1970 (10) TMI 80

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....nstituency, Each of them had acted as an election agent of respondent No. 2. Petitioner No. 1 Ghattarki was his election agent from February 10, 1967 till the last date of the election and petitioner No. 2 Belagali acted as an election agent from January 19, 1967 to February 4, 1967. The trial of the petition commenced on December 11, 1967 and after certain witnesses had been examined on February 1, 1967 petitioner No. 1, Ghattarki, made an application praying for permission to withdraw from the petition "for all purposes". Petitioner No. 2 objected to his withdrawal. The learned judge dismissed the application of petitioner No. 1 on the ground that s. 110(1) of the Representation of the People Act, 1951, hereinafter called the "Act", dil not permit withdrawal by one petitioner without the consent of his co- petitioner. It has, however, been noted by the learned judge that both the petitioners continued to be represented by one counsel Shri B. S. Patil. It may be mentioned at this stage that the election petition is a very long document and that the evidence which has been produced by the parties is also voluminuous. The judgment of the learned judge consists of 227 printed page....

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....e the validity or legality of an entry in an Electoral Roll we shall have to look at the relevant provisions of the Act. The Representation of the People Act 1950, to be called the "Act of 1950" and the Constitution. Part 11 of the Act deals with the qualifications and disqualifications for Membership of Parliament ,and State Legislature. Section 5(c) is as follows : "A person shall not be qualified to be chosen to fill a seat in the legislative assembly of a State unless. (a)............................ (b)............................ (c) in the case of any other seat he is an elector for any Assembly constituency in that State." The word "elector" is defined by s. 2 (1 ) (e) to mean in relation to a constituency a person whose name is entered in the Electoral Roll of that Constituency for the time being in force and who is not subject to any of the disqualifications mentioned in s. 16 of the Act of 1950. Chapter III of the Act contains disqualifications for Membership of Parliament and State Legislatures. According to s. 7(b) "disqualified" means disqualified for being chosen as and for being a Member of either House of Parliament or of the ....

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....can be filed to the Chief Electoral Officer from any order of the Electoral Registration Officer under s. 22 or s. 23. Under s. 30 no civil court shall have jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled for registration in an Electoral Roll for a constituency. There are elaborate rules which have been promulgated for preparation and revision of the Electoral Rolls, namely, Electors' Rules 1960. It may be noted that the conditions about being ordinarily resident in a constituency for the purpose of registration are meant for that purpose alone and have nothing to do with the disqualifications for registration which are prescribed by s. 16 of the Act of 1950 which alone are relevant to the definition of an "elector" as given in s. 2 (1) (e) of the Act. 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. Article 173 of the Constitution r....

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....ondent No. 1 was ordinarily resident in Jamkhandi constituency during the material period and was entitled to be registered in the Electoral Roll could not be the subject matter of enquiry except in accordance with the provisions of the Act of 1950. The grounds on which the election can be declared to be void under the Act are set out in s. 100 of the Act. Clause (d) is "that the result of the election, in so far as it concerns a returned candidate, has been materially affected-(i)............... (ii)............ (iii)...............(iv) by any non-compliance with the pro- visions of the Constitution or of this Act or of any rules or orders made under this Act." Nothing could be clearer than the ambit of this provision. 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 s. 16. The learned trial judge does not appear to have fully and properly appreciated the correct ratio and true determination of the points involved in Durga Shanker Mehta's(1) case. The distinction is too obvious to bear repetition. It seems that a Bench ....