HBODE - (1.) THE Judgment of the court was delivered by
(2.) . This appeal under .Section 116-A of the Representation of People Act, 1931 (to be shortly referred to hereinafter as the Act) is directed against the decision of the High court of Punjab and Haryana in Election Petition No. 1 of 1968 on its file. In that election petition, Kundan Singh, the 1st respondent to this appeal challenged the validity of the returning officer's declarati(m that the appellant has been duly elected from the Hoshiarpur Local Authorities Constituency to the Punjab Legislative council in the election held in April, 1968. The High court came to the conclusion that some of the votes polled in that election were invalid votes and if the valid votes alone are taken into consideration, as it should have been, then the 1st respondent is entitled to be declared elected. It accordingly set aside the declaration made in favour of the appellant and declared the 1st respondent as having been duly elected. . We may now briefly state the material facts. In March 1968, the Hoshiarpur Local Authorities Constituency was called upon to elect one member to the Punjab Legislative council. The election calendar was as follows: JUDGEMENT_452_2_1969Html1.htm In that election, as many as five candidates contested. They are the appellant and the respondents herein. On 8/04/1968, the returning officer after counting the votes cast declared the appellant to be the successful candidate as he had secured one vote more than the 1st respondent. The 1st respondent challenged that declaration in the aforementioned election petition on various grounds of which, at present, we are only concerned with one, viz. that the vote ofHari Singh should have been held to be a void vote as his name was included in the electoral roll on 5/04/1968, just two days before the date of polling. In his turn the appellant filed a recriminatory petition contendirf inter alia that the vote of Tarsern Singh was void as by the time the pollingtook place, he had become a government servant and the votes of two other persons namely Harjinder Singh and Balwant Singh were void as theu names 454 were included in the electoral roll after the last date for filing nominations for the election. Other grounds taken in the recriminatory petition are not relevant for our present purpose. They have not been pressed before us. . The election petition came up for trial before Mahajan, J. The learned Judge submitted the following question to a full bench for decision : "Whether allegation in Para 4(d) pertaining to the vote of Hari Singh is correct and the vote was void and was polled in favour of Respondent No. 1 in violation of the rules and has materially affected the result of the election of Respondent No. 1." The full bench by majority came to the conclusion that the vote of Hari Singh was void as his name was included in the electoral roll of the constituency after the last date for making nominations for the election in that constituency. Thereafter the case was sent back to Mahajan, ., for deciding the issues left undecided. On the basis of the opinion expressed by the full bench, the learned Judge came to the conclusion that the votes of Hari Singh, Harjinder Singh and Balwam Singh were void votes. Consequently he recounted the votes validly cast and came to the conclusion that the 1st respondent had been duly elected. He gave a declaration to that effect.
(3.) . As seen earlier, the main contention in this appeal relates to the true effect of Ss. (3) of Section 23 of the Representation of People Act, 1950 (to be hereinafter referred to as the 1950 Act") which prohibits the deletion of any entry or inclusion of any name in the electoral roll of a constituency after the last date for making nominations for an election in that constituency and before the completion of that election. We have considered the scope of that provision in Baidynath Panjiar v. Sitaram Mahto and Others in which we have delivered judgment just now. In view of that decision, the view taken by the majority of the full bench must be held to be correct. . Evidently under an erroneous impression that Harjinder Singh and Balwant Singh had voted against him, the appellant had contended in his recriminatory petition that their votes were invalid. But on scrutiny it was found that one of them had given his first preference to him. Now it is contended on his behalf that as the 1st respondent had not challenged the validity of those votes, the trial court could not have excluded from consideration the vote cast in his favour by one of those persons. This is an untenable contention. The votes of Harjinder Singh and Balwant Singh have been rejected on the ground that their names were included in the electoral roll in defiance of the mandate given under Section 23(3) of the 1950 Act. What applies to Hari Singh equally applies to Harjinder Singh and Balwant Singh. The fact that the 1st respondent did not challenge the validity of those votes is immaterial in the circumstances of this case. The election petition and the recriminatory petition were parts of one enquiry. As the validity of these three votes had come up for consideration and as it has been held that those votes are void votes, it necessarily follows that those votes must be excluded from consideration in determining the result of the election. Another contention urged by Shri Hardev Singh is that only the votes of those electors who had applied for inclusion of their names in the electoral roll after the period mentioned in Section 23(3) of the 1950 Act can be 455 held to be void ; as the person who cast his vote in favour of the appellant had applied for inclusion of his name, some days before the last date for making nominations, the inclusion of his name in the roll after that date will not make his vote void. In support of his contention, he placed reliance on the decision of the Patna High court in Ram Swaroop Prasad Yadav v. Jagat Kiskore Prasad Narain Singh. The ratio of that decision has no application to the facts of the present case. That decision was rendered before Ss. (3) of Section 23 of the 1950 Act was incorporated into the 1951 Act. The mandate of that provision is plain and unambiguous. It prohibits inclusion of any name in the electoral roll after the prescribed date whether the application for inclusion was made before or after that date.;