Smt. P. Sharadamma and Sri S.M. Gurunanjaiah vs Marithibbegowda

N. Kumar, J.—The petitioners have preferred this Election Petition tinder Section 81 of the Representation of People Act, 1951, (hereinafter for short referred to as the Act) for a declaration that the election of the respondent Sri Marithibbegowda from Karnataka South Teachers Constituency of Karnataka State to the Karnataka Legislative Council declared on 19.6.2006 as null and void and set aside the same and for other consequential reliefs.

The petitioners contested for Legislative Council Election from Karnataka South Teachers Constituency held on 17.6.2006. The Karnataka South Teachers Constituency consists of Mysore, Chamarajnagar, Mandya and Hassan Districts. The calendar of events was issued on 24.5.2006. The last date for submitting the nomination paper was 31.5.2006. The last date for withdrawal of the nomination was 3.6.2006. The date of election was fixed on 17.6.2006. After the last date for withdrawal, 11 candidates remained in the election fray including the petitioners herein.

In the election held on 17.6.2006, the first respondent was declared as elected on securing 8807 votes. The first petitioner was eliminated in the 10th round. The second petitioner was eliminated in the 11th round. Thereafter first respondent was declared as elected.

The case of the petitioners is that, the draft voters'' list was issued on 12.12.2005 and the modified voters'' list was issued on 1.3.2006. On 31.5.2006 in respect of these voters list several objections were filed pointing out that the names have been wrongly included in the voters list. On the basis of the objection, certain names were deleted. However, the Electoral Registration Officer and Asst. Electoral Registration Officer have not bothered to verify the conditions of the eligibility of the voters and have permitted several ineligible persons to cast their votes in the election. The State Government has issued a notification on 28.6.1962 u/s 27(3) of the Act of 1950 specifying the type of educational institutions for the purpose of conducting election to the Legislative Council in the Teachers Constituency. The said notification only enumerates the type of educational institutions without giving details of the names of the institutions. The same notification is being followed even though several new educational institutions have come up as on day. The election which is held on the basis of the list prepared on 28.8.1962 will not be a valid election as it does not take within its fold several other educational institutions. The teachers engaged in all educational institutions which are higher than that of Secondary School are entitled to exercise their franchise. Prescribing the educational institutions will have to be done prior to every election. Article 171 of the Constitution states that a person should be engaged in teaching "in such educational institutions within the State, not lower in standard than that of a Secondary School, as may be prescribed by or under any law made by the Parliament". It is therefore necessary to prescribe a list of all educational institutions throughout Karnataka State. It is not enough if the list contains certain types of educational institutions only. The entire basis for conducting the election is the prescribed list of educational institutions. In the absence of such a list of educational institutions, there can be no valid election held for the Legislative Council. Hence, the petitioners submit that the non-prescription of the educational institutions itself would invalidate the entire election. It also amounts to improper reception of votes and improper refusal of votes of the teachers working in several educational institutions. Therefore, the election is liable to be declared as invalid for not complying with Article 171 of the Constitution and Section 27 of the Representation of People Act, 1950 (for short hereinafter referred to as the Act of 1950).

It is further contended that the election to the Legislative Council is vitiated by permitting several ineligible voters to exercise their franchise. The election is liable to be set aside on the ground of reception of void votes and rejection of valid votes. In this regard the petitioners have set out the different types of in eligibility. They are:

(a) The Primary School Teachers have been permitted to vote in the election, even though it is only the teachers teaching in educational institutions higher than secondary level who are entitled to vote. The particulars of 17 teachers who are working in primary schools of Mysore City who are not entitled to vote but whose names are included in the voters list is set out and the endorsement issued by the Block Education Officer in this regard are produced.

(b) There ore several Part-Time/Guest Faculty Lecturers who are working in different educational institutions and they have been permitted to vote even though they are not eligible to exercise their franchise.

(c) The Job Oriented Course teachers working in Pre-University colleges are also teaching part time and they are ineligible to cast their votes in the Legislative Council in teachers Constituency. These teachers have been allowed to vote in the election.

(d) Librarians have been allowed to vote even though they are not entitled to. The names included in the voters list and who are allowed to exercise their franchise are also set out. They are four in number.

(e) There are certain Computer Trained Assistants in different High Schools and PU Colleges. They are called Mahiti Sindhu Teachers. They are working on contract basis, They are ineligible to vote.

Further, it was contended that in accordance with the provisions of the Constitution and the provisions of the Act of 1950, it is only persons who have put in three years of service within a period of six years commencing from the qualifying date are entitled to vote. However, several persons who are just aged 20, 23, 24 years are enrolled as voters. To become a teacher, a person should have completed graduation and B.Ed, degree in normal course, a person can acquire this qualification fay a minimum age of 22 years. Thereafter, the teacher will have to put in three years of service. In other words, a person who is aged less than 25 years will not be entitled to vote. The respondents have permitted teachers and others who are aged less than 25 years to exercise their franchise.

There are several teachers who are not working in any of the institution, but their names have been included in the voters'' list and they have also cast their votes, even though they are not eligible to vote either under the provisions of the Constitution of India or under the Act of 1950. If these persons had not been permitted to vote, the same would have materially altered the results of the election. The names of all these persons are found in the voters'' list and they have cast their vote thereby materially affecting the result of the election. The difference of votes between the petitioners and the respondent is very marginal. In fact the difference is only a few 100s in the 8th and 9th round of election.

The aforesaid mentioned facts clearly demonstrate that the result of the election is materially affected by "non-publication of a list of approved educational institutions, by permitting ineligible persons to vote and by denying eligible persons to exercise their franchise". This has materially affected the result of the election, and as such the election of the respondent is liable to be declared as void.

After service of notice, the respondent entered appearance. He has filed detailed written statement traversing the allegations made in the election petition. He contends that the election petition is not maintainable under law, bereft of merits and hence deserves to be dismissed in limine. He has raised a preliminary objection. He contends that the main ground on which election petition is filed is that ineligible voters have been included in the voters list and those persons have been permitted to exercise their franchise. In that connection he submits that the voters list/electoral roll of the election is prepared under the provisions of the Act of 1950. Section 27, and in particular Sub-sections 4, 5(b) and 6 of the 1950 Act provide for preparation of voters list of the Council Constituency. The Act of 1950 also provide for filing of objections, for inclusion of names in the voters list, hearing objections by the Electoral Registration Officer and on appeal to the Chief Electoral Officer to challenge any inclusion in the voters list on the ground that the same is illegal. It is the only remedy available to an aggrieved party. Right to vote is a statutory fight subject to certain restrictions u/s 62 of the Act. It is clear, if a person''s name is included in an Electoral Roll of a constituency, he is entitled to vote unless disqualified u/s 16 of the Act of 1950 and other restrictions imposed in Sub-Sections (2) to (5) of Section 62 of the Act. An election petition may be filed challenging the election of an elected candidate only on the grounds set out u/s 100 of the 1951 Act. Therefore, the ground of inclusion of ineligible persons in the voters list and the said ineligible voter exercising his franchise, cannot be a ground to set aside the election of any returned candidate u/s 100 of the Act The case is completely covered by judgment of the Supreme Court in the case of Shyemdeo PD Singh v. Nawal Kishore Yadav reported in (2000) 8 Scc 46, where it was held that inclusion of person or persons in the electoral roll by an authority empowered in law to prepare the electoral rolls, though they were not qualified to be so enrolled, cannot be a ground for setting aside an election of a returned candidate under tub-clause (iii) or (iv) of Clause (d) of Sub-section (1) of Section 100 of the 1951 Act.

Further, it was contended that, the facts pleaded in the petition by themselves do not disclose a cause of action end even if all the allegations in relation to inclusion of names of the persons who are not eligible in the voters list are true, the same cannot be a ground for setting aside the election. Therefore the election petition is not maintainable and requires to be rejected at the threshold on the above preliminary objections,

Along with the statement of objections the respondent filed an application I.A. No. 1/06 under Order 7 Rule 11 of the Code of Civil Procedure, 1908 read with Section 87 of the Representation of People Act, 1951 requesting the Court to reject the election petition as the same does not disclose a cause of action. The said application was opposed by the petitioners. After hearing both the parties, this Court by an order dated 12th October 2007, held that when the Constitution prescribes the qualification for a person to be entered as a voter in the electoral roll and persons who do not possess the said qualification are entered as electors in the electoral roll, such persons have no right to vote and if they exercise their franchise the said vote would be void. Therefore, such a case would squarely fall under Sub-clause (iv) of Clause (d) of Sub-section (1) of Section 100 of the Act. which declares that if there is any non-compliance with the provision of the Constitution or the Act or of any Rules or orders made under the Act, it materially effects the result of the election and would constitute a ground for declaration of the election to be void. Further it was held that the averments in paragraph 6 to 10 of the Election Petition discloses a cause of action or a triable issue and therefore a case for rejection of the election petition under Order VII Rule 11 was not made out and accordingly, the said application was dismissed. The said order is not challenged.

Thereafter the Court framed the following issues on 06.11.2007:

i) Whether the petitioners prove that the votes cast by Primary School leathers, Guest Faculty/part lime Teachers, Teachers working in Job Oriented Courses, librarians and Computer Trained Assistants whose names were duly entered in the Electoral Roll of Karnataka South Teachers Constituency, in so far it concerns, a returned candidate has been materially affected by non compliance with the provisions of the Constitution or of the Representation of Peoples Act, 1951 or any rules or orders made under the said Act?

ii) Whether the votes cast by the aforesaid category of persons would constitute reception of any vote which is vaid and consequently, the result of the election insofar as it concerns the returned candidate has been materially affected?

iii) Whether the election of the returned candidate has been materially affected by non-publishing of list prepared with regard to educational institutions in the manner provided under the Constitution of India and Representation of Peoples Act, 1951?

The case was fixed for trial on 21.11.2007. On that the first petitioner was examined as P.W-1 and Exs.P-1 to P-35 were marked. She was cross examined on 24.11.2007. On 03.12.1007 P.Ws-2, 3 and 4 were examined and they were also cross examined. On 04.12.2007 P.Ws-5 and 6 were examined and cross examined. P.Ws-8, 9, 10 and 11 were examined and cross on 06.12. 2007. On behalf of the respondents none were examined.

Subsequently, on the applications filed by the petitioners I.As-3 and 4, P.W-2 was recalled and he was also directed to produce the marked copy of the electoral roll, counter foil of the ballot papers of all the polling booths including the details of the voters who have cast the votes in the election. The said applications were allowed after contest. P.W-2 was examined after being recalled an 03.04.2008 and he was cross examined. On behalf of the respondent no evidence was adduced. Thereafter, the case was set down for arguments. Arguments were heard.

The learned Counsel for the petitioner Sri. Ashok Haranahalli firstly contended that petitioner in this writ petition has not challenged the entries in the electoral roll. The challenge it on the ground that the persons whose names are entered in the electoral roll did not possess the qualification prescribed under the Constitution and therefore casting of vote by such persons has materially affected the elections and therefore it amounts to non-compliance with the provisions of the Constitution. The oral and documentary evidence produced on record clearly shows that 8 primary school teachers, 3 librarians, 61 part time teachers, 224 JOC lecturers, 35 computer teachers, 437 teachers who have not completed three years of service have exercised their franchise. Thus in all, 768 persons who did not possess the qualification prescribed under the Constitution have exercised their franchise. The list of institutions as prescribed under Article 171 of the Constitution is not prepared for the purpose of conducting election. Reliance is also placed on the guideline No. 5 issued by the Election Commission. Therefore, the election of the returned candidate is vitiated.

Per contra, Sri. G.V. Shantharaju, learned Senior Counsel appearing for the returned candidate contended that firstly, violation of any of the provisions of the Constitution of India in the matter of preparation of electoral roll cannot be a ground for setting aside the election. It is only when the elected candidate suffers from any disqualification or lacks any of the qualification prescribed under the Constitution, his election can be set aside. Secondly, the ineligibility of the voter who is enrolled is no ground to set aside the election. The same cannot be the subject matter of election petition. Thirdly, it is only the non-compliance with any of the provisions of the Constitution in the process of holding of election, which materially affects the result of the election, can be a ground for setting aside the election. The election process commences with the notification issued by the Election Commission u/s 16 of the 1951, Act and concludes with declaration of election and it is only non-compliance with any of the provisions of the Constitution between these two dates can be the subject matter of trial of an election petition. Any non-compliance of provision of the Constitution which is anterior to the date of commencement of the election process like the preparation of electoral roll cannot be gone into in an election petition. On merits it was contended that regarding exercise of votes by 437 teachers who have not completed three years of experience which is based on entries made in the electoral roll is solely on account of printing error which can be ignored as provided in proviso to Sub-section (4) of Section 33 of the Representation of People Act, 1951. No positive and cogent evidence is adduced by the petitioner contrary to the claim of the voters regarding their teaching experience and therefore no case is made out by the petitioner even on merits to demonstrate that the result of the election is materially affected by casting of such votes.

Whether the ineligibility of the persons whose names are entered in the electoral roll can be gone into by the Court trying the election petition is concerned, this Court has already considered the said question and held that it can be gone into, by its order dated 12th October 2007 passed on LA. 1/06. The learned Senior Counsel for the respondent submitted that even though this Court has already taken that particular view, it is still open to the Court to take a view contrary to the one taken earlier, if it is satisfied from the submissions now made and the decision relied upon. The order posted on I. A. No. 1/ 2006 is on interlocutory order and, therefore, principles of res judicata is not attracted.

Relying on the Constitution Bench Judgment in Indrajit Barua and Others Vs. Election Commission of India and Others, , wherein it was held that once the final electoral rolls are published and elections are held on the basis of such electoral rolls, it is not open to anyone to challenge the election from any constituency or constituencies on the ground that the electoral rolls were defective, he contended, that is not a ground available for challenging an election u/s 100 of the Representative of the People Act, 1951. The finality of the electoral rolls cannot be assailed in the proceedings challenging the validity of an election held on the basis of such electoral roll.

There cannot be any quarrel with the aforesaid legal proposition. The petitioners are not challenging the election of the returned candidate in this election petition on the ground that electoral rolls were defective. In the instant case, in fact the petitioner challenges the election on the basis of the entries in the electoral roll itself and he has not challenged the entries in the electoral roll. What is contended is that the entries in the electoral rolls clearly demonstrates that the names of the persons who do not possess the qualification prescribed under Article 171 of the Constitution of India. Article 171 requires at nearly as 1/12th of the total number of Legislative Council of a State shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in such educational institutions within the State not lower in standard than that of a secondary school, as may be prescribed by or under any law made by the Parliament. The said constituency is popularly known as teachers constituency. Electorate of teachers constituency should have the following condition:

(a) He should be engaged

(b) He should have atleast three years experience in teaching.

(c) He should be teaching in such an educational institution within the State not lower in standard than that of a secondary school.

Therefore, a person who is teaching in an educational institution which is lower in standard than that of a secondary school, cannot be an electorate of teachers constituency. More importantly, the person employed in such educational institution must be teaching, other words an employee who is not teaching is not entitled to be an electorate of the said constituency. Incidentally, if the names of persons who do not possess the said qualifications are included in the electoral roll, the electoral roll is defective. If the names of such persons are to be removed from the electoral roll, the Act of 1950 provides a separate machinery. The question whether names of such electorate is wrongly included in the electoral roll or not, is certainly not a matter which can be gone into by this Court in an election petition. The Act has provided for an alternative remedy. But, it is altogether different to say that the very electoral roll shows the names of persons entered therein do not possess the qualification prescribed by the Constitution, then, if such persons are permitted to cast vote in the election, certainly the election is vitiated. In other words, the mere defect in the electoral roll is not sufficient. Such a defect should fall within the purview of non-compliance with the Constitution or the Act, or the Rules and Regulations under the Act, in which event it can be the subject matter of an election dispute u/s 100 of the Act. The said voting takes place only after the issue of calendar of events, and in the process of election. If such voting has resulted in the success of the returned candidate, the High Court has the power to declare the election of such returned candidate as void.

In fact, in Indrajit Barua''s case, writ petition under Article 226 came to be filed challenging the election to Assam Legislative Assembly on the ground that the electoral rolls were not reviled before the elections in contravention with the provisions of Section 21 Sub-section (2)(a) of 1950, Act and the elections held on the basil of electoral roll of 1979 are void. In that context it was held that Article 329(b) of the Constitution bars any challenge to the election by way of writ petition under Article 226. It was further held that once the final electoral roll is published and elections are held on the basis of such it is not open to anyone to challenge the election from any constituency or constituencies on the ground that electoral rolls were defective. That is not a ground available for challenging the election u/s 100 of the Representation of People Act.

In fact, in the earlier Constitution Bench judgment of the Supreme Court in Durga Shankar Mehta Vs. Thakur Raghuraj Singh and Others, , it is held as under:

In our opinion Mr. Sen is right that a case of this description cornea under Sub-section 2(c) of Section 100 and not under Sub-section (1)(c) of the section as it really amounts to holding an election without complying with the provisions of the constitution, and that is one of the grounds specified in Clause (c) of Sub-section (2). The expression "non-compliance with the provisions of the Constitution" is in our opinion sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer, but there is a fundamental disability in the candidate of stand for election at all The English law after the passing of the Ballot Act of 1872 is substantially the same as has been explained in the case of-"Stowe v. Jolliffe (1874) 8 C.R. 734 (D). The register which corresponds to our electoral roll is regarded as conclusive except in cases where persons are prohibited from voting by any statute or by the common law of Parliament.

Therefore, the election of the returned candidate is not challenged only on the ground that the electoral rolls were defective. The said defect is a fundamental disability in the voter, in as much as he does not satisfy the qualification prescribed under the Constitution, and therefore, it amounts to holding an election without complying with the provisions of the Constitution, and it is one of the grounds specified in Clause (iv)(d) of Sub-section (1) of Section 100 of the R.P. Act, if proved this Court can declare that the election of the returned candidate is void.

It was next contended that in the aforesaid judgments, the question that was gone into is, whether the returned candidate suffers from any of the disqualifications and also whether there is any non-compliance with the provisions of the Constitution which renders his election void. The said judgment has no application to a case of a voter whose name is included in the voters list, who do not satisfy the qualification prescribed under the Constitution. Clause (a) (b) and (c) of Sub-section (1) of Section 100 deals with qualifications of returned candidate, corrupt practices committed by the returned candidate or nominations of the returned candidate. Whereas, Clause (d) do not refer either to the candidate or to the voter. All that it says is, if the High Court it of the opinion that result of the election, as far as the returned candidate is concerned, has been materially affected by any non-compliance with the provision 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 to be void. Therefore, the persons who are not duly qualified under the Constitution cast vote in the election on the ground of which the returned candidate has succeeded, it is open to the High Court to declare the election of the returned candidate to be void. It is not even a case of improper refusal of any vote or the reception of any vote which is void. But Sub-clause (iii) of Clause (d) of Section 100 categorically provides that if there is any improper reception, refusal or rejection of any vote or the reception of any vote which is void, it is open to the High Court to declare election of the returned candidate as void. Therefore, these disqualifications or illegal acts that need not be necessarily referable to the returned candidate, it is equally referable to voter, It can be a ground to set aside the election of a returned candidate.

In fact all these questions are discussed in detail with reference to the law laid down by the Apex Court in the order dated 12th October, 2006 passed on I.A No. 1 of 2006 and the said contention is negatived. The said order is not challenged and it has become final. In fact the same contention was reiterated by way of objection to I.A. No. 3 of 2007 and the said contention was rejected by this Court on the ground, the findings recorded in the order dated 12th October 2008, passed on I.A. No. 1 of 2006 operates as res judicata. Even the said order has reached finality. Again the same contention is urged at the final hearing. The question is, "Is it open to the respondents to urge the same ground again and an order passed at the interlocutory stage would operate as res judicata at the subsequent stage in the same proceedings."

The law an the point is well settled. The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. This principle of res judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure. But even where Section 11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.

The principle of res judicata also applies as between two stages in the same litigation. It is to this extent that, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way, will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the materials and relevant factors to be considered before the principle is held applicable.

They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of the parties to the litigation, the principle of res judicata does not apply to the findings on which these orders are based.

These orders generally are of two types. The orders ore passed in aid of the main relief to be granted at the conclusion of trial. There are other orders which are also interlocutory but would fall into a different category. The later orders passed are not directed to maintain the status quo or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they neither decide any matter in issue arising in the suit, nor put an end to the litigation. These orders, which arises for consideration in the suit which is to be tried as preliminary issue or without deciding the said dispute, the Court cannot get jurisdiction to proceed with the merits of the claim, such as, issues regarding maintainability of the proceedings, jurisdiction of the Court, bar under any other law and similar nature. In this category of cases even if new facts are brought to its notice, even the law which was not noticed by the Court earlier is brought to its notice, the principle of res judicata applies with complete force and the Court has no jurisdiction to rehear the matter and meddle with the order passed earlier, which has attained finality in so for as that Court is concerned.

The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the court does not however necessarily rest on the principle of res judicata. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of res judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the other case, on proof of fresh facts, the court would be competent, nay would be bound to take those into account and make an order conformably to the facts freshly brought before the Court.

In fact the Supreme Court in a recent judgment in the case of U.P. State Road Transport Corporation v. State of U.P. reported in AIR 2006 SC 446, relying on the earlier judgment of the Apex Court in the case of Sathyadhan v. Smt. Deorajin Devi reported in AIR 1960 SC 1457, held as under:

The principle of res judicata is based an the need of giving a finality to judicial decisions. The principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of Section 11 of CPC in this respect. Res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. (See Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, ).

This Court, after considering the argument on the maintainability of the petition and after referring to all the decisions now referred to in the course of argument, held as under:

The expression "non-compliance with the provisions of the Constitution'' is sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the vote by the Returning Officer, but there is a fundamental disability in the voter to cast his vote in an election. When a person do not have the prescribed qualification under the Constitution, but nevertheless his name is included in the voter''s list, it amounts to non-compliance with the provisions of the Constitution, materially affecting the result of the election. There is no material difference between "non-compliance" and "non-observance" or "breach" and this item in Clause (c) of Sub-section (2) may be taken as a residuary provision contemplating cases where there has been infraction of the provisions of the Constitution or of the Act but which have not been specifically enumerated in the other portions of the clause. When a person is not qualified to be a voter at all under the Constitution, them can be no doubt that the Election Tribunal has to take it into account and if such votes had vitiated the election it can declare the election as void. The question whether a person whose name is entered in the electoral roll is qualified under the Constitution and whether he suffers from any of the disqualifications specified in Section 16 of the 1950 Act can always be gone into by the Court trying an election petition. The electoral roll is never conclusive or final in respect of these matters.

Therefore, one has to bear in mind the difference between not eligible to be inducted in the voters'' list under the provisions of the Act of 1950, disqualified from being entered in the voters'' list under Act of 1950 and not qualified under the Constitution. As is clear from Sub-section (2) of Section 62 of the 1951 Act, a person who is disqualified u/s 16 of the Act of 1950 even if his name is included in the voters'' list he is not permitted to vote and if such a person were to caste his vote it would be a void vote. In so far as the persons who do not possess the requisite qualification to be included in the voters'' list, it is two fold. Firstly, persons who do not possess the qualifications prescribed under the Act of 1950 and the other persons who do not possess the qualification prescribed under the Constitution. If it is a case of not possessing the qualification under the Act of 1960 and if such person''s name is included in the electoral roll and if they were to cast vote it would not amount to improper receipt of a vote and the same cannot be the subject matter of a dispute in an election petition. The said dispute has to be resolved in the manner provided wider the Act of 1950 as Section 30 of the said Act oust the jurisdiction of the Civil Court as well as the High Court to go into the said questions in an election petition filed u/s 100 of the Act But, the same would not apply to a case of want of qualification as prescribed under the Constitution. If a person whose name is entered in the electoral roll do not possess the qualification prescribed wider the Constitution, then there is a fundamental disability in the voter to cast his vote in an election. If such a person is permitted to vote, it would he a case of non-compliance of the Constitution and that dispute can be gone into in an election petition.

Therefore, the taw on the point is fairly well settled. If it is a disqualification wider Section 16 of the Act of 1950 or a disqualification or not possessing qualification prescribed wider the Constitution that can be the subject matter of an election dispute u/s 100 of the Act. By virtue of Section 30 of the Act of 1950 the Jurisdiction is not ousted and that is not a matter to be resolved in the manner provided wider the Act of l950.

The said finding recorded while disposing of interlocutory application No. 1, squarely operates at res judicata and it cannot be re-agitated at the final hearing once again.

Now coming to the merits of the case, in order to prove her case Stout P Sharadamma the first petitioner was examined as PW1. She has filed her evidence by way of examination- in-chief. She has in her evidence marked the documents which are produced along with the Writ Petition. Ex.P1 is the calendar of events dated 24.5.2006. Ex.P2 is the list of candidates who contested the election. Ex.P3 is the statement showing the number of votes received by each candidate in each round. Ex.P4 is the voting statistics of each polling booth. Ex.P5 is the letter addressed by Chief Election Officer to the Returning Officer of the constituency asking them to prepare the voters'' list. Ex.P6 is a letter addressed by the Returning Officer to the Assistant Returning Officers of the four Districts to prepare the voters'' list. Ex.P7 is a press notification issued by Assistant Returning Officers calling upon the eligible voters to enroll themselves in the voters'' list of the teachers'' constituency. Ex. P8 is an endorsement issued by the Deputy Commissioner of the District mentioning the types of persons who are not eligible to be voters of a teacher''s constituency. Ex.P9 is a letter issued by the Block Education Officer giving the names of some of the primary school teachers who were not eligible to be included in the voters'' list of teacher''s constituency. Ex.P10 is yet another letter similar to Ex.P9 where persons who were ineligible to be included in. the voters list is mentioned. Ex.P11 is yet another letter which has included the names of persons who ore not In existence at all, in the voters'' list. Ex.P12 is a letter issued by the Regional Director, Collegiate Education, giving the names of guest lectures who are working in various Government colleges in four districts which falls within the teachers'' constituency. Ex.P13 is the letter and P14 is a list of guest lecturers who are working in the university colleges situated in the 4 Districts who are not eligible and are included in the voters'' list of a teachers'' constituency. Ex. P15 is a list prepared by the petitioner giving the names of guest lecturers working in First Grade Colleges and University Colleges with their serial numbers in the voters list and part number who are not eligible to be included in the voters'' 1st of teachers constituency. Ex-P15 is prepared by the petitioner on the basis of voters'' list. Ex.P16 is a list of persons who are working in job oriented courses in PU colleges whose names are also included in the voters'' list pertaining to Mandya District. Ex.P17 is a similar list pertaining to Hassan District. Ex.P18 is a similar list of Chamarajnagar District. Ex.P19 pertains to Mysore District. Ex.P20 is a list of lecturers working in Job Oriented Course in the Mysore District. Ex.P21 pertains to Mandya District. Ex.P22 pertains to Chamarajnagar District. Ex.P23 pertains to Hassan District. All the above four district JOC lecturers list found in the voters'' list is prepared by the petitioner alongwith their serial number and part number. Ex.P24 is a list of persons who are working as Computer Programme Assistants working in High Schools whose name are also included in the voters'' list of teachers constituency of Mysore District. Ex.P25 pertains to Chamrajnagar District. Ex.P26 pertains to Hassan District. Ex.P27 is a list prepared by the petitioner with respect to Computer Programme Assistants giving their number in the voters'' list. Ex.P28 is a list of teachers who have not completed three years of teaching experience. Ex.P29 is a certificate issued by the Head Blaster of Milinda High School, Giragur, stating that only two teachers are eligible out of six to be included in the voters'' list. Ex. P30 is a similar letter issued. Ex.P31 is yet another letter of similar nature. Ex.P32 is a consolidated list prepared by the petitioner showing the names of teachers who are not eligible to be included in the voters list on the basis of the letters issued by the Headmaster. Ex.P33 is yet another letter issued by Block Education Officer, North Division, Mysore. Ex.P34 is the voters'' list of the four Districts of teacher''s constituency. (It is produced in 5 bundles and it contains 37 parts.) Ex.P35 is a notification of the year 1962 issued u/s 27(3) of the Representation of People Act.

All that has been emphasized in the cross-examination of this witness is that only after the lost the election, she has made enquiries and obtained the particulars which the hat produced in the case. Before the election she approached the voters requesting them to cast their votes in her favour. At that point of time she did not notice the irregularities which is now pointed out. The particulars mentioned in Ex.P9 to P32 is not correct. She having worked as Deputy Director of Public Instructions in Mandya District as well as in Mysore District has wielded influence in getting those documents. She did not file any objections to the draft voters'' list. ''The objections filed by others were considered and the authorities have removed some names. As no one filed objections to the names of the persons found in Ex. P9 to P32 they were not removed from the Hit. In the re-examination it is elicited that no objections were filed to the draft voters'' list for removal of the names found in Exs. P9 to P32 as she was not aware that they were not eligible to be included in the list.

In so for as Exs P9 to P32 is concerned, they are not documents in the hand writing of PW1. Except producing the same and getting it marked she has no personal knowledge of contents of the said documents. In fact, they are all in the nature of public documents, certified copies issued by the competent authority. However, in order to prove the said documents the petitioners have examined the other witnesses.

PW2 is one 8. Selvakumar who was the Deputy Commissioner of Mysore District at the relevant point of time and he functioned as Returning Officer in the election of Karnataka South Teachers Constituency in the year 2006. He has referred to Ex.P35 the notification issued under Clause (b) of Sub-section (3) of Section 27 of the Act. It is a notification specifying the education institutions within the State not lower in standard than that of a secondary school for the purpose of Legislative Council of Mysore for Teachers Constituency. He has stated that the said notification is generic in nature and it includes all types of institutions. List of institutions are not prepared for the purpose of conducting elections. It is the Government''s prerogative to include the education institutions in the aforesaid list. He has also spoken about Ex.P8, an endorsement which gives reasons for not including certain types of education institutions for the purpose of election. He admits that the said endorsement is not issued by him but it is issued by the Assistant Electoral Registration Officer. He admits that they had prepared a draft Electoral Roll and published the same inviting objections from the general public as well at from persons whose names are included or not included. He admits bavins received objections in respect of inclusion of certain names in the Electoral Rolls. After considering the objections wherever it was found valid the names in the draft voters'' list were deleted. He has pleaded his ignorance about 300 names of part time lecturers and guest lecturers continued in the voters'' list because they received no objections in respect of their names. He also pleaded his ignorance about the names of primary school teachers being included in the voters list, about some eligible voters names not being included in the voters list and some persons who are not eligible to be included in the voters list are included. He admitted that some institutions mentioned in Ex.P5 are not in existence.

The petitioners have examined PW3 Shivarame Gowda-Block Education Officer. It is he who has issued Ex. P9. He has stated that he has furnished the particulars after verifying the records maintained by him. Ex.P9 gives the names of some of the primary school teachers who were not eligible to be included in the voters list of teachers constituency. It is suggested to him in crass-examination that PW1 was working as his superior officer and, therefore, he has furnished the particulars as sought by her which is false.

PW4-Sri K Srihari, Joint Director, Department of Collegiate Education, Mysore Region, Mysore, was examined to prove Ex.P12. It is a letter issued by him giving the names of Guest Lecturers who were working in various Government colleges in four Districts which fell within the teachers constituency. He has deposed to the effect that they are not the permanent employees of the institution where they were working. ln cross-examination it was elicited that Guest Lecturers are also lectures.

PW5-P.K. Bhavani was examined to prove Ex.P17 which was issued by her while she was working as Deputy Director of Pre-University Education at Hassan. It is a list of persons who are working in Job Oriented Courses in PU colleges whose names are also included in the voters'' list pertaining to Hassan District. All that has been elicited in cross-examination is that all those persons are working as teachers in Pre-University College in Job Oriented Section.

Mrs. Zohra Jabeen is examined as PW6. She was working as the Principal, District Institute of Education and Training, Mandya. However, she was working as a Senior Lecturer at the said place in 2006. She has issued Ex.P24. It is a list of Computer Programme Assistants, working in High Schools whose names are also included in the voters'' list of teachers constituency of Mysore District. She has further stated that they were appointed under Mahithi Sindhu Plan. They ore not appointed by the Government They are appointed by the private agencies. She also admits, she has issued Ex.P25 pertaining to Chamarajanagar District which is also within her jurisdiction. In the cross-examination it is elicited from her that the job of computer programme assistants is to teach the students computers in High Schools, in other words to impart computer training to those students.

PW7-Sri K.C. Krishna Shetty was examined to prove Ex.P26, a similar list pertaining to computer instructors. The persons in the said list were also appointed under Mahithi Sindhu scheme. It is the NOT which appointed these computer instructors to impart computer training to the students of High School. They are not the employees of the Govt. They are not the permanent employees but they were appointed to impart computer training to the students of the High School.

PW-6-Sri T. Basavaraj, Block Education Officer, Mysore North Range was examined to prove Ex.P33, a consolidated list showing the names of primary school teachers who are working in Srikanteshwara High School in Mysore. He admits having worked under PW1.

PW9-one Sri Ravi, Headmaster of Janakalyana Vasathi Proudashale, Honnapura, Periyapatna Taluk, Mysore, was examined to prove Ex.P30, a letter issued fay him showing that only five persons showed therein are working in the institution. The names of other persons mentioned in Ex. P32 other than those five persons are not working in the said school.

PW10-Smt. Bindu Kumari, Headmistress of Milinda High School, Girgoor, Piripatna Taluk, was examined to prove Ex.P29, P32 who has also spoken the fact except three teachers by name H.D. Krishna, K.C. Lokesh and H.R. Vijay, the names of others shown in the said list are not working in the said school.

PW11 Puttaraja Setty, the Headmaster of Srikanteshwara High School was also examined to the fact of 11 names found in Ex.P33.

This is the oral evidence on record. In fact all these persons were examined in order to prove the disputed documents in the case. Therefore, this oral evidence is not much of assistance except to the extent of finding out whether the documents issued by them or the documents in respect of which they spoke are proved by such evidence. Otherwise it is the contents of the documents which has to be looked into to find out whether the case of the petitioner is established. Therefore, the entire case is to be appreciated on the basis of the documentary evidence produced in the case. It is in this background it is necessary to carefully examine the documents which are produced to find out the contents of the same and how the said contents would assist the parties to the proceedings in establishing their case. It is to be remembered that the respondents did not choose to enter the witness box. they have not produced any documentary evidence in support of their case. They are content by cross-examination of the petitioners witnesses to demolish the case of the petitioners. Except suggesting to few of the witnesses that the contents of the documents issued by them are false at incorrect and that they at some point of time were working under PW1 and that the documents are issued to suit PW1 convenience and PW1 has influenced them to give such documents in support of her case in these proceedings nothing much is elicited in the cross-examination of the witnesses. Therefore, it is in this background we have to see what these documents contain and prove and whether they substantiate the case pleaded by the petitioners.

In fact, the petitioners filed LA. No. 3/2007 for PW2 for producing the marked copy of the electoral roll and the counter foil of ballot papers of all the polling booths including the details of the voters who have cast the votes in the election held on 17.6.2006 and to give evidence about the same. I.A.4/2007 was filed to recall PW2. The said applications were opposed. After contest this Court held as under:

The question whether the casting of votes by these ineligible persons has maternally affected the result of the returned candidate would arise as a matter of fact only if they have voted in the election. If they have not cast their vote, the question of going into the question whether the election of the returned candidate has materially affected would not arise. The only mode in which a party can prove actual casting of vote by ineligible persons is by producing the marked electoral roll as well as the counter fails of the ballot papers which bears the signature of such person Though the petitioners ought to have summoned those documents when they summoned PW2 and examined him, what prevailed upon the Court to allow these applications at this belated stage is, the admitted contents of the electoral roll which is produced before the Court. It contains the names of the persons. Against their names, the description show their status as well as age. It shows there are sufficient number of persons who are working in primary schools. It is a Constitutional mandate under Article 171 that a person to be eligible to vote in an election held for a Teachers Constituency, he must be working in an institution above the higher secondary far three years. It is surprising to note that primary school teachers names find a place in the electoral roll of the Teachers Constituency. Similarly they must have three years teaching experience. However, the voters age is shown as 21. Therefore, to examine the correctness of the allegations made in the election petition it is necessary to summon the aforesaid documents and recall PW2 to produce the same and speak about the said documents.

Thereafter, a sealed box (trunk) containing 15 sealed bundles and two sealed covert and 5 blank stapled trundles were produced on 10.3.2008 by the Tahsildar of Mysore. Thereafter, PW2 Seivakumar was recalled and examined on 3.4.2008 who has marked the said documents as Ex.P36 to Ex.P72. He has stated in the evidence that the said electoral roll contains marking in the first column by way of rounding off and tick marks in column No. 3 showing that those persons have actually cast vote in the election. Ex. P73 to Ex. P360 are the counter foils of the ballot papers which contain the signature of the voters who have cast the votes in the election.

Thereafter, the Court suggested to the learned Counsel for the parties to look into those documents in the presence of the Registrar Judicial, High Court of Karnataka and prepare a list of persons who were not eligible to vote and among them how many have voted under different categories. Accordingly, on 11.4.2008 a list prepared showing the number of ineligible persons with electoral roll and part number was produced. In that further they have mentioned who has voted in the election and who has not voted in the election. The brief summary is as under:

---------------------------------------------------------------------- Sl. Category at Teachers Part Total No. Total No. No. registered voted ---------------------------------------------------------------------- 1 Primary school teachers - 19 08 ---------------------------------------------------------------------- 2 Librarians - 04 03 ---------------------------------------------------------------------- 3 Part time teachers - 107 61 ---------------------------------------------------------------------- 4 JOC Lecturers - 272 224 ---------------------------------------------------------------------- 5 Mahithi Sindhu Teachers - 53 35 ---------------------------------------------------------------------- 6 Teachers who have not completed 3 years of service - 742 437 ---------------------------------------------------------------------- TOTAL 1197 768 ----------------------------------------------------------------------

It is on appreciation of the aforesaid documentary evidence and oral evidence, the issues in the case have to be answered.

Issue No. 1: The grievance of the petitioners is that the teachers who are teaching in primary school have cast their vote by virtue of their names being included in the Karnataka Teachers Constituency. To substantiate this contention the petitioners have produced Ex.P-9 and Ex.P-11. Ex.P-9 and Ex.P-10 are the letters issued by the Block Education Officer giving the name of those Primary School Teachers, included in the voters list who are not eligible to vote in the teachers constituency. The said exhibits are compared with voters list summoned by the Court from the Returning Officer. The column No. 3 of the said list also shows that they are working in Primary School. The voters list is not in dispute. What is disputed is Ex.P-9 and Ex.P-10. A comparison of Ex.P-9 and Ex.P-10 with the voters list shows what is contained in Ex.P-9 and P-10 is what is contained in the voters list. Therefore, Ex.P-9 and Ex.P-10 stands proved. The consequence that flows from the entries in these documents is, the names of persons who are teaching in primary school are included in the Karnataka South Teachers Constituency. From the aforesaid table it is clear that the total number of persons who fall under the category of primary school teachers as entered in the voters'' list is 19. Of them only 8 have voted. Ex facie, the aforesaid documents show that they are not teaching in secondary school, which is the qualification prescribed under the Constitution for a electorate of teachers constituency. These persons did not possess the qualification prescribed under Article 171 of the Constitution.

The second category is, that the electorate of teachers constituency should have atleast three years experience in teaching in a secondary school. The aforesaid table also discloses the number of persons whose names are entered in the voters'' list as teachers who have not completed three years of service which is the requirement under Article 171 of the Constitution. It is 742. But, among them only 437 have voted in the election. The number of persons who have voted in the election is also given with the electoral roll as well as their ages. The ages mentioned in the said list discloses under this category the persons who are aged 25, 26, 27 and 28 ore included. The rest are below 25, It is in this context it is necessary to see the plea in the election petition. At paragraph 10(f) it is specifically pleaded as under:

10(f) In accordance with the provisions of the Constitution and the provisions of the R.P. Act it is only persons who have put in three years of service within a period of six years commencing from the qualifying date are entitled to vote. However, several persona who are just aged 20, 23, 24 years are enrolled as voters to become a teacher. A person should have completed graduation and B.Ed. degree. In normal course, a person can acquire this qualification by a minimum age of 22 years. Thereafter, the teacher will have to put in three years of service. In other words, a person who is aged less than 2S years will not be entitled to vote. The respondents have permitted teachers and others who are aged less than 25 years to exercise their franchise. A consolidated list of such persons in different Districts is collected and marked as Annexure-N. The entire document is extracted from the voters list and the same should be read as part of the Election Petition.

Therefore, what is to be taken into consideration is the age of persons who are lout than 25 years. The person whose age is shown as 25, 26, 27 wad 28 has to be excluded. If so excluded among 437 persons who voted under this category only 143 persons are below the age of 25 years.

Yet another category of persons whose names are included in the voters list are Librarians, In the voters" list the names of four librarians are included. They are not engaged in Therefore, they do not possess the requisite qualification as prescribed under Article 171 of the Constitution for entering their names in the voters'' list. In the election out of four only three have voted.

The fourth irregularity pointed out is that the teachers called as Mahithi Sindhu Teachers who are computer trained assistants, employed by NUT as Computer Instructors to impart computer training to the students of High School. The computer training is out sourced to NUT who in turn have deputed these persons to various Government Institutions to impart computer training to the students. Their names are also included in the voters list. Ex.P-24 is the Hat of persons who are working as Computer Programme Assistants in various High Schools of Mysore Districts. Ex.P-25 pertains to Chamarajanagar District and Ex.P-26 and Ex.P-27 pertains to Mysore District. The name of the Mahithi Sindhu Teachers which are mentioned in Ex.P-26 and Ex.P-27 and Ex.P-24 are extracted in the voters list before the Court. The total number of such teachers included in the list is 53 and out of them 35 have voted. The other category are part time teachers and guest faculty teachers. Similarly, Job Oriented Course teacher who are also teaching part time. In so far as these category of teachers are concerned it is not in dispute that all of them are engaged in teaching. They possess the minimum three years experience. They are teaching in secondary school and pre-university colleges. Therefore, all the qualifications prescribed under Article 171 of the Constitution is satisfied. Therefore, it cannot be said that they do not possess the qualification prescribed under the Constitution.

Relying on Ex.P8 an endorsement issued by the Deputy Commissioner of Mysore dated 11.7.2006 that part time lecturers and guest lecturers are not eligible to be included in the voters'' list is concerned, the said endorsement cannot be construed as a rule or regulation under the Act or under the Constitution. In fact, the said endorsement refers to the guidelines issued by the Election Officer dated 4.10.2005. Article 324 of the Constitution of India provides for superintendence, directions and control of elections to be vested in the Election Commissioner. Guidelines issued by the Election Commissioner is in pursuance of the power vested in them u/s 27 of the Act of 1950. Any violation at such guidelines would not amount to non-compliance of the provisions of the Constitution. Hay be they do not satisfy the requirement of the guidelines. But, they satisfy the requirement of Constitution, requirement of Act, Rules and Orders made under the said Act. It is also not a case of they being disqualified u/s 16 of the Act of 1950. Therefore, once they do not suffer from any disqualification u/s 16 of the Act of 1950 and is not a case of non-compliance with the provisions of the Constitution or of the Act or of any Rules made under the Act, the said ineligibility cannot be gone into in an Election Petition as held by the Apex Court in several judgments.

It is in this background it is to be seen whether the votes cast by such ineligible persons have materially affected the result of the election. The result of the election should be materially effected before the High Court can declare election of the returned candidate to be void. When the grievance is, the persons who did not possess the qualification prescribed by the Constitution have voted in the election, the Court has to find out the number of voters, who did not possess the qualification has cast the votes in the election. Then find out if all the invalid votes are counted in favour of a candidate who lost the election, would they have won the election? If so, only then recounting can be ordered. On such recounting, if the said voting discloses that, the returned candidate won the election because of such votes, and if the said votes had not been cast in his favour he would have lost the election, only then it can be said that the result of the election is materially affected by such voting, which confers jurisdiction on the High Court to declare election of the returned candidate to be void and not otherwise.

From the aforesaid tabular column and the discussion it is seen that only 8 primary school teachers, 3 librarians and 143 persons who are below the age of 25 years, in all 154 persons who were ex-facie ineligible to vote in the election have voted in the election. Now, the question is whether the said votes have materially affected the election of the returned candidate.

It is not in dispute that first petitioner P. was eliminated in the 10th round and the second petitioner S.M. Gurunanjaiah was eliminated in the 11th round. The number of votes secured by the petitioners as well as the returned candidate is as under:

9th Count -------------------------------------------------------------------------------- Sl. Name of the Candidate Distribution Results Difference No. Candidate Eliminated of votes of of votes Sl. No. 9, with Mr. H.N. reference Shrikantsiah to the winning candidate at Sl. No. 6 -------------------------------------------------------------------------------- 1. S.M. Gurunanjaiah 411 3931 291 -------------------------------------------------------------------------------- 3. P. Sharadamma 9. H.N. 382 3881 341 Srikantaish -------------------------------------------------------------------------------- 6. Marithibbegowda 456 4222 --------------------------------------------------------------------------------

10th Count -------------------------------------------------------------------------------- Sl. Name of the Candidate Distribution Results Difference No. Candidate Eliminated of votes of of votes Sl. No. 3, with Mrs. P. reference Shardarmma to the winning candidate at Sl. No. 6 -------------------------------------------------------------------------------- 1. S.M. Gurunanjaiah 1083 3931 291 -------------------------------------------------------------------------------- 3. P. Sharadamma 3. P. 0 0 - Sharadamm -------------------------------------------------------------------------------- 6. Marithibbegowda 1705 5927 --------------------------------------------------------------------------------

11th Count -------------------------------------------------------------------------------- Sl. Name of the Candidate Distribution Results No. Candidate Eliminated of votes of Sl. No. 1, Mrs. S.M. Gurunanjaish -------------------------------------------------------------------------------- 1. S.M. Gurunanjaiah 0 Eliminated -------------------------------------------------------------------------------- 3. P. Sharadamma 1. S.M. 0 Eliminated Gurunanjaiah -------------------------------------------------------------------------------- 6. Marithibbegowda 2880 8807 --------------------------------------------------------------------------------

As could be seen from the 9th round after Sri H.N. Srikantaiah, a candidate, was eliminated, his votes were redistributed among the remaining three candidate, namely the petitioners and the returned candidate. Thereafter, the total number of votes secured by the second petitioner is 3,931, the first petitioner is 3881 and 4,222 to the returned candidate. Assuming for argument sake if all these 154 ineligible votes ore added to the petitioners, then their tally of votes would be 4,085 and 4,035. If 154 votes are deducted from the returned candidate his tally would be 4,068. m any event it is the first petitioner who is to be eliminated in the 10th round. Therefore, in no way 154 ineligible votes cast in the election helps the first petitioner. In the 10th count after the first petitioner was eliminated the tally of votes secured by second petitioner is 5,014/- and the returned candidate is 5,957. The difference is 913. Therefore, 154 ineligible votes would in no way affect the election of the returned candidate. It is not the case of the petitioners that all these persons who are ineligible to vote in the election have voted only to the returned candidate. Therefore, even though about 154 persons who did not possess the qualification prescribed under Article 171 of the Constitution have voted in the election and there is non-compliance with the provisions of the Constitution, as it has not materially affected the result of the election in so far as the returned candidate is concerned, no case for recounting of votes is made out.

Issue No. 2: The question is whether the persons who did not possess the qualification prescribed by the Constitution, if they have voted in the election, whether such votes are void and the reception of such votes is improper so as to constitute a ground for declaring the election of the returned candidate to be void u/s 100(1)(d)(iii).

Section 62 of the RP Act provides that every person whose name is entered in the electoral roll of any constituency shall be entitled to vote in that constituency. The electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved, Sub-section (2) of Section 62 mandates that, no person shall vote at an election in any constituency if he is subjected to any of the disqualifications referred to in Section 16 of the RP Act, 1950. In other words a person who suffers from a disqualification u/s 16 of the aforesaid Act even if his name finds a place in the voters'' list he shall not vote in the election. However, Sub-sections (3) and (4) of Section 62 deals with the votes that are void votes. Sub-section (3) states that, no person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, hit votes in all such constituencies shall be void. Similarly, Sub-section (4) provides that no person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for the constituency more than once, and if he doss to vote, all his votes in that constituency shall be void. Therefore, if such votes are received in an election it amounts to reception of any vote which is void as expressly declared by the statute. If a person''s name finds a place in the voters'' list and if such a person ware to cast hit vote, the election officer at the booth cannot refute to permit such person to cast the vote. He cannot sit in judgment at that stage to find out whether such voter is possessing qualification prescribed under the Constitution. If that be the case it cannot be said, the receipt of such vote either amounts to improper reception or reception of any vote which it void. Therefore, reception of a vote of a person whose name finds a place in the voters'' list who did not suffer from any disqualification u/s 16 of the RP Act, 1950 and whose vote cannot be termed as void under Sub-section (3) and (4) of Section 62 of the RP Act, 1951 do not constitute reception of a vote which is void. Even otherwise, as the number of such votes is hardly 154, the reception of such votes has not materially affected the election of the returned candidate as set out above, the question of declaring the election of the returned candidate as void would not arise.

Issue No. 3: The case put forth by the petitioner in this regard is the notification issued by the State Government on 28.8.1962 u/s 27(3) of the Act of 1950 specifying the type of educational institutions for the purpose of conducting elections to the legislative council in the Teachers Constituency, enumerates only the type of educational institutions without giving details of the name of the institution. Though several new educational institutions have come up subsequently, the election is held on the basis of the list prepared on 28.8.1962. As the list of all the educational institutions throughout the State of Karnataka is not prepared it invalidates the entire election as it is contrary to Article 171 of the Constitution read with Section 27 of the Act of 1950.

In support of the said contention, the learned Counsel relied on the admission of PW2, the Deputy Commissioner of Mysore District at the relevant point of time who was the Returning Officer who has categorically admitted in evidence that list of institutions are not prepared for the purpose of conducting elections. In order to appreciate this contention it is necessary to see what the constitutional requirement is under Article 171 of the Constitution,

Article 171(3)(c) prescribes qualification of teaching in such educational institutions within the State, not lower in standard than that of a secondary school, as may be prescribed by or under any law made by Parliament. Therefore, it is clear that the said provision do not prescribe list of all educational institutions in the State of not lower in standard than that of secondary school is to be prepared before holding an election, All that the said provision states is, it is only teachers who are teaching in educational institutions not lower in standard than that of secondary school are eligible to vote. In so far as Section 27(3) of the Act of 1950 on which reliance is placed, it provides that, for the purpose of elections to the legislative council of a State in the teachers'' constituencies, the State Government concerned may, with the concurrence of the Election Commission, by notification in the Official Gazette, specify the educational institutions within the State not lower in standard than that of a secondary school. This provision also do not prescribe that a list of all educational institutions should be prepared before the persons teaching in the said institutions are permitted to cast their vote in the election. Similarly, Sub-clause (1) of guideline 5 on which reliance is placed also reiterates the aforesaid provision, Therefore, the argument that a list of all educational institutions has to be prepared for the purpose of conducting elections and when admittedly such a list is not prepared the election is invalid cannot be countenanced.

Ex.P35 is the notification dated 28.8.1962 which is issued by the Government in exercise of the power conferred by Clause (b) of Sub-section (3) of Section 27 of the Act of 1950 and in supersession of the Government of Mysore notification No. EB 6819 dated 27.11.1957. It states, the Government of Mysore with the concurrence of the Election Commission of India is pleased to specify the following educational institutions within the State to be educational institutions not lower in standard than that of a secondary school for the purpose of elections to the Legislative Council of Mysore in the teachers constituency. It is generic in nature. In the said notification they have prescribed 22 institutions which are not lower in standard than that of secondary school. It is on that basis the elections are conducted. All that has to be seen is a voter who is teaching in any particular educational institution would fall within any one of the categories mentioned in the said notification. It is not the requirement of low that a notification it to be issued specifying alt the educational institutions. The requirement of law is, the notification should state what are the category of institutions which are not lower in standard than that of secondary school for the purpose of elections to the legislative council of Mysore to the Teachers'' Constituency. The said legal requirement is satisfied. Therefore, there is no merit in the said submission.

In the result, there is no merit in this petition. Hence, the following:

ORDER

(1) Election Petition dismissed

(2) No costs.