VENKATARAMIAH J. - (1.) THE appellant is a person residing at Pune in the State of Maharashtra. A bye-election was proposed to be held on the 2/02/1986 to fill a seat in the Maharashtra Legislative Assembly which had become vacant on account of the death of the sitting member who was representing 263 Jaoli Legislative Assmebly constituency in Satara district in the State of Maharashtra. THE last date for making nominations at the said election was the 10/01/1986 and the scrutiny of nomination papers was fixed to take place on 11/01/1986. THE appellant filed his nomination paper on 9/01/1986. Since he was not registered as an elector in the Jaoli constituency but was an elector of the Shivaji Nagar Assembly constituency in Pune, a certified copy of the relevant entry in the electoral roll of the Shivaji Nagar constituency in which his name appeared had to be filed along with his nomination paper or had to be produced -before the Returning Officer at the time of scrutiny as provided in sub-sec. (5) of S. 33 of the Representation of the People Act, 1951 (hereinafter referred to as the 1951 Act'). Accordingly the appellant applied to the Tahsildar, Pune city (who was also the Assistant Electoral Registration Officer, Shivaji Nagar Assembly constituency) who was the custodian of the electoral roll in force of that constituency to furnish him with a certified copy of the entry pertaining to him in the electoral roll on 6th Jan. 1986. In that application he specifically mentioned that he required the certified copy for the purpose of producing it before the Returning Officer of the Jaoli constituency for enabling him to file his nomination paper. THE certified copy was made ready on 8/01/1986 and delivered to the appellant on the same day by the Tahsildar, Pune city (Assistant Electoral Registration Officer, Shivajinagar Assembly constituency). THE certified copy was in Marathi language. THE material part of the English translation of the said certified copy reads thus : JUDGEMENT_55_SUPP1_1989Html1.htm
(2.) AFTER obtaining the above-said copy on 8/01/1986 the appellant filed his nomination paper as stated above on the next day, i e., on 9th Jan. 1986 and along with his nomination paper he produced the certified copy obtained by him as required by sub-sec. (5) of S. 33 of the 1951 Act. On seeing the said certified copy the Returning Officer of Jaoli constituency told the appellant that since it had been noted in the certified copy that the latest day of publication of the electoral roll in which the name of the appellant was appearing was 31st Jan. 1984 he had to bring another certified copy as there were revisions subsequent to Jan. 31, 1984. Acting on the suggestion made by the Returning Officer the appellant returned to Pune again and applied for another certified copy on the 10th Jan. 1986 after the office of the Tahsi1dar was opened in the forenoon. The Tahsildar told him that the certified copy would be ready by 4.30 in the afternoon. Ultimately the appellant was able to get that copy at 5 P.M. on 10th Jan. 1986. The earliest bus available to the appellant to leave Pune for going to the place where the Returning Officer was taking up the work of scrutiny of nomination papers was to start at 9 A.M. on 11th Jan. 1986. The appellant reached the office of the Returning Officer at about I p. m. in the afternoon on 11/01/1986, i.e., the date fixed for scrutiny of the nomination papers and produced the second certified copy obtained by him before the Returning Officer. The second certified copy was also in the Marathi language. The English translation of the material part of the second certified copy reads thus : (See below for IInd certified copy) "247. Shivajinagar Assembly Constituency List of Voters - 1984 Name of village: Hutatma Rajguru Health Camp. Taluka - Pune CityDistt. Pune Mahanagar PalikaPart No./Polling Centre Ward No. 9No. 47 JUDGEMENT_55_SUPP1_1989Html2.htm Latest date of publication 29/01/1986 Sd/- Electoral Registration Officer 247; Shivaji Nagar, Assembly Constituency, Pune Copying Applied on 10/01/1986 Paper Ready on 10/01/1986 delivered on 10/01/1986 10 - Copied by Kale. 2-10 TRUE COPY Sd/- Tchsildar-Poona City Assistant Electoral Registration Officer Shivaji Nagar Assembly Constituency Tal. Poona City. Sd/- 10/01/1986 It is stated by the Returning Officer that before the appellant appeared before him on 11th Jan. 1986 he had already passed an order rejecting the nomination paper of the appellant on the ground of non-compliance with the provisions of sub-sec. (5) of S. 33 and sub-sec. (7) of S. 36 of the 1951 Act. The English translation of the order (Which was in the Marathi language) passed by the Returning Officer rejecting the nomination paper of the appellant is as follows: "I have examined this nomination paper in accordance with S. 36 of the Representation of the People Act, 1951 and my decision is as follows:- In his nomination paper the candidate Shri Jagannath Ramchandra Nunekar. resident of Pune has mentioned his name as being at Sl. No. 16 in part No. 47 of the electoral roll for the 247 Shivajinagar Legislative Assembly Constituency. As evidence thereof he has submitted a certified relevant extract from the said electoral roll published on the date 31-1-1984. Under the provisions of Ss. 33(5) and 36(7) of the Representation of the People Act, 1951 it was essential for him to submit either the latest electoral roll (in force as on the date 31-1-85) or the necessary part of the roll or certified relevant extract thereof. Shri Nunekar was given instructions to that effect at the time of filing of the nomination paper and requested to comply with the requirements regarding the said legal documents by the time of scrutiny of the nomination paper, that is to say by 11 O'Clock on the date 11-1-1986. However the said requirement was not complied with even till the time of the scrutiny Alas over, nor did he remain present at the time of the scrutiny. The said nomination paper is therefore rejected. Sd/- Returning Officer 263, Jaoli, Vidhan Sabha Constituency. (Medha) Date: 11-1-1986" (This translation is done by the Chief Translator of the High Court). Aggrieved by the order rejecting his nomination paper the appellant requested the Returning Officer to review his order since he had produced another certified copy in which the latest date of publication had been shown as 29-1-1985. The Returning Officer declined to review his order stating that he had no power of review and thereafter published the final list of candidates containing the names of four candidates who had according to him filed valid nomination papers. The appellant's name was not included in the said final list as his nomination paper had been rejected Thereafter the election was held and respondent No. 1 was declared elected. After the declaration of the result the appellant filed Election Petition No. I of 1986 on the file of the High Court of Bombay calling in question the election of the .respondent No.1, alleging that the Returning Officer had improperly rejected the nomination paper filed by him and therefore the election of respondent No. I was liable to be set aside on the ground mentioned in S. 100(l)(c) of the 1951 Act. Respondents I to 4 in the election petition were the four other candidates who had filed nomination papers at the election and respondent No. 5 was the Returning Officer. Respondents I and 5 contested the election petition by filing separate written statements. They pleaded inter alia that since the certified copy of the relevant entry of the electoral roll of the Shivajinagar constituency in which the name of the appellant appeared was not one prepared from the current electoral roll the Returning Officer had rightly rejected the nomination paper of the appellant and there was no ground to interfere with the election of respondent No. 1. At the conclusion of the trial, the learned Judge of the High Court who tried the election petition dismissed the election petition filed by the appellant holding that he had not complied with S. 33(5) of the 1951 Act as the certified copy produced by him on the 9th Jan. 1986 was not a certified copy of the electoral roll in force at the time of the election, the certified copy produced on the 1lth Jan. 1986 had been produced after the order of rejection of nomination paper had been passed by the Returning Officer and the Returning Officer had no power to review. Aggrieved by the judgment of the learned Judge of the High Court the appellant has filed this appeal under S. 116A of the 1951 Act.
(3.) THERE is no dispute that a candidate whose name is found in the electoral roll of a constituency other than the constituency from which he is seeking election should produce a certified copy of the electoral roll of the constituency in force in which his name appears or the relevant part thereof or a certified copy of the relevant entry in such electoral roll before the Returnig Officer either along with the nomination paper or at the time of the scrutiny. That is the mandatory requirement of sub-sec. (5) of S. 33 of the 1951 Act. Sub-sec. (2) of S. 36 of the 1951 Act provides that the Returning Officer shall examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the grounds mentioned therein. One of the grounds mentioned in that sub-section is that there has been a failure to comply with any of the provisions of S. 33 which includes the provisions contained in sub-sec. (5) thereof. Sub-sec. (7) of S. 36 provides that for the purpose of that section, a certified copy of an entry in the electoral roll for the time being in force of constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in S. 16 of the Representation of the People Act, 1950 (hereinafter referred to as 'the 1950 Act'). Sections 14 to 25A of the 1950 Act, which are in Part III thereof, provide for the preparation, revision and maintenance of electoral rolls for assembly constituencies. Section 15 of the 1950 Act provides that for every constituency there shall be an electoral roll which shall be prepared in accordance with the provisions of the 1950 Act under the superintendence, direction and control of the Election Commission. A person shall be disqualified for registration in an electoral roll as provided by S. 16 of the 1950 Act if he is not a citizen of India, or is of unsound mind and stands so declared by a competent court or 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. The name of any person who becomes so disqualified after registration is liable to be forthwith struck off the electoral roll in which it is included If the name of any person is struck off the electoral roll of a constituency by reason of a disqualification under Cl (c) of sub-sec. (1) of S. 16 of the 1950 Act it 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 Subject to the provisions of Part III of the 1950 Act every person who is not less than 21 years of age on the qualifying date and is ordinarily resident in a constituency is entitled to be registered in the electoral roll for that constituency. The expression ,qualifying date' is defined in Cl. ( b) of S. 14 of the 1950 Act as the first day of Januray of the year in which the electoral roll is prepared or revised Sections 21 to 23 of the 1950 Act provide for the preparation and revision of electoral rolls, correction of entries in electoral rolls and inclusion of names in electoral rolls. The electoral roll for each constituency has to 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 the 1950 Act. The said electoral roll shall, unless otherwise directed by the Election Commission for reasons to be recorded in writing, be revised in the prescribed manner by reference to the qualifying date before each general election to the House of People or to the Legislative Assembly of a State; and before each bye-election to fill a casual vacancy in a seat allotted to the constituency; and shall be revised in any year in the prescribed manner by reference to the qualifying date if such revision has been directed by the Election Commission, provided that if the electoral roll is not revised as aforesaid, the validity or continued operation of the said electoral roll shall not thereby be affected. The Election Commission may at any time, for reasons to be recorded, direct a special revision of the electoral roll for any constituency or part of a constituency in such manner as it may think fit. These provisions relating to the preparation and revision of electoral rolls are contained in S. 21 of the 1950 Act. It is not necessary to refer in detail for purposes of this case to S. 22 of the 1950 Act which deals with the correction of entries in electoral rolls and the provisions contained in S. 23 of the 1950 Act regarding the procedure to be followed if any person whose. name is not included in the electoral roll of a constituency wishes to get his name included in it. What are, however, to be emphasised at this stage are S. 21 of the 1950 Act which provides that on the preparation of an electoral roll in the prescribed manner it will come into force immediately upon its final publication in accordance with the rules made under the 1950 Act (vide sub-sec. (1) of S. 21 of the 1950 Act) and the proviso to sub-sec. (2) of S. 21 of the 1950 Act which provides that if the electoral roll is not revised as provided in Cis. (a) and (b) of sub-sec. (2) of S. 21 of the 1950 Act the validity or continued operation of the said electoral roll shall not thereby be affected. In order to implement the provisions contained in Part III of the 1950 Act relating to the preparation and revision of electoral rolls rules have been made under the 1950 Act and they are the Registration of Electors Rules, 1960 (hereinafter referred to as 'the Rules'). The rules prescribing the procedure for preparation and revision of electoral rolls are contained in Part II of the Rules. The electoral registration officer of a constituency which expression includes an assistant electoral registration officer thereof also is charged with the duties of the preparation, revision and maintenance of an electoral roll. After the electoral roll is prepared under the Rules and published it can be amended in accordance with the decisions of the electoral registration officer under Rr. 18, 20, 21 and 21 A of the Rules. Rule 22 of the Rules provides thus : 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. (3) Where the roll (hereinafter in this sub-rule referred to as the basic roll), together with the list of amendments, becomes the electoral roll for a constituency under sub-rule (2), the registration office may, for the convenience of all concerned, integrate, subject to any general or special directions issued by the Election Commission in this behalf, the list into the basic roll by including the names of electors in the list together with all particulars relating to such electors in the relevant parts of the basic roll itself, so however that no change shall be made in the process of such integration in the name of any elector or in any particulars relating to any elelctor as given in the list of amendments." In the present case there was a basic roll prepared prior to 31-1-1984 in the Shivaji Nagar Assembly Constituency. The name of the appellant was entered at Sl No. 16 of a supplement which was published on 31-1-84. It appears there were two more supplements issued subsequently, i.e., one on 27-11-1984 and the other on 29-1-1985. The basic roll and the supplement in which the name of the appellant was found was again published on 29-1-1985. The basic roll and supplements together constituted one integrated electoral roll. The certified copy, which was furnished to the appellant on 8-1-1986, i.e., one day before the date or. which he filed his nomination paper was a copy made from the said integrated electoral roll. The said certified copy was marked as, Ex. B-1 in the case and the certified copy which was furnished to him on 10-1-1986 was marked as Ex. D. The Electoral Registration Officer who was responsible for preparation and maintenance of the rolls, as already stated, was the Tahsildar, Pune. He was examined by the appellant as one of his witnesses in the case. We feel that it is necessary to refer to some portions of the deposition of the Tahsildar, i.e. the Electoral Registration Officer. He stated: "The petitioner was furnished the extract Exh. B-1. Exh. B-1 is the extract from the electoral list as was current on the date this extract was given to him. I see Exh. D which is the certified copy of extract furnished to the petitioner on 10- 1- 1986. These two extracts are identical except that the final publication date as stated in Exh. B-1 is 31-1-84 and 19-1-85 in Exh. D. In 1985 the entire list of voters was not again got printed ... The date of final publication (29-1-85) as finding place in Exh. D is brought to my notice. On 29-1-85 it was the supplement along with the original list that was published. Three supplements were published on the following dates first on 31-1-84 the second on 27-11-84 and the third on 29-1-1985. Exh. B-1 was furnished to the petitioner by me on 8-1-1986 after taking into consideration the publication of these supplements also. So also Exh. D. Cross-examination by R-3 and 4 declined. Cross-examination by Shri Vyas for R. 5 : It is correct that the voters list was finally published on 29-1-85, 1 am referring to Shivaji Nagar Constituency voters' list. It is not true that on the extract Exh. B-1 I put the date of final publication on 31-1-84, because I did not take into consideration the later publications of 27-11-84 and 29-1-85 ... " (Emphasis added) ;