B. M. Ramaswamy vs B. M. Krishnamurthy And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 233 of 1962

Decision Date: 30 July 1962

Coram: Bhuvneshwar P. Sinha, Syed Jaffer Imam, K.N. Wanchoo, J.C. Shah, N. Rajagopala Ayyangar, Subba Rao

In this case the Court recorded that the petition was filed by B M Ramaswamy against B M Krishnamurthy and other respondents. The judgment was delivered on 30 July 1962 by a bench comprising Justice Subbarao, Justice K Sinha, Chief Justice Bhuvneshwarlal P Sinha, Justice Syed Jaffer Imam, Justice K N Wanchoo, Justice J C Shah, Justice N Rajagopala Ayyangar and Justice K Sinha. The matter was cited as 1963 AIR 458 and 1963 SCR (3) 479 and was referred to in several later reports. The dispute concerned the validity of an election to a Panchayat in the State of Mysore.

The appellant and five other candidates filed their nomination papers within the prescribed time, and the returning officer declared the appellant and respondent 2 to be duly elected. Respondent 1, however, filed an election petition under section 13 of the Mysore Village Panchayats and Local Boards Act, 1959, seeking a declaration that the appellant’s election was invalid and that respondent 1 himself should be declared elected. The Munsif held that on the date fixed for filing nominations the appellant’s name was not present in the authenticated list of voters; consequently the Munsif concluded that the appellant was not entitled to file nomination papers and set aside his election.

The High Court affirmed the Munsif’s conclusion, but on a different basis. It observed that although the appellant’s name had been entered in the electoral roll of the legislative constituency under section 23 of the Representation of the People Act, 1950, the entry had been made in direct contravention of rule 26 of the Representation of the People Rules, 1956. Accordingly, the High Court held that the inclusion was void and that the election of the appellant should be set aside.

On appeal to this Court by special leave, the Court held that section 10 of the Mysore Village Panchayats and Local Boards Act, 1959, did not authorize a finding that the appellant’s nomination papers had been improperly accepted. Since the appellant’s name appeared in the list of voters, he satisfied the qualification to be elected as a member of the Panchayat. The Court observed that the Act contained no provision empowering the High Court to set aside an election merely because a candidate’s name had been illegally entered in the electoral roll. The Court further noted that while the action of the Electoral Registration Officer in including the appellant’s name might have been illegal, that illegality could not be examined in a civil proceeding. The Court explained that any mistake in the electoral roll could be corrected only through the remedy prescribed by law, such as an appeal under rule 24 of the Rules or any other appropriate procedure, and that the officer’s action was not a nullity because he possessed jurisdiction to consider the application for inclusion and to act as he deemed fit, even if his procedure was flawed.

It was held that any error in the inclusion of a name in the electoral roll could be corrected only by following the procedure laid down in law. The proper way to obtain such correction was to file an appeal under rule twenty‑four of the election rules, or to seek any other legal remedy that the statutes allowed. The Court observed that the action taken by the Electoral Registration Officer was not a void act. The Officer undeniably possessed the authority to consider an application seeking the insertion of the appellant’s name in the electoral roll and to act according to his own judgment. Although the Officer may have failed to observe the exact procedural steps prescribed, this failure did not deprive him of his jurisdiction; it merely meant that his action could be characterized as illegal, but not as a nullity that could be ignored by the courts.

The appeal under consideration was Civil Appeal No. 233 of 1962, which had been granted special leave from the judgment and order dated 2 August 1961 delivered by the Mysore High Court in Writ Petition No. 814 of 1961. Counsel for the appellant argued the case, while the respondents did not appear before the Court. The judgment was pronounced on 30 July 1962 by Justice Subba Rao. The matter before the Court arose from a contest for the Panchayat of Byappanahalli, first constituency, in the State of Mysore. The election schedule was as follows: the notification of election was issued on 6 February 1960; candidates were required to lodge their nomination papers by 16 March 1960; the scrutiny of nomination papers took place on 18 March 1960; polling was conducted on 13 April 1960; and the results were announced on 14 April 1960. The appellant together with five other candidates filed their nomination papers within the stipulated time, and the poll was held on the appointed date. The vote count recorded the appellant receiving 169 votes, the second respondent receiving 158 votes, the first respondent receiving 128 votes, the third respondent receiving 115 votes, the fourth respondent receiving 38 votes, and the fifth respondent receiving 46 votes. Consequently, the appellant and the second respondent were declared elected to the Panchayat. Dissatisfied with this outcome, the first respondent instituted an election petition under section thirteen of the Mysore Village Panchayats and Local Boards Act, 1959, before the Second Munsiff Court in Bangalore. In his petition, the first respondent asserted that at the time nominations were to be filed, the appellant’s name did not appear in the authenticated list of voters published under rule three, clause (5) of the Mysore Panchayats and Local Boards Election Rules, 1959, and therefore the appellant was not entitled to submit a nomination. He further contended that the appellant was not ordinarily resident in Byappanahalli and was consequently disqualified from contesting the election from that constituency. The learned Munsiff examined the two allegations. He accepted that the appellant was ordinarily resident in the village and thus qualified to be entered in the electoral roll. However, the Munsiff concluded that the appellant’s name was absent from the authenticated list of voters for the Panchayat at the relevant time. Relying on that finding, the Munsiff set aside the appellant’s election and declared the first respondent, who had obtained the next highest number of votes, to be duly elected in his place.

The Court noted that the High Court judges, on appeal, had taken account of the Munsiff’s finding that the appellant’s name did not appear in the authenticated list of voters for the Panchayat. Although the High Court judges disagreed with the reasoning employed by the Munsiff, they nonetheless accepted his conclusion that the election should be set aside, but they arrived at that conclusion by a different line of thought. The judges observed that the appellant’s name had indeed been entered in the electoral roll of the legislative constituency before the prescribed date, as required by section 23 of the Representation of the People Act, 1950. However, they held that this entry had been made in direct breach of rule 26 of the Representation of the People Rules, 1956, and therefore the inclusion was void. On that basis, they concurred with the Munsiff that the appellant’s election was liable to be declared invalid, which gave rise to the present appeal. The Court further recorded that no respondents appeared before it. Before addressing the substantive issue raised on appeal, the Court found it necessary to clarify the statutory framework governing the matter. Section 9 of the Act provides that the electoral roll of the Mysore Legislative Assembly, insofar as it covers the portion of the Assembly constituency that falls within a Panchayat constituency, shall be deemed, for the purposes of the Act, to constitute the list of voters for that Panchayat constituency. The section also directs that the Secretary of the Panchayat must, in the manner prescribed, maintain a separate list of voters for each Panchayat constituency, and includes an explanatory note defining “electoral roll” as one prepared under the provisions of the Representation of the People Act, 1950, as in force at the relevant time. Section 10 further states that any person whose name appears in the list of voters of a Panchayat constituency, unless disqualified under the Act or any other prevailing law, is qualified to be elected as a member of that Panchayat. Rule 3 of the Panchayat election Rules prescribes the method for maintaining and safeguarding the list of voters. It requires the Panchayat Secretary to keep a list of voters for each constituency, to authenticate the list by affixing the Panchayat seal, and to periodically incorporate any corrections made to the Electoral Roll of the Mysore Legislative Assembly into the authenticated copy, initialing each correction. From these provisions, it is clear that the portion of the Mysore Legislative Assembly electoral roll that pertains to a Panchayat constituency is deemed to be the list of voters for that constituency, and that the Panchayat Secretary is obligated to preserve a duly authenticated, separate list of voters for the constituency. The Munsiff had held that, because the authenticated list of Panchayat voters had not been produced before him, it was not established that the appellant’s name had been included in that list on the nomination date.

Because the authenticated list of panchayat voters was not produced before the learned Munsiff, it was not established that the appellant’s name appeared on that list at the date of nomination. The learned Judges of the High Court declined to accept that finding, not on the ground that they disagreed with the reasoning of the learned Munsiff, but simply because they chose not to adopt it; however, they did not set out any reasons for departing from the Munsiff’s conclusion. A review of the election petition reveals that the first respondent, in his petition, conceded that the appellant’s name was included in the authenticated list on the date when the nomination paper was filed. In view of that admission, the High Court judges presumably found no basis to uphold the Munsiff’s finding and therefore declined to sustain it. Since the petition itself acknowledges the inclusion of the appellant’s name, it cannot be expected that the appellant produce the authenticated list again to prove a matter already admitted. Consequently, the only real issue remaining for consideration in this appeal concerned the legality of the appellant’s inclusion in the electoral roll of the Mysore Legislative Assembly. Counsel for the appellant argued that the High Court erred in examining that question because section 30 of the Representation of the People Act bars civil courts from questioning any action taken by, or under the authority of, the Electoral Registration Officer. It was a matter of record that the appellant’s name had been entered in the Mysore Legislative Assembly roll before the deadline for filing nomination papers, but the appellant contended that the Electoral Registration Officer had not complied with the procedural requirements applicable to such inclusion. The relevant statutory provisions were then set out for consideration. Section 23 of the Representation of the People Act, 1950, provides: ‘(1) Any parson whose name is not included in the electoral roll of a constituency may apply in the manner hereinafter provided for the inclusion of his name in that roll.’ Rule 26 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956, stipulates: (i) every application under sub‑section (i) of section 23 shall be made in duplicate in Form 4 (Part 1) and shall be accompanied—(a) where it is addressed to the Chief Electoral Officer, by a fee of ten rupees, and (b) where it is addressed to the Electoral Registration Officer, by a fee of one rupee; (2) the fee specified in sub‑section (i) shall be paid by means of non‑judicial stamps; (3) the Chief Electoral Officer or, as the case may be, the Electoral Registration Officer shall, immediately on receipt of such application, direct that one copy thereof be posted in a 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 Chief Electoral Officer or, as the case may be, the Electoral Registration Officer shall, as soon as may be after the expiry of the period specified in sub‑rule (3), consider any objections received and, if satisfied that the appellant is entitled to be registered in the electoral roll, direct his name to be included therein.

The registration officer was required, after the expiry of the period prescribed in sub‑rule (3), to examine any objections that had been received and, if he was satisfied that the appellant deserved to be entered in the electoral roll, to direct that the appellant’s name be entered therein. Section 24 of the Representation of the People Act, 1950, provides that an appeal may be made, within the time and in the manner prescribed, (a) to the chief electoral officer against any order of the electoral registration officer made under section 22 or section 23, and (b) to the Election Commission against any order of the chief electoral officer made under section 23. Rule 27 of the Representation of the People (preparation of Electoral Rolls) Rules, 1956, sets out the procedure for filing such appeals. It was not contested that an application had been presented to the registration officer seeking inclusion of the appellant’s name in the electoral roll. It was, however, common ground that the registration officer had failed to comply with the procedure laid down in rule 26, which requires posting the application in a conspicuous place and inviting objections within the stipulated period. Consequently, the inclusion of the appellant’s name in the electoral roll could not be said to have been lawful.

Section 30 of the Representation of the People Act, 1950, makes clear that no civil court possessed jurisdiction to question the legality of any action taken by, or under the authority of, the electoral registration officer. Accordingly, although the officer’s action of entering the appellant’s name in the electoral roll was illegal, such action could not be challenged before a civil court; it could only be corrected by the remedy prescribed by law, namely by preferred appeal under rule 24 of the Rules or by any other appropriate remedy. The High Court was urged to hold that the officer’s order was a nullity because notice had not been given as required by the Rules. The Court found this contention difficult to sustain. The officer undeniably possessed jurisdiction to entertain the application for inclusion of the appellant’s name and to take the action he deemed appropriate. Non‑compliance with the procedural requirements did not deprive the officer of jurisdiction, although it rendered his action illegal. Such non‑compliance could not render the officer’s act a nullity, even though the order might be set aside on appeal or by another suitable remedy. The Act proceeds on the premise that the voters’ list is final for the purpose of elections. Under section 10 of the Act, “every person whose name is in the list of voters of any Panchayat constituency shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected as a member of” the Panchayat.

The Court observed that the statutory provision in section 10 of the Act declares that every person whose name appears in the list of voters for a Panchayat constituency is, unless disqualified under the Act or any other law, qualified to be elected as a member of the Panchayat. The disqualifications applicable to a candidate are enumerated in section 11. In the present case, the Court found that the appellant was not disqualified under any of those grounds; consequently the appellant was unquestionably qualified to be elected as a member of the Panchayat. The Court further noted that the Act grants a special jurisdiction to the Munsif to set aside an election, but that jurisdiction is confined strictly to the circumstances set out in section 13(3) of the Act. The specific clause relevant to the present dispute is section 13‑(3)(A)(d)(i), which deals with the improper acceptance of any nomination. In view of the language of section 10, the Court held that there could be no allegation of improper acceptance of the appellant’s nomination, because the appellant’s name was already present in the voters’ list, rendering him eligible for election to the Panchayat. Accordingly, the Court concluded that the Act contains no provision that would empower the High Court to set aside an election on the basis that a candidate’s name, though present in the voters’ list, had been entered there illegally. The Court also expressly refrained from expressing any opinion on the hypothetical question of whether, had the appellant’s election been declared void, the Munsif could have declared the first respondent duly elected in his place. For the reasons stated, the Court could not agree with the conclusions reached by the learned Munsif or by the learned Judges of the High Court. As a result, the Court allowed the appeal, dismissed the election petition, and ordered that costs be awarded throughout. The appeal was thereby allowed.