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ELECTION COMMISSION OF INDIA

—————

NOTIFICATION

Nirvachan Sadan, Ashoka Road, New Delhi -110 001 Dated : 03^rd September, 2014/

Bhadrapada 12, 1936 (Saka)

No. 82/BR-LC/1/2008/2014 (A)–In pursuance of Selection 106 of the

Representation of the People Act, 1951 (43 of 1951), the Election Commission of India

herby publishes the order dated 15^th May, 2009, of the High Court of Judicature at Patna in

Election Petition No. 1 of 2008 filed by Sh. Janardan Prasad Singh calling in question the

election of Sh. Nawal Kishore Yadav as a member of the Legislative Council of Bihar from

Patna Teachers’ constituency.

By order,

K. AJAY KUMAR,

Principal Secretary.

बहार गजट (असाधारण), 22

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IN THE HIGH COURT OF JUDICATURE AT PATNA

E.P. No-1 of 2008

*****

Janardan Prasad Singh, son of Late Ram Lakhan Singh, Resident of Village-Rupaspur, P.S.

Chandi, District- Nalanda at Biharsharif.

……

……. Election petitioner

Versus

Sri Nawal Kishore Yadav, son of Hari Rai, Resident of Mohalla-Pathar Gali, P.S. Shastri

Nagar, District- Patna.

…….

……. Respondent

For the Petitioner

Mr. S.B.K. Mangalam, Advocate

Mr. Sanjay Kumar, Advocate

Mr. Birendra Kumar, Advocate

For the Respondent

Mr. S.N.P. Sharma, Senior Advocate

Mr. Amrendra Kumar, Advocate

-------------

16.

15.5.2009.

Election of sola returned respondent, namely, Nawal Kishore

Yadav, for Bihar Legislative Council pertaining to Patna Teachers

Constituency for which election was held on 28.4.2008 is subject matter

of challenge in the present election petition filed under Section 80 and

80A of the Representation of People Act, 1951(hereinafter to be

referred to as ‘the Act’), The result was declared on 30.4.2008 where the

petitioner is supposed to have got 2115 votes and the returned candidate

2823 votes. The difference between the petitioner and the returned

candidate was of 708 votes.

Many statements have been made in the election petition and

in support there of certain documents have been annexed as annexures

but the same have a limited reflection on the election petition as a whole

because when the list of issues came to be filed by the petitioner as well

as the respondent, a preliminary objection was sought to be raised by the

respondent that the election petition as framed is not maintainable and

the Election petition was fit to be dismissed summarily under Section 86

(i) of the Act, for non-compliance of mandatory provisions of Section

81,82 and 117 read with Section 100 of the Act. The Court decided,

therefore, to examine this legal aspect of the matter after giving an

opportunity to both the sides. For true appreciation, therefore, it is

desirable the all the proposed issues and supplementary proposed issues

filed by the petitioner be reproduced here in below:-

(I)

Whether, the guidelines/instruction issued by the

Election Commission of India in exercise of Power

under Article 324 of the Constitution for the

preparation of electoral roll & for and the conduct of

Elections has the force of law and non compliance

there of would render the election of the Sole

respondent void under the provisions of Section 100

(1)(d)(iv) of the R.P. Act, 1951.

(II)

Whether for the non compliance of the guide

lines/instructions issued by the Election Commission

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of India in connection with impugned election, the

election of the sole Respondent is fit to be declared

void under Section 100(1)(d)(iv) of the R.P. Act 1951.

(III)

Whether for the Registration of unqualified and

ineligible persons as electors by the Electoral

Registration Officer in the Voter-list prepared for

conducting the impugned election contrary to the

guide

lines/instruction

issued

the

Election

Commission of India in exercise of Power under

Article 324 of the Constitution and votes cast by those

unqualified voters, the election of the sole Respondent

of fit to be declared void under Section 100(1)(d)(iii)

of the R.P. Act.

(IV)

Whether the votes cast by unqualified voters has

materially affected the result of the election and thus

the election of the sole Respondent is fit to be declared

void under the provisions of Section 100(1)(d)(iii) of

the R. P. Act.

Supplementary Issues :

(I)

Whether there is any scope for the Electoral

Registration Officer to entertain any fresh application

from for Registration of voters in the voter list after

expiry of the last of submission of such form for

Registration and after the publication the publication

of draft voter list for the impugned election and if so

the election of the sole Respondent is fit to be ser as

ide under Section 100(1)(d)(iv) of the R.P.Act 1951.

(II)

Whether, the election of the sole Respondent from

Patna Teachers constituency is fit to be declared void

under the provisions of Section 100(1)(d)(iv) of the

R.P.Act 1951 on the Ground that the voter list for the

said election was prepared by the Election Registration

Officer dehors the Provisions contained in Section

27(3) (6), 27(5)(b) and 27 (6) of the R.P.Act 1950 and

Article 171 (3) (c) of the Constitution of India and if

has materially affected the result of election.

(III)

Whether failure on the part of the Election

Commission of India to entertain the complaint against

the inherent irregularities and illegalities in preparation

of voter list for the election in question despite

direction of this Hon’ble High Court is sufficient to

conclude that the Election Commission of India has

failed to discharge its statutory duty to conduct a free

and fair election in Patna Teachers constituency and

the election of the sole Respondent is fit to be declared

void on this ground alone under the provision of

Section 100(1)(d)(iv) of the R.P.Act 1951.

(IV)

Whether the election of the sole Respondent is fit to be

declared void under the provision of Section

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100(i)(d)(iii) of the Representation of Peoples Act

1951 for having been so declared elected by the votes

of unqualified voters who had no right to vote in the

said election.

(V)

Whether the election of the sole respondent is

otherwise also bad in law and thus fit to be declared

void by this Hon’ble Court.

It is also necessary, therefore, to take note of the

proposed issues on behalf of the sole respondent, which is also

reproduced here in below:-

(I)

Whether

the

election

petition

framed

maintainable?

(II)

Whether the election petition is fit to be dismissed

summarily under Section 86(i) of the Representation

of Peoples Act, 1951 for non-compliance of mandatory

provisions of Sections 81, 82 and 117 of the said Act

read with Section 100 of the Act?

(III)

Whether the election petition is fit to be dismissed

summarily under Order VII, Rule 11 of the Code of

arises out of vague pleadings of general nature and not

containing material facts and material particulars?

(IV)

Whether the allegations as contained in paragraphs I to

67 of the election petition are fit to be deleted from the

pleadings of election petition as the allegations of

commission of illegalities and irregularities in

preparation of voter list are justifiable in an election

petition being beyond the ambit and scope of Section

81 and 100 of the Representation of Peoples Act, 1951?

(V)

Whether the allegations as contained in paragraphs 68

to 70 of election petition are fit to be struck off under

Order VI, Rule 16 of the Code of civil procedure being

not containing an adequate statement of material facts

and full particulars and also not containing the

prescribed affidavit in Form- 25 as required under the

mandatory provision of Section 83 of R.P.Act 1951

read with Rule 94-A of Conduct of Election Rules,

1961? If so, election petition is fit to be dismissed

under order VII, Rule 11(a) C.P.Code for not

disclosing the completed cause of action?

(VI)

Whether election petition is not an election petition in

the eye of law? If so, whether election petition is fit to

be dismissed summarily to prevent the abuse of

process of law?

The Court has been taken through the election petition, the material brought

thereto. The contention of learned senior counsel appearing for the respondent

thereafter is that if the election petition is read as a whole then the sum essence of

the same is that the election, as such has been called in question, on the ground that

the election has been conducted and votes polled on the basis of an electoral roll in

which many voters have been enrolled in flagrant violation of the mandatory

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provisions of law and the rules which relate to the provisions of Representation of

Peoples Act, 1950 and the Registration of Electors Rules, 1960 The allegations

primarily relate to the irregularities and illegalities in preparation of the election rolls

allowing the voters to get on to the rolls after cut off dates for which the official

respondents of the Election Commission have been charged with either connivance

of failure in this regard. Contention of the respondent, therefore is that the validity of

the electoral rolls connot be challenged by filing an election petition. The validity of

an election has to be tested within the ambit and the no vision of Section 81 and 100

of the Representation of Peoples Act, 1951. Since the allegations and the issues

proposed on behalf of the petitioner are beyond the scope of Section 81 and Section

100, therefore, there is no occasion for his Court to maintain the election petition or

adjudicate upon the validity of the election or the result thereof of the returned

candidate.

Section 80 of the Act provides that no election shall be called in question

except by an election petition presented in accordance with the provisions of the part.

This obviously refers to Part VI which is under the heading “Disputes Regarding

Election”. Section 80A of the Act gives the High Court the jurisdiction to try such an

election petition. Section 81 then provides that an election petition calling in

question any election may be presented on one or more of the grounds specified in

sub-section (1) of section 100 and section 101 by any candidate at such election or

any elector. The explanation of the said section is to the effect that “elector” means a

person who was entitled to vote at the election to which the election petition relates.

Section 83(1)(a) provides that the election petition shall contain a concise statement

of the material facts on which the petitioner relies. Section 86 provided that the High

Court shall dismiss an election petition which does not comply with the provisions

of Section 81 or Section 82 or section 117. The grounds for declaring the election to

be void are mentioned in section 100 and the grounds for which a candidate other

than the retuned candidate may be declared to have been elected are mentioned in

section 101 of the Act provides:

“100 Grounds for declaring election to be void.

(1)

Subject to the provisions of sub-section (2) if the High Court

is of opinion-

(a)

That on the date of his election a returned candidate was not

qualified, or was disqualified, to be chosen to fill the seat

under the constitution or this Act of the Government of Union

Territories Act, 1963 (20 of 1963); or

(b)

That any corrupt practice has been committed by a retried

candidate or his election agent or by any other person with the

consent of a returned candidate or his election agent; or

(c)

that any nomination has been improperly rejected; or

(d)

that the result of the election, in so far as it concerns a

returned candidate, has been materially affected-

(i)

by the improper acceptance or any nomination, or

(ii)

by any corrupt practice committed in the interest of the

returned candidate by an agent other than his election

agent, or

(iii)

by the improper reception, refusal or rejection of any

vote or the reception of any vote which is void, or

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(iv)

by any non-compliance with the provisions of the

Constitution of of this Act or of any rules or orders

made under this Act,

the High court shall declare the election of the returned

candidate to be void.

Learned counsel for the election petitioner fairly conceded in course of

argument that the election petitioner seeks quashing of the election on the grounds

mentioned in section 100(1)(d)(iv). In other words his contention is that the election

of the returned candidate namely the respondent has been materially affected by non-

compliance with the provisions of the Constitution or of this Act or of any rules or

orders made under this Act. The question for consideration, therefore, is whether on

the averments made in the election petitions the grounds referred to in section

100(1)(d)(IV) is attracted or not.

It was argued on behalf of the respondent that the Act or any rules or orders

made under the Act refers to the provisions of the Representation of People Act 1951

and not to the Representation of People Act 1950 or the rule or orders made under

the said Act. Section 1 of the Act under caption “short title” mentions that this Act

may be called as the Representation of the People Act 1951. There is no dispute

between the parties that the provisions for preparation of electoral roll and the

manner of filling seats in the Council of the State among other things are provided in

the Representation of the People Act 1950, part IV of the Act of 1950 deals with

electoral rolls for Council Constituencies. Under section 27(2)(e) of the 1950 Act the

provisions of Sections 15, 16, 18, 22 and 23 shall apply in relation to local

authorities, constituencies, constituencies as they apply in relation to assembly

constituencies. Sections 22 and 23 of the said Act provides for correction of entires

in electoral rolls and inclusion of names in electoral rolls for the purpose of assembly

Constituencies and section 23(3) provides that no amendment, transposition or

deletion of any entry shall be made under section 22 and no direction for the

inclusion of a name in the electoral roll of a constituency shall be given under this

section after the last date for making nominations for an election in that constituency

or in the parliamentary constituency within which that constituencies comprised and

before the completion of that election. Section 30 of the Act excludes the jurisdiction

of the civil courts to entertain or adjudicate upon any question whether any person is

or is not entitled to be registered in an electoral roll for a constituency. The

provisions of section 20 needs to be noticed for it provides for correction of entries

in electoral rolls. The Electoral Registration Officer for a constituency is authorized

to amend, transpose or delete an entry in the electoral roll of the constituency on any

of the grounds mentioned under clauses (a), (b) and (c) of the said section and he can

exercise such power on either on his own motion or on an application made to him.

Such power of the Electoral Registration Officer is, however, to be exercised subject

to the general or special direction as may be given by the Election Commission.

To cut a long story short the election of the respondent has not been

challenged on the ground that he suffered from any disqualification for contesting

the election provided either under the Constitution or the Act or 1950 or 1951 or

under any rules framed under the Act. The only ground on which the election is

challenged is that names of certain teachers were included in the electoral roll

illegally and without jurisdiction when they were not otherwise fit to be included.

The argument advanced is that for this purpose the Act of 1950 itself made the

provision for making the necessary correction and the Act of 1950 is a self contained

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Act. The illegality and irregularity committed in the preparation of the electoral roll

was a matter to be disposed of within the provisions of the Act of -1950 and any

such illegalities or irregularities referred to above could not be a valid ground for

setting aside the election of the returned candidate under section 100 of the Act of

1951.

In P.R. Belagali vs. B.D. Jatti (A.I.R. 1971 S.C.1347) the Supreme Court

held that section 100(1) (d) of the Act 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 any rules made thereunder with the exception of

section 16 of the Act of 1950. In an election petition the correctness of the Electoral

Roll cannot be gone into. The court was further pleased to observe that the entire

scheme of the Act of 1950 and the complitude 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 the question of violation of the provisions of Constitution is involved.

It may be mentioned that under section 16 of the Act of 1950 a person is disqualified

for being registered in an electoral roll if he (a) is not a citizen of India; or (b) 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. The averments made in

different paragraphs of the present election petition do not contain any allegation

with regard to violation of the provisions of section 16 of the 1950 Act.

To reinforce the arguments learned senior counsel appearing for the

respondent relies on a recent enough decision of the Hon’ble Supreme Court which

is the case of Shyamdeo Pd. Singh v. Nawal Kishore Yadad, (2000) 8 SCC 46. It

is contended that a bare reading of the above decision of Shyamdeo Pd. Singh

(supra) and the ratio laid down therein fully covers the submissions which have been

made at the Bar in opposition to the maintainability of the present election petition.

There are identical or similar issues which came to be decided by the Hon’ble

Supreme Court on appeal from the decision of the Patna High Court. According to

the learned counsel appearing for the respondent the judgment is a complete answer

to the election petition filed on behalf of the petitioner.

Learned counsel appearing for the petitioner, however, submits that Section

100(1)(d)(iv) of the Act includes and contemplate non-compliance of any part of the

Act or rules as a ground for challenge and in support thereof he relies upon

paragraph 21 of a decision rendered in the case of Lakshmi Charan Sen v. A.K.M.

Hassan Uzzaman, A.I.R. 1985 S.C. 1233, which is reproduced herein below:-

“One of the questions which was debated before us and to which we

must not turn, is whether the directions given by the Election

Commission to the Chief Electoral Officers have the force of law

under the Acts of 1950 and 1951. There is no provision in either of

these acts which would justify the proposition that the directions

given by the Election Commission have the force of law. Election

Law are self-contained Codes. One must look to them for identifying

the rights and obligations of the parties, whether the absence of a

provision to that effect, it would not be correct to equate with law, the

directions given by the Election Commission to the Chief Electoral

Officers. The Election Commission is, of course, entitled to act ex

debito justitiae, in the sense that, it can take steps be taken over and

बहार गजट (असाधारण), 22

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above those which it is under and obligation to take under the law. It

is, therefore, entitled to issue directions to the Chief Electoral

Officers. Such directions are binding upon the latter but, their

violation cannot create rights and obligations unknown to the Election

Law. To take a simple example, if the Election Commission issues a

directive to a Chief Electoral Officer to invite leaders of political

parties for a meeting to consider their grievances pertaining to the

electoral roll, the failure to hold such a meeting cannot be equated

with the failure to comply with the provision of a law. Leaders of

political parties who were asked to be invited by the Election

Commission cannot challenge the process of election on the ground

that the directive issued by the Election Commission was violated by

the Chief Electoral Officers. The question is not whether the

directions issued by the Election Commission have to be carried out

by the Chief Electoral Officers and are binding upon them. The plain

answer is that such directions ought to be carried out. The question is

whether the failure on the part of the Chief Electoral Officer to

comply with the direction ought to be carried out, The question is

whether, the failure on the part of the Chief Electoral Officer to

comply with the directions issued by the Election Commission

furnishes any cause of action to any other person like a voter or a

candidate, to complain of it. We are of the opinion that the directions

issued by the Election Commission though binding upon the Chief

Electoral Officers cannot be treated as if they are law, the violation of

which could result in the invalidation of the election, either generally,

of specifically in the case of individual in the instant case the Chief

Electoral Officer carried our faithfully the directions issued by the

Election Commission But, even if he had not, he could not be accused

of disobeying a law.”

He also contends that since Article 329(b) of the Constitution of India

is also a bar, to challenge any election except in the Manner provide under

the 1951 Act then Section 80 has to be read with Section 329(b) and the same

has to be judged within the ambit of Section 100(1)(d)(iv).

Learned counsel for the petitioner relies on a few other decisions in

the regard but the same need not the dealt with in light of the law having

been settled by the Hon’ble Supreme Court in the case of Shyamdeo Pd.

Singh (supra). Since no contrary or conflicting opinion has emerged

thereafter there is no scope for the High Court to get into any kind of

academic discussion on interpretation to be given on the submissions made

on behalf of the petitioner.

The law being what it is, and id view of the ratio laid down in the

case Shyamdeo Pd. Singh (supra) the preliminary objection filed on behalf

of the sole respondent does merit consideration. The preliminary objection

petition is allowed. The contents of para 1 to 68 and 71 to 76 of the election

petition with annexure 1 to 18 are struck off. Since no friable issue under

Section 81 read with Section 100 of the Act has been made out, the election

petition cannot be maintained or adjudicated upon and the same is summarily

dismissed under Section 86 of the Act read with Order XVII Rule 11 of the

Code of Civil Procedure.

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The Cost is quantified at Rs. 5,000/-

Before parting, however, the Court is constrained to record that the

Election commission of India has been made the repository of all powers to

get a free and fain election conducted, which reflects the will of the majority,

in the candidate returned, by the voters voting in an election, But before the

same can happen the Election Commission has a duty to maintain the purity

of the electoral rolls in terms of the provisions of the Representation of

People Act, 1950 as well as the Registration of Election Rules, 1960. This

Court cannot certify that all has been well in preparation of the electoral rolls

based on which the election in question came to be held. Since the exercise

of power under Section 80 and 80A of The Representation of People Act,

1951 does not allow this Court to examine this aspect of the matter the duty

is being cast upon the Election Commission.

The Court directs that a copy of the decision must be communicated

to the Chief Electoral Officer, Bihar as well as the Election Commission of

India to enable them to ensure that they take all corrective measures in

preparation of electoral rolls before any future election in this regard are held

in the State of Bihar.

(Ajay Kumar Tripathi, J.)

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ELECTION COMMISSION OF INDIA

——————

NOTIFICATION

Nirvachan Sadan, Ashoka Road, New Delhi-110001 Dated : 03^rd September, 2014/

Bhadrapada 12, 1936 (Saka)

No. 82/Br-LC/1/2008/2014(B)—In pursuance of Section 116C(2) of the

Representation of the People Act, 1951 (43 of 1951), the Election Commission of India

hereby publishes the order, dated 19^th September, 2013, of the Supreme Court of India in

Civil Appeal No.-4372 of 2009 in Election Petition No. 1 of 2008 filed by Sh. Janardan

Prasad Singh calling in question the election of Sh. Nawal Kishore Yadav as a member of

the Legislative Council of Bihar from Patna Teachers’ constituency.

By Order,

K. AJAYA KUMAR,

Principal Secretary.

बहार गजट (असाधारण), 22

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICATION

CIVIL APPEAL NO. 4372 OF 2009

JANARDAN PRASAD SINGH

Appellant

VERSUS

NAWAL KISHORE YADAV

Respondent

(With office report)

(FOR FULL CAUSE TITLE AND DETAILS OF THE HIGH

COURT PLEASE SEE SCHEDULE “A” ATTACHED HEREWITH)

Date: 19/09/2013 This Appeal was called on for hearing today.

CORAM :

HON’BLE MR. JUSTICE R.M. LODHA

HON’BLE MR. JUSTICE MADAN B. LOKUR

HON’BLE MR. JUSTICE KURIAN JOSEPH

For Appellant (s)

Mr. Santosh kumar, Adv.

Mr. V. Sushant Gupta, Adv. For

Dr. Kailash Chand, Adv.

For Respondent (s)

Mr. Varinder Kumar Sharma, Adv.

Mr. Yugal Kishor Prasad, Adv.

The Appeal above- mentioned being called on for hearing before this court

on the 19^th day of September, 2013, UPON perusing the record and hearing

counsel for the parties herein, THIS COURT DOTH PASS The following

ORDER:

“2. Civil Appeal is dismissed with no order as to costs.”

AND THIS COURT DOTH FURTHER ORDER that this ORDER be punctually

observed and carried into execution by all concerned;

WITNESS the Hon’ble Shri Palanisamy Sathasivam, Chief Justice of India, at the

Supreme Court, New Delhi, dated this the 19^th day of September, 2013.

(ANITA KASHYAP)

ADDITIONAL REGISTRAR.

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अधी-क, सिचवालय मुिणालय,

बहार, पटना ारा ूकािशत एवं मु2ित।

बहार गजट (असाधारण) 774-571+50-ड+0ट+0पी0।

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