Full Judgment Text
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PETITIONER:
HARIPRASAD MULSHANKER TRIVEDI
Vs.
RESPONDENT:
V. B. RAJU AND OTHERS
DATE OF JUDGMENT28/08/1973
BENCH:
MATHEW, KUTTYIL KURIEN
BENCH:
MATHEW, KUTTYIL KURIEN
SIKRI, S.M. (CJ)
BEG, M. HAMEEDULLAH
DWIVEDI, S.N.
CHANDRACHUD, Y.V.
CITATION:
1973 AIR 2602 1974 SCR (1) 548
1974 SCC (3) 415
CITATOR INFO :
RF 1977 SC1992 (18)
ACT:
Representation of the People Act, 1950, Sections 16, 19, 21
to 24, 30 Representation of the People Act, 1951, Section
2(1)(e), 3, 100(1) (a), 100(1) (d)(i), (iii), (iv)-Question
whether returned candidate was ordinarily resident in the
constituency on whose electoral rolls he was borne not one
of jurisdictional fact-Scheme of 1950 and 1951 Acts
manifests intention of Parliament to exclude judicial
review-Jurisdictional question one of public policy as
reflected is the statute.
HEADNOTE:
The respondent No. 1, Raju, filed an election petition
against the appellant and respondent No. 5 challenging the
election to the Council of States from Gujarat, on the
ground that their names were illegally entered in the
electoral rolls., us they were not electors within the
meaning of Sec. 2(1)(e) of the Representation of People Act,
1951. It was contended that they were not ordinarily
resident in any of the parliamentary constituencies in
Gujarat State as required by Sec, 19 of the 1950 Act. The
question was treated as a preliminary question by the
Gujarat High Court. The High Court, relying on some
decisions of the Supreme Court, held that ordinary residence
in a constituency was a jurisdictional fact and the
Registration Officer cannot, by an erroneous decision,
determine the jurisdictional fact and clothe himself with
jurisdiction and enter the names of the said respondents in
the electoral rolls. The preliminary question was answered
by the High Court in favour of respondent No. 1, Raju. The
appellant before the Supreme. Court challenged the High
Court’s order on the ground that it was not competent for
the High Court to go behind the decision of the Registration
Office and decide whether his decision declaring the
respondents as ordinarily resident in the respective
parliamentary constituencies, was correct or not.
Contesting the appellant’s claim, respondent No. 1, inter
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alia contended that if the decision of the Registration
Officer regarding ordinary residence to be final on the
question of the entitlement of a citizen to be entered in
the electoral rolls, there is no recourse to a Civil Court
u/s 30 of the Act. Courts cannot imply the ouster of the
jurisdiction of Courts trying an election petition because
if tile officer decides the question wrongly, a citizen will
have no remedy to protect his statutory right to be a voter
and to contest elections. Respondent No. 1 further
contended that a wrong decision by the officer would raise a
question of jurisdictional fact and the High Court has
jurisdiction to decide such a question.
Rejecting the contentions.
HELD : (1) The intention of Parliament to oust the
jurisdiction of the Court trying an election petition to’ go
into the question whether a person is ordinarily resident in
the constituency in the electoral roll of which his name is
entered is manifest from the scheme of Representation of
People’s Act, 1950 and 1951. Art. 327 of the Constitution
gives full power to Parliament, subject to the provisions of
the Constitution, to make laws with respect to all matters
relating to or in connection with the elections including
the preparation of electoral rolls. It was, therefore, open
to Parliament to prescribe the mode of the preparation of
the electoral roll and say that it is not liable to be
challenged except in the manner provided. The Parliament
was, therefore, competent, subject to, the provisions of the
Constitution, to exclude the jurisdiction of the Civil Court
or the Tribunal trying an election petition to go into the
question whether the name of any person has been entered
therein illegally. The right to stand for election is a
statutory right and the statute can, therefore, regulate the
manner in which the right has to be enforced or the remedy
for enforcing it. The 1950 Act provides a complete code so
far as the preparation and maintenance of electoral rolls
are concerned. The Act enacts a complete machinery to
enquire into that claims and objections as regards
registration as voters and for appeals from the
549
decision of the Registering Officer. Sec. 30 of the Act
makes it clear that Civil Courts have no jurisdiction to
adjudicate the question. In these circumstances, we do not
think that it would be incongruous to infer and imply ouster
of the jurisdiction of the Court trying an election
petition. That inference is strengthened by the fact that
u/s 100(1)(d) (iv) of the 1951 Act the result of the
election must have been materially affected by non-
compliance with the provisions of the Constitution or of
that Act or of Rules and orders made under that Act in order
that High Court may declare an election to be void. Non-
compliance with the provisions of s. 19 of the Act cannot
furnish a ground for declaring an election void under that
clause. The matter is concluded by the decision of this
Court in P. R. Belagali v. B. D. Jatti (A.I.R. 1971 S.C.
1348) [555C, 557F, B]
B. V. Ramaswamy v. B. M. Krishnamuthy A.I,.R. 1963 S.C.
458 referred to.
Vaidyanath Ramjar v. Sita Ram Mahtu, A.I.R. 1970 S.C. 314,
Kabul Singh v. Kundan Singh A.I.R. 1970 S.C. 340 and
Wopansao v. L. Odyuo A.I.R 1971 S.C. 212,3, held applicable.
(2) Neither the decision of this Court in Vaidyanath
Panjiar which. took the view that violation of s. 23(3) of
the 1950 Act in entering or deleting the names of persons in
the electoral rolls after the last date for making
nomination relates to lack of power, nor the decision in
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Wopansao which also suggests that where there was a lack of
power, the question can be gone into by the court trying an
election petition, can by analogy, be extended to an entry
in the electoral roll on the basis of wrong adjudication of
the question of ordinary residence. The concept of
jurisdiction for the purpose of judicial review is one of
public policy rather than one of logic. Viewed from the
aspect of public policy as reflected in the provisions of
the 1950 and 1951 Acts, a wrong decision on a question of
ordinary residence for the purpose of entering a person,
name in the electoral roll should not be treated as a
jurisdictional error which can be reviewed either in a Civil
Court or before an election tribunal. [556G]
Anisminic v. Foreign Compensation Tribunal, (1967) 3 W. R.
L. 382: william Murray Estep v. U.S.A. [1945] 324, U.S. 114
at page 142. Dissenting judgment of Brandies J. in Letus
N. Crowell v. Charles Benson [1931] 285, U.S. 22 referred
to.
(3) The question whether a person whose name is entered in
the roll qualified under the Constitution and whether he
suffers from any of the disqualifications specified in Sec.
16 can always be one into by the Court an election petition.
The electoral roll is never conclusive or final in of these
matters. [555H]
A.I.R. 1971 S. C. page 1348 followed.
(4)Respondent No. 1 had challenged the election of
respondents Nos 4 and 5 on the ground that they were not
qualified or disqualified to be chosen to lilt the seat as
required by sec. 100(1) (a) of the 1951 Act. There was no
allegation that they were disqualified u/s 16 of the 1951
Act. As the names of respondents 4 and 5 were entered in
the electoral roll and they did not suffer an dis-
qualifications, they were electors within the definition of
s. 2(1)(a) of the 1951 Act. They were, therefore, qualified
to be chosen as candidates u/s 3 of the 1951 [Act. 1-550E]
Appeal partly allowed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2650, (NCE) of
1972.
Appeal by special leave from the judgment and order dated
the 12th/13th October, 1972 of the Gujarat High Court in
Election petition No. 9 of 1972.
B. Sen and I. N. Shroff for the appellant.
S. K. Bisaria, for respondent No. 1.
The Judgment of the Court was delivered by
MATHEW, J.-In this appeal, by special leave, the question
for consideration is whether the findings arrived at by the
High Court
550
of Gujarat in Election Petition No. 9 of 1972 on issues No.
1 and 5, which were tried as preliminary issues, are
correct.
An election to elect four members of the Council of States
from the State of Gujarat was to be; held on April 8, 1972.
The appellant and respondents No. 1 to 5 filed nominations.
On Scrutiny, the returning officer held them to be valid.
On April 8, 1972, the election was held at Gandhi Nagar and
the appellant and respondents 2, 3 and 5 were declared
elected.
On May 1, 1972, respondent no. 1 filed the election petition
to declare the elections of the appellant and respondents 2.
3 and 5 void.
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The main ground urged in the election petition for declaring
the election of respondents 4 and 5 in the election
petition’ (respondent 5 and the appellant respectively here)
void-with which alone we are concerned in this appeal-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 illegally entered in the
electrol roll of the respective constituency in Gujarat and
as they were not ’electors’ within the meaning of s. 2(1)(e)
of the Representation of People Act, 1951, they were not
eligible to become candidates in the election. Respondent
No. 1 also raised several other contentions in support of
the declaration prayed for.
The court framed issues No. 1 to 5 and tried them
preliminarily and entered findings thereon in favour of
respondent no. 1 Mr. Raju.
In this appeal, the appellant challenges the correctness of
the findings on issues no. 1 and 5. These issues are :
"1. Whether there is misjoinder of parties and
causes of action?
5. Whether this Court has jurisdiction to
decide whether the entries in the electoral
roll regarding respondent No. 4 and/or
respondent No. 5 are valid or not ?"
Mr. B. Sen, Counsel for the appellant, did not address any
argument as regards the correctness of the finding on issue
No. 1.
We are therefore only concerned with the correctness of the
finding on issue No. 5. As already stated, the contention on
the basis of which this issue was raised was that
respondents No. 4 and 5 in the election petition were ’not
ordinarily resident in any of the parliamentary
constitutencies in the State of Gujarat and, as they had not
fulfilled the condition for being entered in the electoral
roll of any parliamentary constituency in Gujarat, they were
not electors within the meaning of S. 2(1)(e) of the
Representation of the People Act, 1951, and were ineligible
to stand as candidates in the election.
The High Court on a review of the decisions of this Court
found that the Court has jurisdiction to go into the
question whether respondents No. 4 and 5 in the election
petition were ordinarily resident in any of the
parliamentary constituencies in the State of Gujarat as that
was a condition precedent to the registering officer getting
jurisdiction to enter their names in the electoral roll.
The reasoning of the Court Wig that ordinary residence in a
constituency was a jurisdictional fact
551
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 s. 19 of
the Representation of the People Act, 1950. It is,
therefore, necessary to examine the decisions of this Court
to see whether the finding of the High Court is justified by
those decisions.
Before doing so, we think it proper to refer to the
provisions of the Constitution and the Representation of the
People Act, 1950 and 1951 (hereinafter called the ’1950 Act
and ’1951 Act’ respectively) which have a bearing on the
subject.
Article 326 of the Constitution provides that the elections
to the House of the People and to the Legislative Assembly
of every State shall be on the basis of adult suffrage; that
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is to say, every person. who is a citizen of India and who
is not less than twenty-one years. of age on- such date as
may be fixed in that behalf by or under any law made by the
appropriate legislature and is not otherwise disqualified
under the Constitution or any law made by the appropriate
legislature on the ground of non-residence, unsoundness of
mind, crime or corrupt or illegal practice, shall be
entitled to be registered as a voter at any such election.
Article 327 states that subject to the provisions of the
Constitution, Parliament may by law make provision with
respect to all matters relating to, or in connection with,
elections to either House of Parliament or to the House or
either House of the Legislature of a State including the
preparation of electoral rolls, the delimitation of
constituencies and all other matters necessary for securing
the due constitution of such House or Houses.
Section 3 of the 1951 Act provides for qualification for
membership of the Council of States : "A person shall not be
qualified to be chosen as a representative of any State or
Union Territory in the Council of States unless he is an
elector for a Parliamentary constituency in that State or
territory". Section 2(1) (e) of that Act define,,; an
"2(1) (e)-’elector’ in relation to a
constituency means a person whose name is
entered in the electoral roll of that
constituency for the time being in force and
who is not subject to any of the
disqualifications mentioned in s.16 of the
Representation of the People Act, 1950’.
Section 16 of the 1950 Act lays down the disqualifications
for registration in an electoral roll and it provides that a
person shall be disqualified for registration in an
electoral roll if he is not a citizen of India or is of
unsound mind and stands so declared by a competent court or
is for the time being disqualified from voting under the,
provisions of any law relating to corrupt practices and
other offences in connection with elections.’ Sub-section
(2) of s.16 provides that the name of any person who becomes
so disqualified after registration shall forthwith be struck
off the electoral roll in which it is included,
Section 19 of the 1950 Act lays down the conditions of
registration.
It provides
"Subject to the foregoing provisions of this
Part, every
person who
552
(a) is not less than twenty-one years of age
on the qualifying date, and
(b) is ordinarily resident in a
constituency, shall be entitled to be
registered in the electoral roll for that
constituency".
Section 30 of the 1950 Act bars the jurisdiction of the
Civil Court to entertain or adjudicate upon any question
whether any person is or is not entitled to be registered in
an electoral roll for a constituency; or to question the
legality of any action taken by or under the authority of
an electoral registration officer, or of any decision given
by authority appointed under the Act for the revision of any
such roll.
Section 100(1)(a) of the 1951 Act provides that the election
of a returned candidate can be declared void by the High
Court on the ,ground that on the date of his election, the
returned candidate was not qualified to be chosen to fill
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the seat in question either in the light of the provisions
of the Constitution or in the light of the provisions of the
Act.
Under s.100(1)(d)(i) and (iv) of the 1951 Act, the election
of a returned candidate can be declared to be void by the
High Court on the ground that the result of the election, in
so far as it concerns the returned candidate has been
materially affected (i) by the improper Acceptance of any
nomination or (ii) by any noncompliance with the provisions
of the Constitution or of the Act or any rules or orders
made under the 1951 Act.
In B. M. Ramaswamy v. B. M. Krishnamurthy (1) this Court was
as concerned with the provisions of the Mysore Village
Panchayat and Local Boards Act, Act 10 of 1959. Under the
provisions of that Act, the relevant part of the electoral
roll of the Mysore Legislative Assembly was deemed to be the
list of voters for the panchayat constituency and the
secretary of the panchayat bad to maintain’ a duty
authenticated separate, list of voters of the said
constituency. It was because of this that this Court was
required in that case to consider the question of the
applicability of the provisions of the 1950 Act. Sub ba
Rao, J. in delivering the judgment of the Court said that no
civil court has jurisdiction to question the legality of any
decision taken by or under the authority of the electoral
registration officer as the terms of S. 30 of the 1950 Act
were clear that the action of the registration officer in
including the name of the appellant there in the electoral
roll, though illegal, cannot be questioned in a civil court
and that it could be rectified only in the manner prescribed
by law or by resorting to any other proper remedy. This
Court in effect held that the Court trying an election
petition has no jurisdiction to go behind the electoral roll
and find out whether the name of any person entered therein
was illegally entered.
In Baidyanath Panjiar v.Sita Ram Mahto,(2) the question was
whether in view of the provisions of s.23(3) of the 1950
Act, tile name of any person can be entered in the electoral
roll subsequent to the last date for making nominations and
whether that question can be gone into by the court when
trying an election petition. Section 23(3) of, the 1950 Act
provides that no amendment, transposition ar deletion of any
entry shall be made under s.22 and that no direction ’for
the inclusion of a name in the electoral roll of a
constituency shall
(1) A.I.R 1963. S. C. 458.
(2) A. T. R. 1970 S. C. 314.
553
be given after the last date for making nominations for an
election in that constituency or in the parliamentary
constituency within which that constituency is comprised and
before the completion of that election. The submission
before this Court was that 35 names were entered in
violation of the provisions of s.23(3) and that was without
power and, therefore, the votes cast by these persons were
invalid.. Hegde, J. in delivering the judgment of the Court
said that there was no power in the registering officer to
include any name or delete any name in violation of s.23(3),
as the sub-section gives a mandate to the electoral
registration officer not to amend, transpose, delete any
entry in the electoral roll of the constituency after the
last date for making nomination. for election in that
constituency and before the completion of that election. He
held that if any name is entered or deleted it was a case
where there was a lack of power and not a case where. there
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was an irregular exercise of it and, therefore, the court
trying the election petition could go into the question
whether there was violation of s.23(3) or not.
In Kabul Singh v. Kundan Singh,(1) the question before this
Court was whether the vote of a person whose name was
entered in the electoral roll of the constituency after the
last date for making the nomination was valid. In view of
the earlier decision in Baidyanath v. Sita Ram(2) this,
Court held that the registering officer has no power to
enter his name in the electoral roll in violation of the
mandatory provision of s. 23(3) and as it was a case of lack
of power, the court trying the election petition had
jurisdiction to go into the question. The learned Judge, in
the course of the judgment, was careful to add that the
right to vote being purely a statutory right, the validity
of any Vote IIas to be examined on the basis of the
provisions of the relevant Acts and that in view of s.30 of
the 1950 Act, Civil Court,-, have no jurisdiction to
entertain or adjudicate upon any question whether any person
is or is not entitled to register himself in the electoral
roll in a constituency or to question the illegality of the
action taken by or under the authority of the electoral
registration officer or any decision given by any authority
appointed under that Act for the revision of any such roll.
He also said that sections 14 to 24 of the 1950 Act are
integrated provisions which form a complete Code by
themselves in the matter of preparation and maintenance of
electoral rolls and that entries found in the rolls are
final and that they are not open to challenge either "before
a Civil Court or before a tribunal which considers the
validity of any election".
In P. R. Belagali v. B. D. Jatti(3), the question. was about
the validity of the election of B. D. Jatti to the
legislature of the State in question from Jamkhandi
constituency and one of the contentions was that as he was
not an ordinary resident in Jamkhandi constituency, he was
not an elector in that constituency and, therefore, the
election was void. Grover, J. delivering the judgment of
this Court observed that in order to stand for election to
the legislative assembly of a State, a person must be an
elector in any assembly constituency in that State, and he
must not be subject to any of the disqualifications men-
tioned in s. 16 of the 1950 Act or the disqualifications
given in Chapter III of the Act. He also observed that the
condition of being ordinarily
(1) A.I.R. 1970 S.C. 340. (3) A.I.R. 1971 S.C. 1348. (2)
A.I.R. 1970 S.C. 314.
554
resident in a constituency for the purpose of registration
has nothing to do with the disqualifications for
registration which are prescribed s. 16 of the 1950 Act and
which alone are relevant to the definition the word
’elector’ occurring in s. 2 (1) (e) of the Act. He further
said that the entire scheme of the 1950 Act is that entries
made in an electoral roll of a constituency can be
challenged only in accordance with the machinery provided by
it and not in any other forum unless some question of
violation of the provisions of the Constitution is involved,
The Court, therefore, held that the question whether Jatti
was ordinarily resident in Jamkhandi constituency during the
material period and was entitled to be registered in the
electoral roll of that constituency could not be the subject
of an enquiry except in accordance with the pro visions of
the 1950 Act and that only on the non-compliance with the
provisions of the Constitution or of the 1951 Act or of any
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rules or orders made under that Act could the High Court
declare the election of the returned candidate to be void
under clause (1) (d) (iv) of 100 of the 1951 Act. The
attention of the Court was not drawn to the decision in
Baidyanath v. Sita Ram(1), where it was held that non-
compliance with the provisions of s. 23 (3) of the 1950 Act
would result in improper reception, refusal, rejection of
vote which is void and would, therefore, be ground for
avoiding the election under 100 (1)(d)(iii) of the 1951 Act.
In Wopansao v. N. L. Odyuo and others(2) this Court after
referring to the decision in Baidyanath v. Sita Ram(3) held
that lack of power of the electoral registration officer to
register or not to register persons as voters resulting from
violation of the mandatory provisions of the relevant
statutes might lead to improper reception, refusal or
rejection of a vote and would, therefore, be a ground for’
avoiding the. election under s. 100 (1) (d) (iii) of the
1951 Act.
Mr. Raju, respondent No. 1 submitted that the right of a
citizen who fulfils the requirement of law as to age and who
is not subject to any disqualifications as provided by law
passed by Parliament to be registered as a voter, is a
constitutional right granted by article 326 and the remedy
to enforce the right in a civil court cannot be taken away
by Parliament by law and therefore s. 30 of the 1950 Act is
ultra vires the Constitution. He also said that if the
decision of the registering officer regarding ordinary
residence in a Constituency were to be final on the question
of the entitlement of a citizen to be entered in the
electoral roll and if he is to have no recourse to a civil
court in case the officer decides the question wrongly the
rule of law which is a fundamental postulate of our
democratic polity would be seriously impaired and,
therefore, implied ouster of the jurisdiction of the Court
trying an election petition to go into the question cannot
be inferred.
We are not concerned in this with the constitutional
validity of s. 30 of the 1950 Act. for the reason that no
citizen has sought to enforce his constitutional right of
being registered as a voter in a court and has been denied
it. It is a wise tradition with court not to adjudicate a
constitutional question unless it is absolutely necessary to
the disposal of the case in band.
(1) A.I.R. 1970 S.C. 314.
(2) A.I.R. 1971 S.C.
555
"Supremacy of law demands that there shall be an opportunity
to have some court to decide whether an erroneous rule of
law Was applied and whether the proceedings in which facts
were adjudicated were conducted regularly". This remark was
made in St. Joseph Slot* Yards Co. v. United States(1), by
Justice Brandeis in his dissenting opinion. In that case a
public utility was challenging a rate order as confiscatory.
’-It is entirely clear that the remark is not the law with
respect to much administrative action. The remark may be
the law with respect to some administrative action, but if
so,. that action is not clearly identifiable."(2) But the
question still remains whether die Brandeis remark has
validity for some types of administrative action, and if so,
what types. On this question the opinions are singularly
unhelpful. One may surmise that the Brandeis remark has
validity in the context in which it was uttered-a public
utility rate case in which confiscation was claimed.(3)
Article 327 gives full power to Parliament subject to the
provisions of the Constitution to make laws with respect to
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all matters relating to or in connection with elections
including the preparation of electoral rolls. It was,
therefore, open to Parliament to prescribe the mode of the
preparation of the electoral roll and say that it is not
liable to be challenged except in the manner provided.
Parliament was, therefore, competent, subject to the
provisions of the Constitution, to exclude the jurisdiction
of the civil- court or the tribunal trying an election
petition to go into the question whether the name of any
person has been entered therein illegally. The right to
stand for election is a statutory right and the statute can
therefore regulate the manner in which the right has to be
enforced or the remedy for enforcing it. We think that the
1950, Act provides a complete code so far as the preparation
and maintenance of electoral rolls are concerned. The Act
enacts a complete machinery to enquire into claims and
objections as regards registration as voter and for appeals
from the decision of the registering officer (see sections
21 to 24 of the 1950 Act both inclusive). Elaborate rules
have also been made for inquiry into claims to be registered
as voters and for considering and disposing of objections
thereto (see rules 12 to 24 of the Registration of Electoral
Rules). The definition of the word ’elector’ in S. 2(1)(e)
of the 1951 Act would indicate that a person whose name is
actually entered in the electoral roll for the time being
and who is not subject to any of the disqualifications in s.
16 would be an elector. Any person who is a citizen of
India and who has attained the age as prescribed by law,
subject to the minimum as provided in article 326, is
entitled to be registered as a voter in the roll of
electors. This is the positive way of expressing
eligibility for registration as a voter. He should not also
be subject to any of the disqualifications prescribed by
Parliament by law on the grounds mentioned in the article.
The Parliament has proscribed in s. 16 of the 1950 Act the
disqualifications.
The question whether a person whose name is entered in the
electoral roll is qualified under the Constitution and
whether he suffers
(1) 298 U. S. 38.
(2) See Kenneth Culo Davis, "Administrative Law Treatise-".
Vol 4, p. 98.
(3) see Kenneth CulpDavis, "Administrative LawTreatise,
Vol. 4, p. 102.
556
from; any of the disqualifications specified in s. 16 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 (see the’ decision, in P. r.
Belagali v. B. D. Jatti (supra). The argument that the
question whether a person is ordinarily resident in a
constituency for the purpose of registering him as a voter
is a jurisdictional fact and therefore the registering
officer cannot by a wrong decision give himself jurisdiction
to enter his name in the electoral roll, revives all the
casuistic difficulties spawned by the doctrine of
jurisdictional fact and the practical difficulty of
formulating a test to distinguish jurisdictional fact from
other facts. See in this connection the concurring judgment
of Justice Frankfurter in William Murray Estep v. U.S.A.(1)
and the dissenting judgment of Brandeis, J. in Letus N.
Crowell v. Charles Benson(2). The basis for identifying
jurisdictional facts has never been clarified. And,
reflection on many- of the reported decisions dealing with
the subject will only serve to induce a feeling of
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desperation. We infer an intention to witfihold judicial
review in the situation with which we are concerned as we
think that the Parliament was acting upon the conviction
that it was dealing with matters which were fully lodged in
the exclusive jurisdiction of the registering officers and
the appellate authorities.
As already stated, the prayer in the election petition was
to declare the, election of the respondents 4 and 5 void
under sub-section 100(1) (a) for thee reason that these
respondents were not qualified, or, disqualified to be
chosen to fill the seat under the Constitution or the 1951
Act. There was no case for respondent No. 1 that these
respondents suffered from any of the disqualifications
mentioned in s. 16. Nor was there any ground taken in the
election petition that they had not the positive
qualifications as required by the Constitution or the Acts.
The only question is whether the ground taken in the
election petition that since these respondents were not
ordinarily resident in any of the Parliamentary
constituencies of Gujarat, they had not fulfilled one of the
conditions necessary to be satisfied for registration in the
electoral roll, can be gone into by-the High Court in trying
an election, petition.
We think that neither the decision of this Court in
Baidyanath Panjiar v. Sita Rain Mahto (supra) which took the
view that violation of s. 23(3) of the, 1950 Act in entering
or deleting the names of persons in the electoral rolls
after the last date for making nomination relates to lack of
power nor the decision in Wopansao v. N. L. Odyuo (supra)
and others which also suggests that where there, was lack of
power, the question can be gone into by the court trying an
election petition, can, by analogy, be extended to an entry
in the electoral roll on the basis of a wrong adjudication
of the question of ordinary residence. Though the dividing
line between lack of jurisdiction or power and erroneous
exercise of it has become thin with the decision of the
House of Lords in The Anisminic Case(3) we do not think that
the distinction between the two has been completed wiped
out. We are aware of
(1) 327 U. S. 114, 142.
(3) 1967 (3) W. L. R. 382.
(2) 285 U. S. 22,
557
the difficulty in formulating an exhaustive rule, to tell
when there, is lack of power and when there is an erroneous
exercise of it. The difficulty has arisen because the word
"jurisdiction" is an expression which is used in a variety
of senses and takes its colour from its context, (see per-
Diplock, J. at p. 394 in the Anisminic Case). Whereas th e
’pure’ theory of jurisdiction would reduce jurisdictional
control to a vanishing point, the adoption of a narrower
meaning might result in a more useful legal concept even
though the formal structure of law may lose something of its
logical symmetry. "At bottom the problem of defining the
concept of jurisdiction for purpose of judicial review has
been one of public policy rather than one of logic".(1) And
viewed from the aspect ofpublic po.icy as reflected in
the provisions. of the 1950 and 1951 AC,.-." we do not think
that a wrong decision on a question of ordinary residence
for the purpose of entering a person’s name in the
electoral roll should be treated as a jurisdictional
error which can be judicially reviewed either in a civil
court or before an election tribunal.
And concerned as we are in this case only with the question
whether the High Court trying an election petition has
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jurisdiction totry and decide whether these respondents
were ordinarily resident inthe respective parliamentary
constituency in Gujarat, we should think the matter is
concluded by the decision of this Court in Jatti’s case
(supra).
The requirement of ordinary residence, as a condition for
registration in the electoral rolls in one created by
Parliament by s. 19 of the 1950 Act, and as we said, we see
no reason why Parliament should have no power to entrust to
an authority other than a court or a tribunaltrying an
election petition the exclusive power to decide the matter
finally. We have already referred to the observation of this
Court inKabut Singh’s case (supra) that sections 14 to 24
of the 1950 Act are integrated provisions which form a
complete code in the matter of preparation and maintenance
of electoral rolls Section 30 of that Act makes it clear
that civil courts have no power to adjudicate the question.
In these circumstances we do not think that it would be
incongruous to infer an implied ouster of the jurisdiction
of the court trying an election petition to go into the
question. That inference is strengthened by the fact that
under s. 100 (1) (d) (iv) of the 1951 Act the result of the
election must have been materially acted noncompliance-with
the provisions of the Constitution or of that Act or of the
rules, orders made under that Act in order that High Court
may declare an election to be void. Non-compliance with the
provisions of s. 19 of the 1950 Act cannot furnish a ground
for declaring an election void under that clause.
We, therefore, return to the question whether these
respondents were not qualified or were disqualified to be
chosen to fill the seat under the Constitution or the 1950
Act or the 1951 Act. As we said, there was no allegation
that they were disqualified under s. 16 of the 1950 Act.
Nor was there any ground taken that they were not qualified
in the sense of their being not citizens or under the age as
required. As their names were entered in the electoral roll
and as they did ’not suffer
(1) S. A. Smith. "Judicial Review of Administrative
Action", 2nd Edn., p. 98.
10-3S2 Supi. C 1/74
558
from any of the disqualifications mentioned in s. 16 of the
1950 Act, they were electors within the definition of the
term in s. 2(1) (e) of the 1 951 Act. They were, therefore,
qualified to be chosen as candidates under s. 3 of the 1951
Act.
We think that the intention of the Parliament to oust the
jurisdiction of the court trying an election petition to go
into the question whether a person is ordinarily resident in
the constituency in the electoral roll of which his name is
entered is manifest from the scheme of the 1950 and the 1951
Acts. It would defeat the object of the 1950 Act if the
question whether a person was ordinarily resident in a
constituency were to be tried afresh in a court or tribunal,
trying an election petition.
We reverse the finding of the High Court on issue No. 5 and
allow the appeal to that extent and dismiss it in other
respects. In the circumstances we make no order as to
costs.
S.B.W. Appeal partly allowed.
559