23. He submitted that the view taken by the Gujarath High Court was erroenous. Further, he pointed out that in the very Judgment the Gujarath High Court had also held that an appeal could be entertained even against Inclusion with the leave of the Appellate Authority and in the present case when the matter had come up in Writ Petition No. 7666 of 1988 the Appellate Authority had agreed to dispose of the appeal on merits and a direction to that effect was also issued by this Court and therefore it was not open for the Appellate Authority to hold that the appeal was not maintainable.
11. The learned Counsel for the first respondent, however, submitted that the view taken by the Gujarath High Court in the case of Jhala to the effect that an appeal under Section 24 of the Act was not maintainable against inclusion, was correct. He, however, does not dispute that in the very decision it was also held that an appeal could be filed under Section 24 of the Act to the appropriate authority even against inclusion, with the leave of the Appellate Authority. He also submitted that the direction issued by this Court in the earlier Writ Petition was to dispose of the appeal on merits and the merits included the question of maintainability of the appeal on any ground other than the one on which the appeal was rejected by an earlier order and which was set aside by this Court in the order made in W.P.No. 7666 of 1988.
12. We shall now proceed to make a brief survey of the relevant provisions of the Act and the Rules made under Section 28 of the Act. An analysis of the relevant provisions of the Act and the Rules would disclose that a clear-out distinction is made between:
(i) The procedure for preparation of the final electoral roll and its publication, and
(ii) the correction of entries in the final electoral roll and inclusion of names in the final electoral roll.
(i) AS regards the procedure for preparation of electoral roll, Section 21 of the Act provides that the electoral roll for each constituency shall be prepared in the prescribed manner with reference to the qualifying dates and shall come into force immediately upon its final Notification in accordance with the Rules made under the Act. Section 21(1) reads thus:
"21. PREPARATION AND REVISION OF ELECTORAL ROLLS - (1) The electoral roll for each constituency shall be prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the Rules made under this Act."
Section 28 of the Act confers power on the Central Government to frame Rules. Section 28(2)(a) empowers the making of the Rules regarding the determination of 'ordinary residence' under Sub-section (7) of Section 20 of the Act which is a condition of eligibility for inclusion of name of any person in the electoral roll of any assembly constituency. Section 28(2)(aa) empowers the Central Government to make Rules regarding the particulars to be entered in the electoral roll. Clauses (b) to (g) of Section 28(2) empowers the Central Government to prescribe by Rules regarding the various steps to be taken in the preparation of the electoral roll and the final publication of the electoral rolls. Section 28(2)(h) of the Act empowers the Central Government to frame the Rules for the revision and correction of electoral rolls and the inclusion of names.
(ii) As regards the procedure for making correction of entries in the final electoral roll and deletion provision is made in Section 22 of the Act and for inclusion of names in the final electoral roll, provision is made in Section 23 of the Act. An appeal is provided against any order made under Section 22 or Section 23, under Section 24. Section 25 provides that the prescribed fee shall be paid on any application made under Section 22 or Section 23 or an appeal preferred under Section 24.
(iii) The Central Government has framed Rules under Section 28 of the Act called the Registration of Electors Rules, 1960, Rule 4 prescribes the form and language of the roll. Rule 5 prescribes that the roll shall be prepared in parts. Rule 6 provides that the names of the electors shall be included in the electoral roll as per the house numbers. Rule 7 requires that a person should give a declaration about his ordinary residence. Rule 8 requires furnishing of information about the occupants of dwelling houses. Rule 10 prescribes that a draft electoral roll shad be published and make it available for public inspection. Rule 11 requires giving further publicity to the draft rolls published. Rule 12 provides that every claim for inclusion in the electoral roll that is from persons whose names have not been included in the draft electoral roll published, should be lodged within 30 days from the data of publication of the draft roll and the proviso to that Rule empowers the Election Commission to extend the time for lodging such claims. Rule 13 provides that every claim shall be in Form No. 6 and every objection to the inclusion of the name shall be in Form 7. Rule 14 prescribes the manner of lodging claims and objections and Rule 16 prescribes the procedure to be followed in the preparation of the electoral roll, namely, disposal of every claim and objection. Rule 17 provides for rejection of claims and objections which are not filed within the prescribed period or in the prescribed manner. Rule 13 authorises the Registration Officer to pass orders accepting the claims and objections. Rule 19 provides for notice of hearing regarding claims and objections. Rule 20 authorises to inquire into the claims and objections and decide the same. Rule 21 empowers the Registration Officer to include the names inadvertently omitted and Rule 21A authorises the Registration Officer to delete the names included inadvertently or for any other good reason. Rule 22 provides for final publication of the roll. Rule 23 provides an appeal against the decision of the Registration Officer under Rules 20, 21 or 21A of the Rules. Rules 22(1) and (2) and Rule 23 reads:-
"22. FINAL PUBLICATION OF ROLL: (1) The Registration Officer shall thereafter -
(a) prepare a list of amendments to carry out his decisions under Rules 18, 20, 21 and 21A and to correct any clerical or printing errors or other inaccuracies subsequently discovered in the roll;
(b) publish the roll, together with the list of amendments, by making a complete copy thereof available for inspection and displaying a notice in Form 16 at his office; and
(c) subject to such general or special directions as may be given by the Election Commission supply, free of cost, two copies of the roll, as finally published, with the list of amendments, if any, to every political party for which a symbol has been exclusively reserved by the Election Commission.
(2) On such publication, the roll together with the list of amendments shall be the electoral roll of the constituency.
XXX XXX XXX
23. APPEALS FROM ORDERS DECIDING CLAIMS AND OBJECTIONS - (1) An appeal shall lie from any decision of the Registration Officer under Rule 20, Rule 21 or Rule 21A to such Officer of Government as the Election Commission may designate in this behalf (hereinafter referred to as the Appellate Officer):
Provided that an appeal shall not lie where the person desiring to appeal has not availed himself of his right to be heard by, or to make representations to, the Registration Officer on the matter which is the subject of appeal.
(2) Every appeal under Sub-rule (1) shall be -
(a) in the form of a Memorandum signed by the appellant, and
(b) presented to the Appellate Officer within a period of fifteen days from the date of announcement of the decision or sent to that Officer by registered post so as to reach him within that period.
(3) The presentation of an appeal under this Rule shall not have the effect of staying or postponing any action to be taken by the Registration Officer under Rule 22.
(4) Every decision of the Appellate Officer shall be final, but in so far it reverses or modifies a decision of the Registration Officer, shall take effect only from the date of the decision in appeal.
(5) The Registration Officer shall cause such amendments to be made in the roll as may be necessary to give effect to the decisions of the Appellate Officer under this Rule."
Thus it may be seen that Rules 4 to 22 are the Rules prescribed regarding the various steps to be taken and to be followed in the preparation of the final electoral roll in terms of Section 21 of the Act.
(iv) As regards the correction or delation or for inclusion of names in the final electoral roll is concerned, the Legislature itself has made special provisions in respect of these matters. Section 22 provides for making of an application for correction of entries in the final electoral roll. Section 23 makes a provision for making of an application for the inclusion of the name of a person in the electoral roll whose name does not find a place in the electoral roll. Sub-section (3) of Section 23 places an embargo on making correction or inclusion in the voters' list after the last date of making nomination for an election and before the completion of the election. The appeal contemplated under Section 24 is against an order under Sections 22 and 23 of the Act. Section 24 of the Act reads:
"24. APPEALS:- An appeal shall lie within such time and in such manner as may be prescribed -
(a) to the Chief Electoral Officer, from any order of the electoral Registration Officer under Section 22 or Section 23."
The above Section expressly provides that an appeal shall lie within such time and in such manner as may be prescribed to the Chief Electoral Officer from any order of the Electoral Registration Officer made under Section 22 or 23. Both under Sections 22 and 23 of the Act, an order of the Electoral Registration Officer could be either granting the application or rejecting the application. When the Section provides that an appeal lies against any order of the Electoral Registration Officer under Section 23, an interpretation which curtails the right of appeal and restricts it only to rejection of an application for inclusion is impermissible. The procedure for correcting or deleting the entries in the final electoral roll as also the procedure for inclusion of names in the electoral roll and the procedure for filing an appeal against the order of the Electoral Registration Officer under Section 24 are all regulated by Rules 26 and 27 of the Rules. Sub-rule (3) of Rule 26 expressly provides that the Registration Officer shall immediately on receipt of an application for inclusion of name in the final electoral roll direct that one copy thereof be posted in some conspicuous place in his office together with a notice inviting objections to such application within seven days from the date of posting. Sub-rule (4) of Rule 26 provides that the Registration Officer is required to consider the application and objections only after the expiry of the period specified in Sub-rule (3). It is true that the Rule makes it obligatory to record reasons only when an application is rejected. But all the same, it is clear that the Registration Officer is bound to give seven days clear notice for filing objections to an application and if objections are filed by anyone, Sub-rule (4) requires the Registration Officer to decide the objections. Rule 27 prescribes the procedure for filing an appeal under Section 24. If the construction of Section 24 as suggestted for the learned counsel for the first respondent were to be accepted, even if a name is included in plain contravention of the provisions of Rule 26(3) of the Rules, no appeal would be maintainable. Neither the text nor the context of the provision gives any basis for giving such a narrow interpretation. In fact as Section 30 of the Act bars the jurisdiction of the Civil Court, the only remedy against a wrong inclusion is by way of presenting an appeal under Section 24 of the Act. The Supreme Court, in the case of Ramaswamy has clearly held that the course open against an inclusion of name in violation of Rule 26 is to get it set aside in an appeal filed under Rule 27 read with Section 24 of the Act. This decision of the Supreme Court had not been brought to the notice of the Gujarat High Court in Jhala's case.
13. For these reasons, we hold that any person having sufficient interest in the matter is entitled to prefer an appeal against an order made by the Registration Officer under Section 23 directing the inclusion of the name of any person in the electoral roll, under Section 24 of the Act. In the present case, it is admitted that the petitioners are electors in the Shantinagar Assembly constituency and therefore they had the right to file an appeal under Section 24 of the Act. The view taken to the contrary by the Appellate Authority is erroneous.
14. Further, there can be no doubt, that as any illegality in the preparation of electoral rolls or inclusion of names in the electoral rolls prepared under the Act cannot be a subject matter of challenge in an election petition, any order of the Registration Officer or of the Chief Electoral Officer in appeal, could be a subject matter of challenge in a petition under Article 226, in view of the decision of this Court in L. Shivanna v. State of Karnataka, .
15. The learned counsel for the first respondent argued that the appropriate course for the petitioners was to file an application under Section 22, for the deletion of the name of the first respondent from the electoral roll and not to prefer an appeal under Section 24 of the Act. In our opinion, Section 22 provides for making an application for correction or deletion of name in the electoral roll published in terms of Section 21 of the Act and Rule 22 of the Rules. If the name of the first respondent had been included in the electoral roll so published, then the only course open to the petitioners; if they were aggrieved by such inclusion; was only to file an application under Section 22 of the Act. That is not a remedy against the order of the Registration Officer made under Section 23 of the Act read with Rule 26 of the Rules. The remedy provided against an order made under Section 23 of the Act including the name of a person in the electoral roll is an appeal to a higher authority under Section 24 of the Act. In fact, if instead of filing an appeal an application were to be filed under Section 22 to the Registration Officer himself, he could reject it on the ground that his order under Section 23 had become final, the same not having been appealed against under Section 24 of the Act. Therefore, we find no substance in the argument of the learned Counsel for the first respondent that the petitioners should have resorted to the making of an application under Section 22 of the Act to the Electoral Registration Officer himself.
16. Now coming to the merits of the case, the learned Counsel for the petitioners contended that the first respondent was not ordinarily resident of Bangalore and he was only residing in a guest house of Indian Express group of papers and a person residing in a Guest House could not be regarded as a permanent resident of the City. On this aspect of the matter, there has been a report of the revenue official stating that on local enquiry he learnt that the first respondent was residing at the said premises and the appellate authority has chosen to rely upon the said report and has recorded a finding of fact and therefore it is not open for us to interfere with the said finding In a petition under Article 226 of the Constitution.
17. The next contention urged by the petitioners was that the inclusion of the name of the first respondent in the electoral roll was illegal and therefore it was liable to be set aside in appeal. As seen earlier the ratio of the decision in the case of Ramaswamy is that if the inclusion of name is made in violation of Rule 26, it is liable to be set aside in appeal presented under Section 24 read with Rule 27 of the Rules. Therefore, the question for consideration in this petition is, whether there was any such violation of Rule 26 in including the name of the first respondent. In the electoral roll, as would constitute the basis for setting aside the inclusion?
18. The contention urged by the learned Counsel for the petitioners was that the application was actually made some time on 13th or 14th March 1988 and in total disregard of the provisions of Rule 26, the Electoral Registration Officer accepted the application of the 1st respondent and directed the inclusion of his name in the voters' list. He submitted that the finding recorded by the Chief Electoral Officer that there was no evidence for the application not having been made on 8-3-1988, was perverse, for what the authority should have tried to find out was as to whether there was any evidence for having made the application on 8-3-1988. The learned Counsel in support of his submission that the finding was perverse, submitted the following circumstances:
(1) In the records produced, the note-sheet put up by the office of the Electoral Registration Officer referring to the application of the first respondent shows that the note was made for the first time on 15-3-1938.
(2) The report of the Revenue Officer found in the records in which he stated that he went to the premises in Brunton Road, particulars of which was given in the application and ascertained that the first respondent was residing there, is dated 14-3-1988.
(3) No other document or register evidencing the receipt of the application of the first respondent on 8-3-1988 was produced before the appellate authority or before this court.
(4) The prescribed fee was not paid either in the form of non-judicial stamp or by depositing the amount in the treasury and producing the challan, which would have disclosed the date earlier to which the application could not have been made; and therefore non-payment of prescribed fee was also a circumstance going against the first respondent on the point.
19. As regards this, the learned counsel for the first respondent and the learned counsel for the Chief Electoral Officer submitted that in the records the order made by the Electoral Registration Officer on the application of the first respondent that the same be published on the notice board inviting objections within seven days was available and this was sufficient evidence in support of the first respondent having made an application on 8-3-1988. As pointed out by the learned Counsel for the petitioners, it is true that there is no note-sheet put up on 8-3-1988 making a note as to the receipt of the application of the first respondent and seeking the order of the Electoral Registration Officer for taking further steps. The first note put up found in the records is only 15-3-1988. The learned Counsel for the first respondent relied on the Certificate issued by the Indian Airlines dated 8-7-1988 produced by him which certifies that the first respondent travelled from Delhi to Bangalore on 8-3-1988 by Flight No. IC 403 to show that the first respondent was in Bangalore on 8-3-1988 to make the application. Whatever the controversy may be, on other facts the finding of the Chief Electoral Officer is based upon the order made by the Electoral Registration Officer on the application of the first respondent which bears the date 8-3-1988, by which he directed the publication of the application on the notice board. As the finding of the Chief Electoral Officer is based on the said evidence, it is not open for us to interfere with the said finding of fact under Article 226 of the Constitution.
20. One other contention urged by the learned Counsel for the petitioners while addressing arguments in reply was that there was violation of Sub-rule (3) of Rule 26 of the Rules also in granting the application of the first respondent for inclusion of his name in the voters' list. Elaborating this submission the learned Counsel stated thus:
Sub-rule (3) of Rule 26 expressly provides that the Registration Officer shall immediately on receipt of such application direct that one copy be posted in some conspicuous place In his office together with a notice inviting objections to such application within a period of seven days from the date of such posting and Sub-rule (4) of Rule 26 empowers the Registration Officer to consider the application and the objections only after the expiry of the period specified in Sub-rule (3). In the present case, admitting that the application of the first respondent was made on 8-3-1983, the application was granted on 15-3-1988. It could have been taken up for consideration only on 16-3-1988, for, Section 9(1) of the General Clauses Act which has a bearing on the method of computing time prescribed, reads:
"9. COMMENCEMENT AND TERMINATION OF TIME: (1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word 'from' and, for the purpose of including the last in a series of days or any other period of time, to use the word 'to'."
and the above provision is made applicable for the interpretation of the rules by Sub-rule (2) of Rule 2 of the Rules, which reads:
"(2) The General Clauses Act, 1897 (10 of 1897), shall apply for the interpretation of these rules as it applies for the interpretation of an Act of Parliament."
As Rule 26(3) provides that objections should be invited within seven days from the date of such posting, for the purpose of computing seven days time from the date of publication of the application, even taking 8-3-1988 as the date on which the application was made and published, as the date of application and/or publication has to be excluded in view of Section 9 of the General Clauses Act, the application could have been taken up for consideration only on 16-3-1988 or thereafter, and therefore the inclusion of the name of the 1st respondent on 15-3-1988 was in violation of Rule 26(3) and (4) of the Rules. Learned Counsel pointed out that if the application of the 1st respondent for inclusion of his name in the electoral roll was taken up for orders on 16-3-1988, he would not have been eligible to file nomination, as 15-3-1988 itself was the last date and in order to help him the Registration Officer went out of the way and ordered the inclusion of his name on 15-3-1988 itself.
21. As far as the point that giving of seven days time for filing objections is mandatory and it should be complied with and therefore its non-compliance would render the inclusion illegal, is concerned, the decision of the Supreme Court in Ramaswamy's case supports the contention of the learned Counsel. The question, however, is whether in this case Rule 26(3) regarding giving seven days time had been violated. But it should be pointed out that though this contention is a pure question of law based on admitted facts, it was not raised before the appellate authority. It has not been raised in the Writ Petition. It was not raised at the time of main arguments. No application was filed seeking permission to urge this as an additional ground. As the learned counsel tried to make out this point only at the fag end of his reply, the (earned Counsel for the first respondent submitted that we should decline to go into this question and pronounce upon it. As the first respondent had no notice of this point at any time earlier, we decline to deal with this contention.
22. The learned Counsel for the petitioners streneoulsy contended that the application of the first respondent was liable to be rejected as the prescribed fee was not paid on the application as required under Section 25 of the Act and Rule 26 of the Rules. There is no dispute on facts on which the contention is based. Respondents 2 to 4 in the statement of objection, at paragraph, 13 have stated thus:
"13. It is no doubt true that as per Rule 26 of the Registration of Electors Rules 1960, an application under Section 23 of the Act for inclusion of name in the electoral roll should be accompanied by a fee of 10 paise. It is also true that the application was not accompanied by the prescribed fee of 10 paise."
Elaborating his contention, the learned Counsel submitted as follows: Section 25 of the Act prescribes that on every application or an appeal under Sections 22, 23 or 24, as the case may be, the prescribed fee shall be paid. Rule 26 of the Rules prescribes that a fee of 10 paise should be paid in the form of non-judicial stamp or an amount of 10 paise should be remitted to the Government Treasury and a challan evidencing such remittance should be enclosed. The condition of payment of fee prescribed on the application by means of stamp or by remitting the amount to a Government Treasury and enclosing the challan was of great importance having regard to the fact that the application was for inclusion of a name in the final electoral roll published after following all the prescribed procedure. The view taken by the Chief Electoral Officer that the payment of prescribed fee was not mandatory, was erroneous.
23. The learned Counsel for the first respondent, however, submitted that the payment of fee on the application cannot be regarded as mandatory and that the view taken by the Chief Electoral Officer that in the absence of the prescription of any consequence for non-complying with the said condition laid down in the Rules, the said requirement should be considered as directory and its non-compliance did not render the inclusion void and was not liable to be set aside.
24. There are innumerable decisions in which the criteria to find out as to whether a given provision is directory or mandatory have been laid down. The Supreme Court in the case of KHUB CHAND v. STATE OF RAJASTHAN, while considering as to whether the second part of Section 4 of the Rajasthan Land Acquisition Act, which required the publication of the preliminary notification proposing to acquire lands, at public places, was mandatory or not, the Supreme Court stated thus:
"6......Section 4 in clear terms says that the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The provision is mandatory in terms. Doubtless, under certain circumstances, the expression "shall" is construed as "may". The term "shall" in its ordinary significance is mandatory and the Court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations."
The Supreme Court in the case of LACHMINARAIN v. UNION OF INDIA, while holding that the provision of Section 6(2) of the Bengal Finance (Sales Tax) Act, 1941 which required the giving of not less than three months notice of its intention to add or to omit from or otherwise amend the second schedule was mandatory observed as follows:
"66....The primary key to the problem whether a statutory provision is mandatory or directory, is the intention of the law-maker as expressed in the law, itself. The reason behind the provision may be a further aid to the ascertainment of that intention. If the legislative intent is expressed clearly and strongly in imperative words, such as the use of 'must' instead of 'shall', that will itself be sufficient to hold the provision to be mandatory, and it will not be necessary to pursue the enquiry further. If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory."
From the above principles it is clear that if a provision is in the negative form, it is rarely directory, that is, such a provision is always mandatory. The Supreme Court has also considered the question as to whether the mere circumstance that consequence of obedience of a provision is not provided for, would be sufficient to hold that a provision was directory and not mandatory in BHIKRAJ v. UNION OF INDIA, and answered the question in the negative. Relevant portion of the Judgment reads:-
"17....Section 175(3) plainly requires that contracts on behalf of the Government of India shall be executed in the form prescribed thereby; the Section, however does not set out the consequence of non-compliance. Where a statute requires, that a thing shall be done in the prescribed manner or form but does not set out the consequences of non-compliance, the question whether the provision was mandatory or directory has to be adjudged in the light of the intention of the Legislature as disclosed by the object, purpose and scope of the statute."
The same view has been reiterated by the Supreme Court in KARNAL LEATHER KARMACHARI SANGHATAN v. LIBERTY FOOTWEAR CO., AIR 1990 SC 244. The relevant portion of the Judgment reads:
"24. Maxwell tells us:
That it is impossible to lay down any general Rule for determining whether a provision is imperative or directory. Maxwell on the Interpretation of Statutes 12th Ed. page 314).
25. Craies, however, gives us some guidelines:
When a statute is passed for the purpose of enabling something to be done, and prescribes the formalities which are to attend its performance those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute; but those which are not essential, and may be disregarded without invalidating the thing to be done, are called directory." (Craies on Statute Law 8th Ed. Page 63).
26. It is well established that the wordings of any provision are not determinative as to whether it is, absolute or directory. Even the absence of penal provision for non-compliance does not lead to an inference that it is only directory. The Court, therefore, must carefully get into the underlying idea and ascertain the purpose to be achieved notwithstanding the text of the provision."
These decisions clearly establish that the circumstance that consequence of non-compliance with the condition prescribed under a statutory provision is not provided for, by itself would not be sufficient to hold that a provision is directory.
25. As seen earlier the Supreme Court held in the case of Ramaswamy that an inclusion of name made in violation of Rule 26(3) of the Rules i.e., without giving opportunity to file objections for a period of seven days the inclusion would be illegal and liable to be set aside in appeal. If the contention of the learned Counsel for the first respondent that, because there is no provision indicating the consequence of non compliance with Rule 26, the said Rule should be regarded as directory and its non-compliance does not constitute a ground for setting aside the inclusion were to be correct then it would mean even if an application for inclusion is allowed without complying with Rule 26(3) which requires the giving of seven days time to file objections the inclusion cannot be set aside. Therefore, the reasoning advanced by the learned Counsel for the 1st respondent is untenable, in view of the ratio in Ramaswamy's case.
26. From the ratio of the decision of the Supreme Court, referred to above, in coming to the conclusion as to whether a statutory provision is mandatory or not the language of the provision concerned and other relevant provisions of the statute and the object and the purpose with which a particular condition is imposed and the importance of its compliance, have all to be taken into account.
27. In the present case, as pointed out earlier, a clear distinction has been made by the Legislature itself as between the preparation and publication of final electoral roll and the corrections and inclusions in the final electoral roll. As far as procedure for preparation of final electoral roll is concerned, Section 21 of the Act provides it shall be prepared and published in the manner prescribed by the Rules. Section 28 of the Act empowers the Central Government to frame the Rules regulating the preparation of electoral roll. Thus the Legislature has allowed the entire procedure of preparing final electoral roll, to be regulated by Rules. As can be seen from the Rules prescribed for inclusion of names in the draft electoral roll or for correction, neither the Act nor the Rules prescribe any fee. Even for appeals under Rule 23 against rejection of an application for correction of names or inclusion of names prior to the preparation of final electoral roll, no fee is prescribed. But when it comes to the question of making corrections and inclusion in the final electoral roll, the Legislature has considered the same as a matter of importance and has made the special provision in the Act itself vide Sections 22, 23, 24 and 25. By Section 22 of the Act, the Legislature has made provision for making an application for correction in or deletion from the final electoral roll. Section 23 of the Act has made provision for making an application for inclusion in the electoral roll and for taking a decision on the said application. Section 24 of the Act itself provides for an appeal against any order passed by the Electoral Registration Officer to the Chief Electoral Officer and then comes Section 25. It reads:
"25. Fee for applications and appeals:-Every application under Section 22 or Section 23 and every appeal under Section 24 shall be accompanied by the prescribed fee which shall, in no case, be refunded."
It expressly provides that every application under Section 22 or 23 and every appeal under Section 24 shall be accompanied with the prescribed fee which shall in no case be refunded.
28. Rule 26 of the Rules which prescribes the procedure for making applications under Sections 22 and 23, reads:
"26. CORRECTION OF ENTRIES AND INCLUSION OF NAMES OF ELECTORAL ROLLS:- (1) Every application under Section 22 or Sub-section (1) of Section 23 shall be made in duplicate in such one of the Forms 6, 8, 8A and 8B as may be appropriate and shall, be accompanied by a fee of ten paise.
Provided that the statements in Forms 2, 2A and 3, from persons having service qualifications, received after the final publication of the electoral roll shall be deemed to be the applications under Sections 22 and 23 and that no fee shall be deemed to have been prescribed for Such applications under Section 25.
(1A) Every such application as is referred to in Sub-rule (1) shall be presented to the Registration Officer in such manner as the Election Commission may direct.
(1B) Every application for inclusion presented in pursuance of Sub-rule (1A) shall be countersigned, where necessary, by another person whose name is already included in the roll in which the claimant desires his name to be included.
(2) The fee specified in Sub-rule (1) shall be -
(a) paid by means of non-judicial stamps; or
(b) deposited in a Government treasury or the Reserve Bank of India in favour of the Registration Officer concerned; or
(c) paid in such other manner as may be directed by the Election Commission.
(2A) Where the fee is deposited under clause (b) of Sub-rule (2), the applicant shall enclose with the application a Government treasury receipt in proof of the fee having bean deposited.
(3) The Registration Officer shall, immediately on receipt of such application, direct that one copy thereof be posted in some conspicuous place in his office together with a notice inviting objections to such application within a period of seven days from the date of such posting.
(4) The Registration Officer shall, as soon as may be after the expiry of the period specified in Sub-rule (3), consider the application and objections thereto, if any, received by him and shall, if satisfied, direct the inclusion, deletion, correction or transposition of entries in the roll, as may necessary; provided that when an application is rejected by the Registration Officer he shall record in writing a brief statement of his reasons for such rejection."
It may be seen that Sub-rule (1) provides that every application for Inclusion of name in the electoral roll shall be in Form 6, and shall be accompanied by a fee of ten paise (It was formerly fifty paise). It does not leave it at that. Sub-rule (2) prescribes the alternative modes of payment, namely, when the fee is not paid in the form of non-judicial stamp, the amount of fee should be deposited in a Government treasury and challan for having deposited the amount in the treasury should be enclosed or it should be paid in any other manner as prescribed by the Election Commission. The learned Counsel submitted that the provision of Section 25 as also Rule 26, which prescribes alternative mode of payment, loaves no room for doubt that the requirement to pay the fees is mandatory and therefore as the application of the respondent in Form 6 was not accompanied by the fee, it could not have been entertained and acted upon by the Registration Officer. He submitted that the fee prescribed under Rule 26 for an application for inclusion was 50 paise earlier and it was reduced to 10 paise by Notification dated 29-12-1970, but it was not the value of the quantum of fee that was of importance, but it was the value of payment of prescribed fee in any one of the prescribed manner, which was of utmost importance. The learned Counsel submitted that Section 25 and Rule 26 were not at all meant, to collect revenue, but were intended not only to ensure regularity and authenticity to an application made for inclusion but was also a safeguard against manipulation. He submitted that as in view of Section 23(3) of the Act no inclusion of names can be made on and after the last date and time fixed for filing nomination till the date of election and that as according to Rule 26(3), on an application for inclusion of a name in the electoral roll not less than one week's time has to be given for filing objection by putting up a copy of the application on the notice board, if in a given case a person who is desirous of contesting in an election to the Legislature finds that his name was not in any of the electoral rolls, which gives him eligibility to contest and by that time, there are less than seven days left for the last date of nomination, the possibility of manipulating an antedated application so as to make out that one week time had been given for filing objection, with the connivance of the Officers concerned cannot be excluded if an application without affixing the stamp or payment into treasury of the prescribed fee is not insisted upon. He submitted that if condition of payment of prescribed fee in the prescribed manner is mandatory then it would be difficult to indulge in such manipulation. For this reason as also for the reason that once the name is included, the Election Tribunal has no jurisdiction to go into its validity, the learned Counsel for the petitioner submitted that the requirement to pay fee on the application for inclusion in the electoral roll, should be interpreted as mandatory. Further, he pointed out that Sub-rule (3) of Rule 26 provides that the Registration Officer shall immediately on receipt of such application direct that one copy thereof be posted in some conspicious place in the office of the Registration Officer together with a notice inviting objections to such application within a period of seven days from the date of such posting and that "such application" means an application made in conformity with Rule 26 of the Rules, and therefore unless the application was made in Form No. 6 and on it the prescribed fee is paid, the application cannot be regarded as a valid application at all and therefore the Electoral Registration Officer had to reject an application not made in conformity with Rule 26 of the Rules in limine or to return the application to the party concerned leaving liberty for him to refile it after complying with the provision of Rule 26 of the Rules.
29. The learned Counsel for the first respondent in support of his submission that the objection that an application under Section 23 was not stamped could not be raised in appeal, relied on the decision of the Supreme Court in H.S. LIMITED v. DILIP CONSTRUCTION, AIR 1969 SC 1238 in which it was laid down that a document which was initially not duly stamped but in respect of which a certificate was secured stating that duty and penalty was paid, cannot be regarded as invalid on account of initial defect of non-payment of requisite stamp duty on the ground that the object of the Stamp Act was only collection of revenue. He also relied on the decision of the Supreme Court in JAVER CHAND v. PUKHRAJ SURANA, in which the principle laid down is that once a document was admitted in evidence in the Court below and was used by both the parties, the order admitting the document in evidence cannot be reviewed on the ground it was insufficiently stamped, in view of Section 36 of the Stamp Act 1899, as also the decision of the Privy Council in BELLAMY v. SAUL AND ORS., 1963(32) Law Journal: QB 366. in which it was held that once a document is registered though insufficiently stamped, it cannot be regarded void in the absence of an express provision to that effect. In our opinion, the ratio of the three decisions arising under the Stamp Act are not apposite for deciding the point arising in this case for, it is difficult to say that the fee prescribed on an application under Rule 26, which is only ten paise, is only intended to collect revenue for the State and not for imparting authenticity to the application and regularity to the proceedings and also a safeguard against manipulation, as contended by the learned Counsel for the petitioners.
30. As can be seen from Section 25 of the Act, it states that prescribed fee shall be paid on every application made under Section 23 of the Act Rule 26 also says that every application shall be accompanied by the fee prescribed therein. It also prescribed the mode of payment. Therefore, there can be no doubt that if the provision is mandatory as contended for the petitioner, the application of the first respondent for inclusion of his name in the electoral roll was liable to be rejected by the Registration Officer, but as the application was entertained and allowed, his appeal should have been allowed and the inclusion of the name of the first respondent in the electoral roll was liable to be set aside.
31. Even if the Rule is directory, as contended for the first respondent, it does not confer any discretion on the Registration Officer to entertain an application without the prescribed fee, for, a directory provision is also required to be complied with. In this behalf, the observations of the Supreme Court in the case of DRIGRAJ KUER v. A.K. NARAIAN SINGH, are apposite. It reads:
"22....A provision giving a discretionary power leaves the donee of the power free to use or not to use it at his discretion. A directory provision however gives no discretionary power to do or not to do the thing directed. A directory provision is intended to be obeyed but a failure to obey it does not render a thing duly done in disobedience of it, a nullity."
In view of the above principle, there can be no doubt that even on the basis that Section 25 and Rule 25 which prescribes the fee are only directory, the Registration Officer had no discretion to entertain an application under Section 23 and Rule 26 which was not accompanied by the prescribed fee and that he should and could reject an application under Section 23 of the Act presen ted without paying the fee or to return it with the objection. In the present case, he failed to do so. He entertained the application made without paying the prescribed fee and passed an order allowing the application.
32. The point, however, raised by the learned Counsel for the first respondent is that as the Rule was only directory, even if there was non-compliance, the Appellate Authority could not set aside the inclusion on the ground of non-compliance of a Rule which is directory. The learned Counsel for the petitioner, however, contended that the Section 25 and Rule 26 regarding payment of fee were mandatory and therefore the appeal of the petitioner should have been allowed as admittedly the prescribed fee had not been paid.
33. Even on the basis that the interpretation placed by the petitioners on Section 25 and Rule 26 which prescribe the payment of fee on the application is mandatory and therefore his contention that he was entitled to an order allowing the appeal at the hands of the Appellate Authority, is well founded, still the question for consideration is as to whether the petitioners are entitled to the relief sought for in the Writ Petition. On the fact's and circumstances of this case, in our opinion, the petitioners are not entitled to the relief sought for. Firstly, the prayer for issuing a direction sought for directing the Chief Electoral Officer and/or the Electoral Registration Officer to delete the name of the respondent from the electoral roll is concerned, the relief cannot be granted to the petitioners because it would be futile to do so. It is well settled principle of the exercise of Writ jurisdiction that no Writ will be issued under Article 226, which is futile (See: S.L. KAPOOR v. JAGMOHAN), . Secondly, it is also well settled position in law that an election to either of the House of Parliament or to either House of the Legislature can be set aside only by means of an election petition presented in accordance with law enacted by the Parliament and the jurisdiction under Article 226 of the Constitution to interfere with the election to the Legislatures stands curtailed by the provisions of Article 329 of the Constitution. The purpose of filing this Writ Petition by the petitioners is not only to get the names of the 1st respondent deleted from the voters' list but also to secure further a Writ of quo warranto against him and thereby to determine the right of the 1st respondent to continue as a Member of Rajya Sabha. In our view once an election of a person to a Legislature is declared by the Returning Officer under Section 53 or Section 66 and is published by the Election Commission under Section 71 or Section 73, that is the authority under which the person holds that office and it is not open to this Court to issue a Writ of quo warranto to such a person and order that his right to continue as a Member of the Legislature be ended, as that would clearly amount to exceeding the jurisdiction of this Court under Article 226, in view of Article 329. Though the learned Counsel for the petitioners took considerable pains to impress upon us that in a case like this if we come to the conclusion that the name of the 1st respondent was included in contravention of the relevant provisions of the Act and the Rules and therefore it should be excluded and that but for such inclusion the 1st respondent would not have been eligible for contesting as a candidate to the Rajya Sabha from this State as on the date he did, a Writ of quo warranto can issue, we are not impressed by the argument. In our opinion, the bar created by Article 329 is full and total. An election of a person to any of the Houses of the Legislature can be set aside only by means of election petition and this Court has no jurisdiction to issue a Writ of Quo Warranto, which has the effect of setting aside an election.
34. The learned Counsel submitted that if we were to take such a view it would go against the principle of "ubi jus ibi remedium". In support of this submission, he relied on the Judgment of the Supreme Court in MOHINDER S1NGH GILL v. CHIEF ELECTION COMMISSIONER, . Relevant portion of the Judgment reads:-
"93. We conclude stating that the bar of Article 329(b) is as wide as the door of Section 100 read with Section 98. The Writ Petition is dismissible but every relief (given factual proof) now prayed for in the pending election petition, is within reach. On this view of the law ubi jus ibi remedium is vindicated, election injustice is avoided and the constituency is allowed to speak effectively. In the light of and conditioned by the law we have laid down, we dismiss the appeal."
Relying on the above observations, he submitted if the name of a person was included illegally in the electoral roll, i.e., in plain violation of the provisions of the Act and the Rules and on that basis he filed nomination at an election to a Legislature and was elected, the position would be, that as the election Court has no jurisdiction to go into the validity of the inclusion of names of persons in the electoral roll, there would be no remedy at all.
35. In our opinion, the submission of the learned Counsel overlooks the correct position in law. It is a well settled principle, that if a Court has got jurisdiction to decide a case but not an issue involved in the said case, the course open to the party concerned is to have the said case pending and to have the issue settled by the Court which has the competence to decide that issue and produce the said order before the Court which has the power to decide a case but not the said issue. Once such an order of a Competent Authority deciding the issue is produced before the Court which has the power to decide the case, the latter has to take the decision of the Competent Authority on the issue concerned into account and to proceed to decide the case in the light of the said decision. This question even in relation to a challenge to an election to a Legislature is not res integra. Such a question has been answered by the Supreme Court in the case of BHAGWATI PRASAD v. RAJEEV GANDHI, . In that case the question raised was as to whether an elected candidate had lost the citizenship and therefore not entitled to be elected as a Member of the Legislature. The Supreme Court ruled that in an election petition the High Court as an election Court had no jurisdiction to go into the said question as the jurisdiction to decide whether a person is a citizen or had ceased to be a citizen, fell within the exclusive jurisdiction of the authority under the Citizenship Act. The Supreme Court added that if a declaration is secured from the authority under the Citizenship Act to the effect that an elected candidate was not a citizen on the date when he filed nomination and therefore ineligible for contesting the election, such a decision by such Competent Authority could be produced before the Election Court and the Election Court in deciding the election petition has to take that decision into account. The relevant portion of the Judgment reads:-
"11....The policy behind Section 9(2) appears to be that the right of citizenship of the person who is admittedly an Indian citizen should not be exposed to attack in all forums in the Country, but should be decided by one authority in accordance with the prescribed Rules and that every other Court or authority would have to act only on the basis of the decision of the prescribed authority in that behalf and on no other basis. That being the mandate of the law, even the High Court trying an election petition can declare an Indian citizen as having acquired the citizenship of a foreign State only on the basis of a declaration made by the Central Government. If such a declaration made by the Central Government is produced before a High Court trying an election petition the High Court has to give effect to it. If such a declaration is not forthcoming, the High Court should proceed on the ground that the candidate concerned has not ceased to be an Indian citizen. It cannot independently hold an enquiry into that question on its own."
(Underlined by us) Therefore, the only course open to a person, if he is desirous of challenging election of a person whose name was illegally included in the electoral roll, is to secure an order from the Competent Authority under the Act that the inclusion was illegal and to produce it along with the election petition or to file an election petition if he is entitled to do so or to get an election petition filed against the election through a person eligible to file an election petition and during the pendency of the election petition secure an order from the competent Court that the inclusion of the name of the person was without authority of law and therefore ft should be excluded and to produce the said order before the Election Court. If such order is produced, in view of the ratio of the Judgment of the Supreme Court in the aforesaid case, the Election Court has to take that into account In deciding the election petition.
36. In the present case, what has happened is that an election petition had been filed against the election of the first respondent and the only ground raised in the election petition was that the inclusion of the name of the first respondent in the electoral roll was illegal. This Court trying an election petition considered the said issue and dismissed the election petition holding that in an election petition this Court had no jurisdiction to go into the question of the legality of the inclusion of the name of the first respondent in the electoral roll. The election petition was dismissed on 31-1-1989 and the Judgment is C. KANNAN v. RETURNING OFFICER, The learned Counsel also brought to our notice that no appeal has been filed against the said decision and as a result the said order has become final. Therefore, in our opinion, the challenge to the legality of the inclusion of the name of the first respondent in the electoral roll of Shantinagar assembly constituency has become futile.
37. In the result, we make the following order:
(i) The Writ Petition is dismissed;
(ii) No costs.