Mohamed Gaibankhan vs Returning Officer, Tumkur Constituency and Others

In this petition filed under S. 81 of the Representation of the People Act, 1951 (the Act) the election of Nazeer Ahmed (Respt. 2 herein) to the Karnataka Legislative Assembly from 57 Tumkur Assembly Constituency is called in question.

The election took place on 25.2.1978 and the counting took place on the following day. The same day Nazeer Ahmed was declared elected. Besides Nazeer Ahmed the other candidates in the field were the petitioner, Mohamed Gaiban Khan, and respondents 3 to 12.

The election of the returned candidate is challenged mainly on two grounds, namely;

(i) that he was not qualified to be chosen to fill the seat in the Legislative Assembly since he was not an elector of any Assembly Constituency in the State as he was not a resident of India within the meaning of Sec. 20 of the Representation of the People Act, 1950 (the Act of 1950); and (ii) that there was non-compliance with the provisions of the Constitution, the Act and the Rules or Orders made under the Act by the Returning Officer (respondent-1 herein) in the matter of allotment of the symbol ''Hand''to him, (the returned candidate) and this has materially affected the result of the election.

On behalf of the returned candidate (respondent-2) a written statement has been filed denying the averments made in this behalf by the petitioner in his petition.

Therefore, the following 10 issues were framed by the court:

Does the petitioner prove that the 2nd respondent was not ordinarily residing in the Constituency in question and further prove that his (2nd respondent''s) name had been wrongly entered in the electoral roll?

Does the petitioner prove that on the date of his election the second respondent was not qualified or was disqualified to be chosen to till the seat under the Constitution or the Act?

Was the nomination paper of the 2nd respondent improperly accepted by the Returning Officer (respondent-1)?

If so, has it materially affected the result of the election within the meaning of Section 100(1) (d) (i) of the Act?

Was the allotment of the symbol Hand to the 2nd respondent contrary to the provisions of the Election Symbols (Reservation and Allotment) Order, 1968?

If so, has it materially affected the result of the election within the meaning of Section 100(1) (d) (iv) of the Act?

In the event of the election of the 2nd respondent being set aside, is the petitioner entitled to be declared as duly ejected, under Section 101 of the Act?

Has this court no jurisdiction in this proceeding to consider the first issue referred to above as contended by the 2nd respondent."

Is the election petition liable to, be dismissed in limine under section 86 for not complying with the requirements of Section 81 (3) as stated in para 13 of the written statement of the 2nd respondent?

What order?

Issues 1, 2 and 8 cover the rival contentions of the parties touching the first ground of attack referred to above. Issues 3 to 7 deal with the second ground of attack. The 9th issue, is raised in view of the plea put forward by the 2nd, respondent that the petition should be, dismissed in limine for the petitioner not complying with the requirement of S. 81 (3) of the Act.

When the case, was set down for petitioner''s evidence, the learned counsel for the 2nd respondent submitted that issues 1, 2 and 8 may be heard preliminarily. Accordingly, these issues were taken up for hearing and the learned counsel were heard in the matter.

Now, the averments made in this behalf in the petition and the written statement may be stated briefly:

In the petition: That respondent-2 was continuously staying in U.S.A. since 1961 having gone there under a passport bearing No. A847696 dated 26.7.1961. He has got it renewed from time to time. He has been working in that Country in the General Electrical Company. He has married an American lady and stays with his wife and children. He has become a permanent resident of U.S.A. But, strangely his name finds a place in the voters'' list at Sl.No. 498. When his name came to be included in the voters list he was not a resident of India within the meaning of S. 26 of the Act of 1950. His is not a case of temporary absence from India nor is he a member of the Military or Police services nor was he a legislator when his name was entered in the voters list. He was neither a patient in any establishment for mental illness nor was he in any service abroad under the Government of India. Even though he did not have requisite residential qualification in the Country, his name finds a place in the voters'' list. But merely because his name is included in the voters list he is not entitled to stand for election since he did not have the requisite residential qualification. His inclusion in the voters'' list also does not satisfy the requirements of Rule 7 of the Registration of Electoral Roll Rules, 1969. Since he did not have the residential qualification, he was not qualified to contest in the election and his nomination paper should have been rejected by the Returning Officer.

8.In the written statement of the Returning Officer (Respt. 1): The name of respondent 2 found a place, in the electoral roll of this Assembly Constituency. So long as his name finds a place there, the Returning Officer was bound to accept his (respondent-2''s) nomination paper. It is not within his purview to decide whether respondents was a resident of India or not. Moreover, no such objection was raised at the time of the scrutiny of the nomination paper. He (respondent-1) had compared the particulars furnished in the nomination paper with reference to the electoral roll of the constituency and having found the same to be correct accepted the nomination paper.

9.In the written statement of respondent-2:The allegation that he (respondent-2) was not ordinarily a resident of India and that his name should not have been included in the voters'' list are wholly baseless, untenable, and are required to be rejected in limine. His name is found at Sl. No. 498 in Part-61 in the voters'' list of Tumkur Assembly Constituency. Therefore he was fully qualified in law to contest in the ejection. The question whether he was not an ordinary resident of the constituency during the material period and was on that account, not entitled to be registered in the electoral roll cannot be the subject-matter of any enquiry in this election petition. An enquiry of that nature can only be in accordance with the provisions of the Act of 1950. This court has no jurisdiction in the election petition to decide whether the entries made in the electoral roll relating to this respondent are correct ornot. This court can set aside the election only on one or the other of the grounds enumerated at S. 100 of the Act. That a person was not ordinarily a resident of the Constituency at the time he filed his nomination paper or on the date of election is not one of the grounds under S. 100 of the Act. Besides this, this respondent is an Indian citizen by birth. After obtaining the degree in Engineering at the University College of Engineering, Bangalore, in 1961, he proceeded to U.S.A. and obtained as M.S. Degree in Aeronautics at then California Institute of Technology in 1962. In 1965 from that very Institute he obtained an Ae.E., Degree in Aeronautics. In that year he entered Cornell University, Ithacha, New York, and obtained his Ph.D., in Applied Mechanics in 1967. That year he came to India and stayed in his native town for a considerable period. He went back to U.S.A. and studied Management in the New York University and also obtained an M.S. Degree in Management from the New School of Social Research in 1975. In 1976 he studied Bicycle Technology at Princeton, New Jersy, and returned to his native town and was staying there at the relevant time. His passport, obtained. from the competent authority, was valid upto 1983. It is true that he has married an American lady and has two children from her. The allegation in the petition that he was a permanent resident of U.S.A. is not true.

Out of issues 1, 2 and 8, an answer to issue No. 8 would set at rest the controversy whether issues 1 and 2 could be tried by this court in the light of the averments made in the petition in this respect.

The allegation that respondent 2 was not qualified or was disqualified to be chosen to fill the seat, and that the acceptance of his nomination paper was improper is sought to be sustained on the ground that he (respondent 2) was, at the relevant time, not ordinarily residing in the constituency and his name was wrongly entered in the electoral roll. The petitioner wants this court to go into this question, investigate into it, and sustain his plea, if found true.

Apart from stating that this residential disqualification, even if found true, was not one of the grounds to void the election of a returned candidate under the Act, what was further submitted by the counsel for respondent 2 was that that question cannot be gone into at all in anelection petition filed under S. 81 of the Act.

Sub-sec. (1) of S. 81 of the Act which is relevant for our purpose reads as follows:

"81. Preparation of petitions-(1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-sec. (1) of S. 100 and S. 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.

Explanation-In this sub-section ''elector'' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not."

As per this sub-section an election can be called in question on one or more grounds specified in sub-sec. (1) of S. 100 and S. 101 of the Act. S. 101 only enable an election petitioner, while calling in question the election of a returned candidate, also to claim a declaration that he himself or any other candidate has been duly elected. The various grounds on which a declaration to void the election can be sought for are enumerated in sub-sec. (1) of S. 100 which reads as follows:

"100. Grounds for declaring election to be void-(1) Subject to the provisions of sub-sec. (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 or the Government of Union Territorities Act, 1963 (20 of 1963); or (b) that any corrupt practice has been committed by a returned 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 of any nomination; or (ii) by any corrupt practice committed in the interests 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 (iv) by any non-compliance with the provisions of the Constitution or 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."

Sub-sec. (2) of S. 100 circumscribes or limits the scope of clause (ii) of sub-sec. (1) (d) of S. 100, which provides for the setting aside of the election of a returned candidate on proof of the corrupt practice committed in the interest of the candidate by an agent other than his election agent. We need not elaborate on the scope of this clause and sub-sec. (2) as the same are not relevant for our purpose. Since the averments made in the petition and covered by issues 1 and 2 are sought to be sustained only on the ground that respondent-2 was not qualified or was disqualified to fill the seat inquestion, we have to examine the averments made in the petition in this behalf with reference to Cl. (a) of Ss. (1) of S. 100 of the Act. This clause says that if a returned candidate, on the date of his election, was not qualified or disqualified to be chosen to fill the seat under the Constitution, or this Act or the Government of Union Territories Act, 1963 (20 of 1963), his election is liable to be declared as void. Since the Government of Union Territories Act, 1963 has no application to the instant case, let us examine as to whether the returned candidate on the date of his election was not qualified or was disqualified under any of the provisions of the Constitution or the Act (Representation of the People, Act, 1951). It may also be relevant to note now itself that clause (iv) of S. 100 (1) (d) also, while referring to the non-complaince of the provisions of law, refers only to the provisions of the Constitution, the Act, and Rules, and Orders made under the Act.

Under the Constitution it is Article 173 which lays down the qualifications for being a member of the State Legislature. The disqualifications for being chosen as a member are enumerated at Art. 191. Under Art. 173 the initial qualifications that a person should have, to contest for a seat in the State Legislature are that he should be a citizen of India, and should not be less than 25 years of age. Clause (c) of Art. 173 enables Parliament to provide such other qualifications as it may deem fit. Under Art. 191, a person will be disqualified for being chosen as and for being a member of the State Legislative Assembly or Legislative Council (i) if he holds any office of profit under the Government of India or the Government of any State, specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; (ii) if he is of unsound mind and stands so declared by a competent court; (iii) if he is an undischarged insolvent; (iv) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; and (iv) if he is so disqualified by or under any law made by Parliament.

It is nowhere stated in the petition that respondent-2, at the relevant time, was not a citizen of India. It is not his case that respondent-2 suffered from age disqualification. The disqualification alleged! in the petition is also not covered by Art. 191. It is not the petitioner''s case that respondent-2 had voluntarily acquired citizenship of a foreign State.

Now, weshall see whether the allegations made in the petition do come under any of the provisions of the Act. Ss. 5, 8, 8A, 9, 9A, 10 and 10A of the Act are relevant for our purposes. Under S. 5 of the Act in a constituency like this (a general seat) the only qualification that the candidate seeking election should have is that he should be an elector of any Assembly constituency in the State. Persons convicted of certain offences are disqualified for a period of six years from the date of such conviction as provided under S. 8. S. 8A provides for dis-qualification on the ground of corrupt practices, and S. 9 provides for disqualification on the ground of dismissal for corruption or disloyalty. Subsistence of a contract entered by a candidate with the appropriate Government is a disqualification under S. 9A. Holding certain offices under Government companies in the capital of which the appropriate Government has not less than 25 per cent share, under S. 10. S. 10A provides that the Election Commission can bar a particular candidate for a period of three years for failing to lodge an account of election expenses in time and without any good reason or justification. The allegations made in the petition do not come under any of these categories covered by Ss. 5, 8, 8A, 9, 9A, 10 and 10A of the Act.

Was not respondent-2 an ''elector'' within the meaning of clause (c) of S. 5 of the Act? The terms ''elector'' is defined in S. 2(1) (e) and it reads as follows:

"Elector in relation to a constituency means a person whose name is entered in the electroal roll of that constituency for the time being in force and who is not subject to any of the dis-qualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950)."

To be an elector what is required is that the name of that person, should have been entered in the electoral roll of that constituency and should not have been subject to any of the disqualifications mentioned in S. 16 of the Act of 1950. That the name of respondent-2 did find a place in the electoral roll of that constituency for the time being in force is a fact admitted in this case. At paras (3) and (4) of the petition it has been stated thus:

"3. But surprisingly the name of respondent-2 finds a place in the voters'' list though he was not a resident of India. It is not known as to how his name was included in the ''voters'' list at S. No. 498.

On the day when his name was included in the ''voters'' list the second respondent was not a resident of India within the meaning of S. 20 of the Act..... But nevertheless his name has been included as a voter and assuming that his name has been included he is not having the residential qualification, and, on this score his name should not have been included in the ''voters'' list. Mere inclusion of his name in the ''voters'' list does not entitle him to stand for election since he is not having the residential qualification."

S. 16 of the Act of 1950 referred to in the definition of the term elector reads as follows;

"16. Disqualifications for registration in an electoral roll-(1) A person shall be disqualified for registration in an electoral roll if he- (a) is not a citizen of India; or (b) is 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 election.

(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included:

Provided that the name of any person struck off the, electoral roll of a constituency by reason of a disqualification under Clause, (c) of sub-sec. (1) shall forthwith be reinstated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorising such removal."

The disqualifications mentioned in S. 16 of the Act of 1950 are three, and they are, (i) being not a citizen of India; (ii) being of unsound mind and declared as such by a competent court; and (iii) being disqualified from voting under any of the provisions of law relating to corrupt practices and other offences in connection with elections. A person, even though his name finds a place in the electoral roll, cannot be treated as an elector within the meaning of S. 2(1) (e) of the Act if he is subjected to the aforesaid three disqualifications. From the averments made in the petition and referred to by me in brief above, it is clear that these are not the disqualifications alleged against respondent-2.

The only allegation made in this behalf, as stated above, is that he was not ordinarily resident of Tumkur Constituency, and therefore, was disqualified from contesting in the election. But that is not a disqualification that the Returning Officer could have taken note of under S. 36 of the Act while making a scrutiny of the nomination papers. Nor can this court take note of that disqualification, assuming that it did exist, to set aside his election in view of what is stated above.

What was further argued by the counsel for the petitioner was that though the name of respondent-2 had been entered in the electoral roll that was a wrong entry and made contrary to the provisions of S. 19 of the Act of 1950, and that, since respondent-2 was not ordinarily resident of Tumkur Constituency within the meaning of S. 20 of that Act, his name should not have been registered in the electoral roll of that constituency at all. Therefore, according to the learned Counsel, this question is required to be investigated into by this court, and if the allegation is found to be true discarding the registration of the name of respondent-2 in the electoral roll he should be held to have not been an elector at the relevant time, and his election should be set aside for not possessing the requisite qualification mentioned in Clause (c) of S. 5 of the Act. While, submitting that this court has no jurisdiction to find out as to whether respondent-2''s name had not been properly registered in the electoral roll of that constituency, the learned counsel for Respt.-2 places reliance on a decision of the Supreme Court in Hari Prasad Mulshankar Trivedi v. V.B. Raju, AIR. 1973 SC. 2602. Though S. 16 of the Act of 1950 enumerates the disqualifications for being registered in the electoral roll, it is S. 19 of that Act which provides for the conditions on the fulfillment Of which a person becomes entitled to beregistered as an elector in the electoral roll of a constituency. There are two conditions namely, that a person should not be less than 21 years of age on the qualifying date, and should be ordinarily resident of any constituency. S. 20 of the Act of 1950 defines the meaning of "ordinary resident". We need not go into these details. S. 22 of this Act provides for correction of entries in the rolls and S. 23 for the inclusion of the names therein. S. 22(c) says that if a person is dead or has ceased to be an ordinary resident in the constituency, or is otherwise not entitled to be registered in the roll, the Electoral Registration Officer may delete the entry. This, he can dp suo motu, or, on an application made to him in this behalf. Any decision he makes under Sec. 22 is subject to an appeal to the Chief Electoral Officer under S. 24. The jurisdiction of the Civil court to, deal with this question is barred under S. 30 of the Act of 1950. In Hari Prasad''s case, AIR. 1973 SC. 2602 (supra) the election of three candidates to the council of states from the State of Gujarat was called in question. The election was held on 8.4.1972. The main ground urged in the petition for declaring the election of two of them as void was that they were not ''ordinarily resident'' in the area covered by any Parliamentary Constituency in the State of Gujarat, and that their names had been wrongly entered in the electoral rolls concerned and that they were not ''electors'' within the meaning of S. 2(1) (e) of the Act of 1951, and therefore were ineligible to stand as candidates for the election. It was pleaded on behalf of the returned candidate in the High Court of Gujarat that it had no jurisdiction to go into that question. This issue was tried preliminarily by the High Court and the court held that it had jurisdiction to examine whether these successful candidates were not ordinarily residing in the constituency, and thereby were ineligible to get their names registered in the electoral roll. The reasons given by the High Court, as observed in Hari Prasad''s case, was as follows:

(from para 10 of the case)

"The reasoning of the court was that ordinary residence in a constituency was a jurisdictional fact and the registering officer cannot, by an erroneous decision, determine the jurisdictional fact wrongly and clothe himself with jurisdiction and enter the names of respondents 4 and 5 in the election petition in the electoral roll in violation of the provisions of section 19 of the Representation of the People Act, 1950."

Disagreeing with the view expressed by the High Court of Gujarat and holding that an election Tribunal has no jurisdiction to go into that question, the Supreme Court has observed as follows:

"The decision on the question whether a person is ordinarily resident in the constituency in the electoral roll of which his name is entered has been entrusted to the exclusive jurisdiction of the registered officers and the appellate authorities under the Acts, Ss. 14 to 24 of which provide a complete code in the matter of preparation and maintenance of electoral rolls. A wrong decision on that question cannot be, treated as a jurisdictional error and cannot be judicially reviewed either in a Civil Court or before an election tribunal. The intention of the Parliament to oust the jurisdiction of the Court trying an election petition to go into that question is manifest from the scheme of the Representation of the People Acts of 1950 and 1951 and specially Section 30 of the 1950 Act which expressly ousts the jurisdiction of the Civil Court to try that question.

"A person whose name had been entered in the Electoral roll of the Parliamentary constituency of the State and who did not suffer from any of the disqualifications under S. 16 of the 1950 Act is an elector within the definition of that term in Section 2(1) (e) of the 1951 act and as such he, is qualified to be chosen as a candidate under section 3 of the 1951 Act."

The ratio of the above decision applies on all fours to the facts of this case. In view of this clear statement of law by the Supreme Court, and also in view of what is stated above, I am of the opinion that it would be beyond the jurisdiction of this Court to consider whether respondent-2 was not an "ordinary resident" of Tumkur Constituency at the relevant time; that his name had been wrongly included in the electoral roll of that constituency; and therefore, was not an elector within the meaning of S. 2(1) (e) of the Act, and hence was disqualified from contesting in the election.

Therefore my answer to issue No. 8 isin the affirmative, and, consequently issues Nos. 1 and 2 do not survive for a decision.