Madras High Court
S.Nagavalli vs The Election Officer And Commissioner on 22 August, 2011
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22-08-2011 CORAM: THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN CRP (NPD) No.3859 of 2009 and M.P.No.1 of 2011 S.Nagavalli .. Petitioner Vs. 1.The Election Officer and Commissioner, Panchayat Union, Vedaraniyam. 2.The Government of Tamil Nadu, Represented by the District Collector, Nagapattinam. 3.The State Chief Election Officer, Chennai. 4.T.Vijayalakshmi .. Respondents ----- Revision under Article 227 of the Constitution of India, against the order passed in Election Original Petition No.81 of 2006 dated 7.8.2009 on the file of the District Court, Nagapattinam. ----- For Petitioner : Mr.S.Jayakumar For Respondents-1 to 3 : Mr.M.L.Mahendran Govt. Advocate For Respondent-4 : Mr.Srinath Sridevan ----- O R D E R
This civil revision petition arises out of the dismissal of an Election Petition filed by the petitioner, challenging the election of the fourth respondent herein to the post of President of Kuravapulam Panchayat Union in Nagapattinam District.
2. I have heard Mr.S.Jayakumar, learned counsel for the petitioner, Mr.M.L.Mahendran, learned Government Advocate for respondents 1 to 3 and Mr.Srinath Sridevan, learned counsel for the fourth respondent.
3. In the elections held on 15.10.2006 to the post of President of Kuravapulam Panchayat Union, the petitioner as well as the fourth respondent herein contested. The petitioner secured 1,041 votes and the fourth respondent secured 1,238 votes. Consequently, the fourth respondent was declared elected.
4. The election of the fourth respondent was challenged by the petitioner in Election O.P.No.81 of 2006 on the file of the Principal District Court, Nagapattinam under Section 258 of the Tamil Nadu Panchayats Act, 1994, on the short ground that the fourth respondent was born in Malaysia, educated in Malaysia and was settled in Malaysia and that therefore, she was not entitled to contest the elections. But the fourth respondent took a positive stand that she is an Indian citizen, that she studied in India, that she got married to an Indian citizen and that she is also continuously residing in India, having a Family Card and also having her name included in the voters list.
5. The petitioner examined herself as PW1. She examined (i) her Agent as PW3, (ii) a resident of the village as PW2 and (iii) the Secretary of Vedaranyam Rural Development Bank, as PW4. PW2 stated that he is a native of Kuravapulam. He claimed to have known the parents of the fourth respondent. He deposed that the fourth respondent and her 4 siblings were born in Malaysia. PW4 did not throw any light on the citizenship of the fourth respondent. PW3 testified to the effect that he lodged objections to the nomination filed by the fourth respondent.
6. Apart from the oral evidence of herself and that of PW2, the petitioner filed about 16 documents to prove that the fourth respondent was a citizen of Malaysia. The documents by which the petitioner sought to prove her allegation against the 4th respondent are as follows:-
(i) The copy of the application filed by her Agent (PW3) to the Deputy Regional Passport Officer under the Right to Information Act, was filed as Ex.P3. By this application, the petitioner's agent sought information both as to whether the fourth respondent was a Malaysian citizen and about the details of her passport. But unfortunately, the fee required to be paid while seeking the information, was paid by PW3 in the form of a demand draft drawn in favour of the Deputy Regional Transport Officer instead of the Regional Passport Officer. Therefore, under Ex.P6, dated 19.10.2006, the Passport Office returned the demand draft and also advised PW3 to approach the Malaysian High Commission for information. But PW3 did not pursue the matter thereafter with the Passport Office.
(ii) The letter dated 2.9.2006 written by PW3 to the Election Commission, was filed as Ex.P7. By this letter PW3 informed the Election Commission that the fourth respondent was born in Malaysia and had acquired citizenship there.
(iii) The non-availability Certificate issued under Section 17 of the Registration of Births and Deaths Act, 1969 to the effect that the birth of the fourth respondent was not registered, in the records of the village for the years 1955 to 1965 was filed as Exx.P15 and P16.
7. Thus, in effect, all that the petitioner could produce before the Election Tribunal were (i) the copy of a defective application to the Passport Office, which did not produce any result (ii) the affidavits of PWs 2 & 3 and (iii) the Non-availability Certificate issued under the Registration of Births and Deaths Act. These documents and the oral evidence of PWs 2 & 3 were certainly not sufficient to establish that the fourth respondent was not a citizen of India.
8. In contrast to the evidence adduced by the petitioner, the fourth respondent examined herself as PW2. The Commissioner of Panchayat Union, was examined as PW1. The fourth respondent produced copies of the Voters Lists of the year 1979, 1982, 1995, 2001, 1998 and 2006 as Exx.R1 to R6. She also filed the Family cards for the periods 1990-1995, 1998-2003 & 2005-2009 as Exx.R7 to R9. The Identity Card issued by the Election Commission, was filed as Ex.R10, the marriage invitation was filed as Ex.R11 and the Passport was filed as Ex.R12. In the light of the evidence so adduced, especially in the form of voters lists, Family Card, Identity Card issued by the Election Commission and the Passport, the Election Tribunal came to the conclusion that the petitioner could not prove that the fourth respondent was not a citizen of India. Consequently, the Election Tribunal dismissed the petition filed by the petitioner. Aggrieved by the said order, the petitioner is before this Court.
9. As rightly contended by Mr.Srinath Sridevan, learned counsel for the fourth respondent, an election inquiry is in the nature of a quasi criminal trial and the election petitioner is virtually in the position of a prosecutor and it is an elementary rule of law that the prosecution should make out its case by positive proof and not by mere conjecture [M.A.Muthiah Chettiar v. Sa.Ganesan (AIR 1960 Mad. 85)]. Therefore, the petitioner was obliged to establish by positive proof that the fourth respondent was not qualified to contest the election. The fact that the petitioner failed to lead adequate evidence before the Election Tribunal, is very clear on the face of the record. Therefore, as held in Poosariar Ekambaram Pillai v. Visalakshi [1990 (2) MLJ 90], I cannot, in normal circumstances take a different view in a revision arising under Article 227.
10. But, it must be borne in mind that allegations of corrupt practices stand on a different footing than allegations relating to qualification/ disqualification of a candidate to contest the election. Both cannot be placed on equal pedestal. As held in Sri Mazibur Rahman v. Sri Khonehedur Rahman Khan [1986 (1) Gau.L.R. 209], both pleadings as well as proof relating to corrupt practices, have to be made with exactitude and precision. But, the same amount of rigidity cannot be expected of an allegation of lack of qualification or disqualification of a candidate. In respect of allegations of corrupt practices, an election petitioner normally pleads positive acts of commission by the elected candidate and hence, his pleadings are expected to be precise. The burden of proof is also heavy on him, since he is called upon to prove the positive. But, when an allegation of lack of qualification on the part of the elected candidate is made by an election petitioner, he is expected to prove the negative. Therefore, the proof adduced by the election petitioner in such cases, may not be razor sharp. The reason is that the possession of the essential qualifications for contesting an election, is within the exclusive knowledge of the candidate and the proof with regard to the same is also normally in his exclusive possession. In an election petition alleging lack of qualification on the part of a winning candidate, the election petitioner is already at a disadvantage, in the sense that he is called upon to prove the negative. Therefore, if the same standard of proof is expected even in such cases, as the one on hand, every election petition may have to be thrown out at the threshold. This cannot be the purport of the law. Therefore, when the election petitioner produces additional documents, which neither appear to be fabricated by him, nor were unavailable with him at the time of trial in the election petition, the same cannot be simply brushed aside without any kind of enquiry.
11. It is for this reason that the petitioner has now come up with an application in M.P.No.1 of 2011 under Order 41, Rule 27 CPC, to file certain additional documents. The additional documents sought to be filed are as follows:-
(i) Certified xerox copy of the Birth Certificate of the fourth respondent dated 18.3.1956.
(ii) Certified xerox copy of the Primary School Leaving Certificate of the fourth respondent dated 7.12.1968.
(iii) Certified xerox copy of the Identity Card of the fourth respondent issued by Malaysian Government dated 8.4.1997.
(iv) Certified xerox copy of letter of appointment of the fourth respondent dated 28.8.1998.
(v) Certified xerox copy of the statutory declaration of the fourth respondent as permanent resident of Malaysia dated 2.7.2001.
(vi) Certified copy of the Extract from the Register of Identity Cards issued to the fourth respondent dated 2.5.2003.
(vii) Certified copy of the bona fide Certificate dated 26.7.2010.
(viii) Certified copy of the Certificate of Identity issued by the Registration Department at Kualalumpur dated 8.9.2010.
12. The fourth respondent has filed a counter to the application for receiving additional evidence, denying the truth and veracity of some of the documents, admitting a few and feigning ignorance of the genuineness of the others. Therefore, in the light of the rival contentions, I shall first deal with the documents now sought to be filed as additional evidence.
13. The first additional document is a Birth Certificate issued by the Registrar-General of Births and Deaths, Malaysia. It shows that a child named as Vejailetchumy was born on 18.3.1956 at 9.35 A.M., in the General Hospital, Klang. The names of the parents of the child are indicated as Somu and Loganayaki. The name of the child and the names of the parents of the child found in the said Birth Certificate exactly tally with the personal particulars of the fourth respondent herein. But the fourth respondent has filed a counter affidavit contending that she was born on 5.5.1952 at Kuravapulam Village and that the Birth Certificate produced by the petitioner did not relate to her. I am really wonder struck as to how the name of the child and the names of its parents (at Malaysia) exactly tally with those of the fourth respondent (in India).
14. Similarly, the second additional document filed by the petitioner is a Primary School Leaving Certificate issued by the Persiaran Raja Muda Musa (Jalan Watson) Tamil National Type School at Port Klang, Malaysia. This Certificate contains the name of the student as Vijayaletchumy. The name of the father of the girl is given as Somu. The date and place of birth are mentioned as 18.3.1956 and Port Swettenham respectively. The fourth respondent has denied even this document and has claimed that the place of birth indicated in additional document No.1 and the place of birth indicated in additional document No.2 varies.
15. The third document relied upon by the petitioner is an Identity Card issued by the Malaysian Government. Interestingly, the fourth respondent has admitted in her counter that this Identity Card relates to her. However, she has claimed that it was an identity card taken by her to enable her to visit her son and daughter. She has also claimed that it is not a Citizenship Card of any kind.
16. The fourth document relied upon by the petitioner is a letter of appointment issued by a Company in Malaysia to a person by name Vejailetchumy, daughter of Somu. The letter of appointment is dated 28.8.1998. The address indicated is Block-9-1C, Jalan Pelabohan, Utara, 42000 Pelabohan Klang. The letter of appointment states that the appointment was to the post of Stripper. The appointee was to be on probation for 3 months, with the possibility of confirmation. The fourth respondent admits in her counter that this document pertains to her. Interestingly, the fourth respondent states that she obtained a letter of appointment to enable her to obtain visa to visit her children. The letter of appointment bears the Identity Card Number of the appointee as 560318-10-6274. It is this Identity Card Number that is also reflected in the Identity Card filed as additional document No.3. Clause 4 of the letter of appointment shows that it was a permanent appointment in the sense that the appointment was automatically liable to be confirmed upon the expiry of the probation period. Therefore, I do not know how an Indian citizen will be granted a letter of permanent appointment by a Company registered in Malaysia without a Visa having been obtained. The explanation given by the fourth respondent is quite funny. According to her, she took the letter of appointment for the purpose of getting a Visa to visit her children. But she could not have obtained a letter of appointment without first obtaining a Visa. Moreover, in all the documents that she has relied upon, her name is written in the way in which it will be written in India viz., Vijayalakshmi. But the name of the child whose birth is disclosed by the Birth Certificate (additional document No.1) as well as the name found in the letter of appointment (filed as additional document No.4) contains the name written as Vejailetchumy. The name of the father of the child indicated in document Nos.1 to 4 is the same viz., Somu. The explanation offered by the fourth respondent with regard to this letter of appointment, is sufficient to infer that the additional documents 1 and 2 may also relate only to the fourth respondent.
17. The fifth document is a statutory declaration. It is a declaration signed by one Vejailetchumy, daughter of Somu bearing Identity Card No. 560318-10-6274 and having residence at Block No.9-1C, Jalan Pelabuhan Utara, 42000 Port Klang. This statutory declaration contains a sworn statement made by the deponent that she was a permanent resident of Malaysia and that she was born in Malaysia on 18.3.1956. Unfortunately, the fourth respondent who has been able to state on oath that the Birth Certificate and the School Certificate, did not relate to her, is not able to say in her counter that this statutory declaration was not made by her. She has stated in her counter affidavit that she is not able to comment on this document as it is only a xerox copy and not the original. But all the particulars contained in this statutory declaration, tally with the admitted documents 3 and 4. Moreover, this declaration has been made before a Commissioner of Oaths at Malaysia.
18. The sixth document is an extract from the Register of Identity Cards issued by the Malaysia National Registration Department. The fourth respondent has stated in her counter that she is unable to comment even upon this document, as it happens to be a xerox copy. But the particulars of name, the address, the old identity card number and the new identity card number, all tally with what is already admitted by the fourth respondent. The date of birth alone is indicated as 18.3.1956, which the fourth respondent has already disputed. Interestingly, the status of citizenship is indicated in additional document No.6 as 'Permanent Resident'. I expected the fourth respondent at least to deny this statement that she was a permanent resident of Malaysia. But there is no such denial.
19. The seventh document is a Certificate issued by the Raja Zarina Girls National Secondary School, Port Klang on 26.7.2010, indicating that the person by name Vejailetchumy having Identity Card No.8212669 studied in the school from 1969 to 1971. In respect of this document, the fourth respondent has stated in the counter that she is unable to comment upon it as it is only a xerox copy. But the identity card number given in this document is the old identity card number as reflected even by the admitted documents.
20. The eighth document is a Certificate issued by the National Registration Department of Malaysia. As per this document, the Identity Card bearing No.560318-10-6274 was issued to a girl by name Vejailetchumy, daughter of Somu, born on 18.3.1956 at Klang General Hospital, Selangor. The status of residence of the person who is covered by the Certificate is indicated to be that of a permanent resident. Even in respect of this document, the fourth respondent has contended that it is only a photo copy and that the particulars relating to place and date of birth do not tally with her place and date of birth.
21. From the discussion in the preceding paragraphs, it is clear that (i) the fourth respondent is admitting the truth and veracity of at least a couple of additional documents; and (ii) the fourth respondent, without seriously disputing the contents of the other documents, remains non committal in respect of the other documents, by stating that since they are xerox copies, she is unable to comment upon them.
22. But, unfortunately for the fourth respondent, what is borne out by even the two admitted documents, enhances the credibility of the other documents. As pointed out earlier, the fourth respondent admits the additional document Nos.3 and 4, which are the identity card and letter of appointment. The Immigration Laws of Malaysia do permit a non citizen and a non permanent resident, to gain employment on permanent basis. They do not even permit somebody to get an identity card, containing the thumb impression. More over, the identity card number (IC No.) indicated in the admitted document is 560318-10-6274. This identity card number tallies with the card number indicated in the other documents, such as, statutory declaration and the extract from the Register of Identity Cards. The name of the person having that identity card and the name of the father of that person, also tally with the particulars contained in the other documents. In other words, the particulars found in the admitted documents, which exactly tally with the particulars contained in the other documents, clearly enhance the credibility of the non admitted documents. I am simply unable to reconcile myself to this wonderful coincidence that somebody was born in Malaysia with the same name as that of the fourth respondent, to a couple by name Somu and Loganayaki, which also tally with the names of the parents of the fourth respondent.
23. The learned counsel for the fourth respondent attempted to take advantage of the fact that different places are indicated in different certificates, as the place of birth of Vejailetchumi. In one document, the place of birth is shown as Port Klang. In another, it is shown as Port Swettenham. In yet another, it is shown as Selangor. Hence the contention that the documents are unreliable. But unfortunately for the fourth respondent, a reference to 'google maps' could easily expose the fragility of this argument. Klang is the name of the district. Selangor is the name of the State in which the district of Klang is situate. The Port of Klang was colonially known as Port Swettenham. The word 'Port' is called as "Pelabuhan" in Malay language. Therefore, there are no discrepencies in the entries found in the additional documents, in respect of the place of birth of Vejailetchumy.
24. Another interesting feature is that the signature of the deponent contained in the statutory declaration filed as additional document No.5, tallies exactly with the signature of the fourth respondent in the counter affidavit filed before this Court. The photographs found in the admitted document, viz., the identity card also tallies with the photograph contained in the identity card issued by the Election Commissioner.
25. In the light of the above, I am of the view that a very serious issue with regard to the citizenship of the fourth respondent has not only been raised by the petitioner, but also been demonstrated to a great extent to be certainly worth considering. There is no dispute about the fact that the birth of the fourth respondent at Kuravapulam Village allegedly on 05.5.1952, was not registered with the local body under the provisions of the Registration of Births and Deaths Act. This is also established by the non availability certificate already marked by the petitioner before the Election Tribunal. The two additional documents, whose veracity is admitted by the fourth respondent, corroborate the details contained in the documents which are not admitted. Those documents point to a greater probability about the genuineness of the first additional document filed by the petitioner.
26. It is true that with the evidence available before it, the Election Tribunal could not have done more. The petitioner could not make a serious dent in the claim of citizenship of the fourth respondent, before the Election Tribunal. Therefore, the Election Tribunal came to the conclusion that it did. But, before me, the petitioner has come up with the above additional documents, which make serious inroads into the claim of the fourth respondent about her citizenship. Therefore, under such circumstances, what is the role of this Court, is the question that I should now address myself to, with reference to the legal position on the point. Hence, I shall now advert to the legal position.
27. Section 33 of the Tamil Nadu Panchayats Act, 1994, prescribes the qualification of candidates for election. It reads as follows:
"33. No person shall be qualified for election as a member or president of a panchayat unless-
(i) his name appears on the electoral roll of the concerned panchayat; and
(ii) he has completed his twenty-first year of age."
28. Sections 34 to 38 deal with disqualifications. The case on hand does not fall under any of the categories enumerated under Sections 34 to 38. In other words, the allegation of the petitioner against the fourth respondent is not that the fourth respondent is disqualified from contesting or getting elected in terms of sections 34 to 38 of the Act. On the contrary, the allegation is that the fourth respondent is not even qualified to contest the elections, in view of her citizenship, or the lack of it. Therefore, the allegation has to be tested only with reference to the prescriptions contained in Section 33.
29. The Tamil Nadu Panchayats Act, 1994, does not contain any procedure to be followed for the preparation of electoral rolls for Panchayats. Section 14, which deals with the electoral roll for Village Panchayats, merely states under Sub-section (3), that the executive authority of the Village Panchayat shall maintain in the prescribed manner, an electoral roll for each ward of the Village Panchayat. Similarly, Section 23, which deals with the electoral roll for Panchayat Union Council, merely states that the Commissioner of the Panchayat Union shall maintain in the prescribed manner, the electoral roll for each ward in the Panchayat Union.
30. However, Rules 14 to 23 of the Tamil Nadu Panchayats (Elections) Rules, 1995, deal with the preparation and publication of Panchayat Electoral Rolls. The prescriptions contained in these rules can be summarised as follows:
(i) The electoral roll of a Panchayat is to be prepared by the Panchayat Electoral Registration Officer, with reference to the qualifying date, by integrating the particulars in the various entries available in the current electoral roll of the Tamil Nadu Legislative Assembly (Rule 14);
(ii) The electoral roll is to be prepared in the format adopted in the roll of the Tamil Nadu Legislative Assembly Constituency (Rule 18);
(iii) The names of the electors should be numbered consecutively and shall be arranged according to house numbers (Rule 19);
(iv) Immediately after the preparation of electoral roll in accordance with Rules 14 to 19, the Panchayat Electoral Registration Officer should make arrangements to print or cyclostyle as many copies of the roll and publish the same along with a notice in Form 1 appended to the Rules. He must make copies available for inspection by the public and the political parties (Rule 20(1));
(v) The Panchayat Electoral Registration Officer should give further publicity and also supply two copies of the roll free of costs to recognised political parties (Rule 20(2) & (3)); and
(vi) Upon the publication of the electoral roll, as per Rule 20(1), the roll shall become the electoral roll of the ward of the Village Panchayat or Panchayat Union, as the case may be and it shall remain in force, till a fresh electoral roll is prepared and published (Rule 20(4)).
31. The procedure for lodging claims and objections to the omissions or inclusions in the electoral roll is prescribed in Rule 21, which requires special attention and hence, it is extracted as follows:
"Procedure for lodging claims and objections.- All omissions of names in any part of the roll or objections to any entry in the roll, at any point of time after its publication under rule 20, shall be settled by first getting amended suitably the relevant portion of the electoral roll of the Tamil Nadu Legislative Assembly Constituency based on which the panchayat roll was prepared. Anybody wishing to raise a claim for inclusion of any name in the roll or any objection in respect of any entry in the roll so published, shall submit a proper claim or objection under the provisions of the Registration of Electors Rules, 1960 to the Electoral Registration Officer of the concerned Legislative Assembly Constituency. Subject to the provisions in section 30 of the Act and based on the orders of the Electoral Registration Officer of the Assembly Constituency on such claims and objections, the Panchayat Electoral Registration Officer shall amend the relevant portion of the panchayat electoral roll, incorporating the changes by issuing an amendment to the relevant part of the panchayat electoral roll. In case of any clerical or printing error or both, and when the entires deviate from the particulars of Assembly roll, the Panchayat Electoral Registration Officer may cause such errors, omissions and commissions rectified so as to bring it in conformity with the particulars of the Assembly roll concerned. In other words, the Panchayat Electoral Registration Officer, will not resort to suo motu revision of the rolls by way of deletions or additions or modifications."
32. A reading of Rule 21 extracted above shows that a person who wishes to object to the inclusion of the name of any person in the electoral roll published under Rule 20, should submit a proper claim or objection under the provisions of the Registration of the Electors Rules, 1960, to the Electoral Registration Officer of the concerned Legislative Assembly Constituency. If based upon such objections, the Electoral Registration Officer of the Assembly Constituency passes an order, the Panchayat Electoral Registration Officer shall then amend the relevant portion of the Panchayat Electoral Roll, incorporating the changes by issuing an amendment to the relevant part of the Panchayat Electoral Roll. It is important to note that Rule 21 makes it clear that the Panchayat Electoral Registration Officer cannot resort to suo motu revision of the Rules, by way of deletions or additions or modifications. Therefore, it is necessary to take a detour to the Registration of the Electors Rules, 1960, since Rule 21 of the Tamil Nadu Panchayats (Elections) Rules, 1995, directs a person to take recourse to the same.
33. The Registration of Electors Rules, 1960 were issued by the Central Government in exercise of the power conferred by section 28 of The Representation of the People Act, 1950 (Act 43 of 1950). The said Act provides (A) for allocation of seats in, and the delimitation of constituencies for the purpose of elections to the House of People and the Legislatures of States, (B) the qualifications of voters at such elections and (C) the preparation of electoral rolls. Section 28(1) of the Act empowers the Central Government to make rules for carrying out the purposes of the Act. One of the items enumerated in Sub-section (2) of Section 28 of the Representation of the People Act, 1950, for which, the Central Government may frame rules under Section 28(1), is the revision and correction of electoral rolls. It is in exercise of the power so conferred that the Central Government had issued the 1960 rules.Part III of the said Act, deals with electoral rolls for Assembly Constituencies.
34. Before scanning the rules, it is necessary to take a look at some of the important provisions of the Act itself. Section 16 of the Representation of the People Act, 1950, prescribes the disqualifications for registration in an electoral roll. It reads as follows:
"16.Disqualification for registration in an electoral roll.-
(1) A person shall be disqualified for registration in an electoral roll if he -
(a) is not a citizen of India; or
(b) is of unsound mind and stands so declared by a competent Court; or
(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections. (2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included:
Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub-section (1) shall forthwith be reinstated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorizing such removal."
35. Section 19 of the Act states that a person who is not less than 18 years of age on the qualifying date and who is ordinarily resident in a constituency, shall be entitled to be registered in the electoral roll for that constituency. The expression "ordinarily resident" is defined in Section 20 of the Act. Section 21(1) of the Act makes provision for preparation of the electoral roll for each Constituency with reference to the qualifying date. The electoral roll so prepared, is liable to be revised in the prescribed manner by reference to the qualifying date, under Sub-section (2) of Section 21, before each general election to the House of People or to the Legislative Assembly of the State. However, Sub-section (3) empowers the Election Commission to direct a special revision of the electoral roll for any constituency, for reasons to be recorded, notwithstanding the timing prescribed under Sub-section (2).
36. Section 22 of the Act empowers the Electoral Registration Officer of a constituency to amend, transpose or delete any entry, on an application made to him or on his own motion, but after conducting an enquiry. Section 22 requires reproduction and hence, it is reproduced as follows:
"22.Correction of entries in electoral rolls.-
If the electoral registration officer for a constituency, on application to him or on his own motion, is satisfied after such inquiry as he thinks fit, that any entry in the electoral roll of the constituency-
(a) is erroneous or defective in any particular,
(b) should be transposed to another place in the roll on the ground that the person concerned has changed his place of ordinary residence within the constituency, or
(c) should be deleted on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll, the electoral registration officer shall, subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, amend, transpose or delete the entry;
Provided that before taking any action on any ground under clause (a) or clause (b) or any action under clause (c) on the ground that the person concerned has ceased to be ordinarily resident in the constituency or that he is otherwise not entitled to be registered in the electoral roll of that constituency, the electoral registration officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him."
37. An order passed under Section 22 by the Electoral Registration Officer can be challenged in an appeal under Section 24 to the Chief Electoral Officer. Section 30 of the Act bars the jurisdiction of civil Courts, (i) to adjudicate the question of entitlement of a person to be registered in an electoral roll in a constituency; and (ii) to go into the legality of any decision of the Electoral Registration Officer, with regard to the revision of any electoral roll. But, this bar of jurisdiction of civil Courts has to be understood in the context of the difference in the purport and scope of Sections 16 and 19. The differences are:-
(i) While Section 16 deals with disqualifications for registration, Section 19 deals with the conditions for registration in the electoral roll.
(ii) While Section 16 deals with citizenship, Section 19 deals with "ordinary residence". This distinction has always to be kept in mind, in view of the pronouncements of the Apex Court, which, I shall advert to later.
38. As stated earlier, the Registration of Electors Rules, 1960 were issued by the Central Government in exercise of the powers conferred by Section 28 of the Act. Rule 13 of the said Rules prescribes three forms, viz., Form Nos.6, 7 and 8 respectively, for (i) lodging a claim, (ii) objecting to the inclusion of the name and (iii) objecting to the particulars contained in any entry in the roll. Rule 14 requires that every claim or objection shall be either presented to the Registration Officer or sent by post. Rules 19 and 20 prescribe the procedure for issuing a notice of hearing and conducting an inquiry into the claim or objection. Rule 23 provides for an appeal from any decision of the Registration Officer.
39. Therefore, from the provisions of the Representation of the People Act, 1950 and the Registration of Electors Rules, 1960, it is clear (i) that only a person who is an Indian citizen can have his name included in the electoral roll; and (ii) that if the name of a person is wrongly included in the electoral roll, an application for deletion of such entry can be made in accordance with the provisions of the Registration of Electors Rules, 1960. Once a person's name is found in the electoral roll and once he is admitted to be a person of 21 years of age, the two conditions prescribed in Section 33 of the Tamil Nadu Panchayats Act, 1994, stand satisfied. Therefore, it may not be possible for the Returning Officer to reject the nomination of such a person. But, the question that would still remain to be considered is as to whether the Election Tribunal would be competent to go into the question of citizenship of a candidate or not.
40. Relying upon the decision of the Division Bench of this Court in Dr.Subramanian Swamy v. T.T.V.Dinakaran [2004 (1) LW 712], it is contended by Mr.Srinath Sridevan, learned counsel for the fourth respondent that once the name of a person is found in the electoral roll, it is not open to the election petitioner to question the citizenship of the elected candidate, without taking recourse to have the electoral roll amended. But, this contention runs contrary to the law laid down by the Apex Court and the decision in Dr.Subramanian Swamy arose not out of an election petition, but out of a writ petition.
41. In Dr.Subramanian Swamy, a writ petition was filed under Article 226 of the Constitution, seeking a writ of quo warranto to declare that the first respondent therein was disqualified to be elected as a member of the Lok Sabha. Later, the prayer was amended as one for Mandamus. The challenge to the election was on the ground that the elected candidate was not a resident of India, but, a non resident Indian staying in Singapore. While dismissing the writ petition, it was held by the Division Bench that once a person is shown as a voter in the electoral roll, it raises a statutory presumption that he is entitled both to contest and vote and the said rights cannot be curtailed by any other process than resorting to Section 22 of the Representation of the People Act, 1950. For coming to the said conclusion, the Division Bench relied upon three decisions of the Supreme Court. They are (i) Rampakavi Rayappa Belagali v. B.D.Jatti [AIR 1971 SC 1348]; (ii) Hari Prasad Mulshankar Trivedi v. V.B.Raju [1974 (3) SCC 415]; and (iii) Hari Shanker Jain v. Sonia Gandhi [2001 (8) SCC 233 ].
42. In Rampakavi Rayappa Belagali, the election of B.D.Jatti was challenged on several grounds before the Mysore High Court (Election Tribunal). One of the grounds of challenge was that he ceased to be a person ordinarily resident within the constituency, during the relevant period and that by virtue of his long stay in the city of Bangalore, his name had already been entered in the electoral roll relating to the municipal area of that city. But, with a view to contest the election from this constituency, he got it deleted from the Bangalore roll and had it entered in the roll of the particular constituency. Therefore, after taking note of the provisions of the Representation of the People Act, 1950, the Supreme Court pointed out in paragraph 7 of its decision in Belagali that the entries made in an electoral roll of a constituency can only be challenged in accordance with the machinery provided by the Act and the Rules and not in any other manner or in any other forum. However, the Supreme Court added a rider to the effect that if some question of violation of the provisions of the Constitution was involved, the same would be an exception to the general rule. The last line of the first part of paragraph 7 of the decision in Belagali, states the principle of law in the following words:
"The entire scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an electoral roll of a constituency can only be challenged in accordance with the machinery provided by it and not in any other manner or before any other forum unless some question of violation of the provisions of the Constitution is involved."
43. In the same paragraph 7, the Court also pointed out that its earlier decision in Durga Shankar Mehta v. Thakur Raghuraj Singh [AIR 1954 SC 520], involved an allegation of non compliance with the provisions of Article 173 of the Constitution and that therefore, an Election Tribunal could declare an election to be void, if there was a violation of the constitutional provisions.
44. Under Article 173(a) of the Constitution, a person shall not be qualified to be chosen to fill a seat in the legislature of a State, unless he is a citizen of India. Therefore, if an allegation of violation of the Constitutional provision is made in an election petition, it cannot be contended that the machinery provided under the Representation of the People Act, 1950, alone could rectify the entry contained in the electoral roll. Apart from making it clear at least in two portions of paragraph 7 of its judgment in Belagali that a violation of the provisions of the Constitution is an exception to the exclusion of jurisdiction of the Election Tribunal, the Supreme Court also said the following towards the end of paragraph 8: "It does not entitle the Court in an election petition to set aside any election on the ground of non compliance with the provisions of the Act of 1950 or of any Rules made thereunder with the exception of Section 16". Therefore, it is clear from the decision in Belagali that an allegation of violation of Article 173(a) read with Section 16 of the 1950 Act, can be gone into by the Election Tribunal.
45. In Hari Prasad Mulshankar Trivedi, the Constitution Bench of the Supreme Court was concerned with a decision rendered by the High Court of Gujarat on a preliminary issue raised with regard to the jurisdiction of the Election Tribunal. The question was as to whether the Election Tribunal had jurisdiction to decide whether the entries in the electoral roll with regard to the returned candidates were valid or not. The High Court held that it had jurisdiction to go into the question as to whether the returned candidates were ordinarily resident in any of the parliamentary constituencies in the State of Gujarat. But, the decision was reversed by the Supreme Court on the ground that Sections 14 to 24 of the Representation of the People Act, 1950, are integrated provisions, which form a complete code in the matter of preparation and maintenance of electoral rolls and that Section 30 of the Act ousts the jurisdiction of civil Courts to adjudicate the question.
46. But, in paragraphs 30 and 31 of its decision, the Constitution Bench drew a clear distinction between an allegation of non compliance with the provisions of Section 19 of the 1950 Act and an allegation of disqualification under Section 16 of the 1950 Act. As pointed out earlier, Section 16 of the 1950 Act prescribes the disqualifications for registration in an electoral roll. But, Section 19 merely prescribes the conditions for registration. While the prescription under Section 16 relates to citizenship, which is traceable to the constitutional provisions (Article 173), the prescription under Section 19 relates only to residency and not traceable to any constitutional provisions. Therefore, the ouster of jurisdiction of civil Courts under Section 30(a) of the 1950 Act, which is confined only to the adjudication of any question about the entitlement of a person to be registered in an electoral roll, can be linked only to Section 19 and not to Section 16. As a matter of fact, the language of section 30 leaves no ambiguity. The jurisdiction of the civil Courts stands ousted under section 30, only with respect to two things. They are (i) the adjudication of any question about the entitlement of a person to be registered in an electoral roll; and (ii) the challenge to the legality of any action of the Electoral Registration Officer for the revision of any such roll.
47. Bearing the above distinction in mind, the Constitution Bench held in paragraph 25 of its decision, as follows:
"The question whether a person whose name is entered in the electoral roll is qualified under the Constitution and whether he suffers from any of the disqualifications specified in Section 16 can always be gone into by the Court trying an election petition. The electoral roll is never conclusive or final in respect of these matters [see the decision in P.R.Belagali v. B.D.Jatti (supra)]."
48. Therefore, it is clear that the Supreme Court consistently made a distinction between a case which would fall under Section 16 and a case which would fall under Section 19 of the Representation of the People Act, 1950. This distinction has arisen on account of the fact that the disqualification under Section 16 is traceable to the Constitutional provisions. Therefore, whenever a question relating to the citizenship of a candidate is raised, it is not open to the returned candidate to contend that the election petitioner should first go to the Electoral Registration Officer in terms of the provisions of Section 22 of the 1950 Act and the relevant Rules under the Registration of Electors Rules, 1960, before approaching the Election Tribunal.
49. Even in Hari Shanker Jain, relied upon by the Division Bench in Dr.Subramanian Swamy, it was made clear by the Supreme Court that a plea that a returned candidate is not a citizen of India, can be raised in an election petition before the High Court, in spite of the returned candidate holding a certificate of citizenship by registration under Section 5(1)(c) of the Citizenship Act. Pointing out that the certificate of citizenship issued under Section 5 of the Citizenship Act was a statutory certificate issued by a statutory authority giving rise to a presumption under Section 114 of the Evidence Act, 1872, the Court also stated that the presumption was rebuttable and not conclusive. Before holding so, the Supreme Court noted in paragraph 17 of its decision, the distinction maintained by the Constitution Bench in Hari Prasad Mulshankar Trivedi, between cases where the qualification or disqualification of a candidate to fill up a seat is in issue and the cases where the eligibility or ineligibility to be included in the voters list alone is in issue.
50. In Sushil Kumar v. Rakesh Kumar [2003 (8) SCC 673], relied upon by Mr.S.Jayakumar, learned counsel for the petitioner, the election of the returned candidate was challenged on the sole ground that he had not completed 25 years of age on the date of filing his nomination. There was thus an allegation of violation of Article 173(b) of the Constitution. The Patna High Court dismissed the election petition and an appeal came up before the Supreme Court. The Supreme Court held that since the issue related to a disqualification prescribed by Article 173(b) of the Constitution, the Election Tribunal was bound to consider the question. In paragraph 79 of the judgment, the Supreme Court held that the endeavour of the Court should be to see that a disqualified person should not be allowed to hold the office. While ensuring that the election of the representative of the people is not set aside on flimsy grounds, the Court has a duty, as pointed out by the Supreme Court in the same paragraph, to see that the Constitutional mandate is fulfilled.
51. Therefore, it is clear that if the materials which are now before me, had been produced before the Election Tribunal, the Election Tribunal could have gone into the question of citizenship of the fourth respondent, without driving the petitioner to the machinery provided under the Representation of the People Act, 1950, and the provisions of the Registration of Electors Rules, 1960.
52. It is relevant to note that under Section 14 of the Tamil Nadu Panchayats Act, 1994, the electoral roll of the Panchayat Union Council shall be the electoral roll for a Village Panchayat. Under Section 23 of the Act, the electoral roll of the District Panchayat for the time being in force, shall be the electoral roll for a Panchayat Union Council. Under Section 30, the electoral roll of the Tamil Nadu Legislative Assembly, prepared and revised in accordance with the provisions of the law for the time being in force, shall be the electoral roll of a District Panchayat. Therefore, the electoral roll, which forms the basis for the elections to Village Panchayats, Panchayat Union Councils and District Panchayats, is the same as the one prepared for the Assembly. Consequently, it is the one which is governed by the provisions of the Representation of the People Act, 1950, and the Registration of Electors Rules, 1960. Therefore, by necessary inference, the qualification prescribed in Section 33(i) of the Tamil Nadu Panchayats Act, 1994, has to be read in conjunction with Section 16(1)(a) of the Representation of the People Act, 1950, and Article 173(a) of the Constitution. If so read, it would be clear that the allegation of the petitioner that the fourth respondent is not a citizen of India goes to the root of the matter, emanating from the constitutional provisions. Therefore, I am of the view that the Election Tribunal itself is competent to go into this question, in the light of the additional evidence adduced.
53. I have already pointed out that at least two of the documents now filed as additional evidence, are admitted by the fourth respondent. The particulars found in those two documents tally with and also corroborate the particulars found in the documents whose veracity is neither admitted nor denied by the fourth respondent. She has chosen to tread a very cautious approach with regard to the other documents, by stating that she is unable to comment on them, as they are xerox copies. The admitted documents show that the fourth respondent was issued with an identity card with IC number. The new and old IC numbers found in the other documents raise a very strong suspicion with regard to the citizenship of the fourth respondent. The fourth respondent could not have gained employment on a permanent basis, without already having obtained a visa. Therefore, her statement that she obtained a letter of appointment for the purpose of gaining visa is quite funny. In the light of the admitted documents and in the light of the particulars contained in the other documents, which stand corroborated by the admitted documents, the fourth respondent has quite a lot to explain and she has quite a long way to travel. I cannot simply close my eyes and allow this ignis fatuus sought to be created by the fourth respondent to pass through me.
54. Therefore, this civil revision petition is allowed and the impugned order of the Election Tribunal is set aside and Election O.P.No.81 of 2006 is remanded back to the District Court, Nagapattinam, for a fresh enquiry. It is open to the petitioner to file applications (i) for reopening and recalling the evidence on her side, (ii) for filing additional documents, and (iii) for recalling the fourth respondent, already examined as RW2, for the purpose of further cross examination on the basis of the additional documents. It is open to the fourth respondent also to file similar applications and adduce additional evidence, if she deems fit and necessary. The District Court, Nagapattinam, shall allow all those applications, conduct an enquiry and dispose of the Election O.P., within a period of two months from the date of receipt of a copy of this order. However, in the facts and circumstances of the case, there will be no order as to costs. Consequently, M.P.No.1 of 2011 is closed with the above liberty.
Svn/kpl To
1.The District Court, Nagapattinam.
2.The Election Officer and Commissioner, Panchayat Union, Vedaraniyam.
3.The District Collector, Government of Tamil Nadu, Nagapattinam.
4.The State Chief Election Officer, Chennai