# Lok Prahari Through Its General Secy. S.N. Shukla [P.I.L.] v. Union Of India Thr. Secy. Legislative Deptt. Ministry Of Law &

- **Citation:** (2016) 4 ILRA 310
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-18
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lok-prahari-through-its-general-secy-s-n-shukla-p-i-l-v-union-of-india-thr-secy-43630
- **Pages:** 9

## Headnote

The writ petition by LOK PRAHARI, a society registered under the Societies Registration Act 1860 seeks a
declaration that the Representation of the People (Amendment and Validation) Act, 2013 is ultra vires and
unconstitutional. In pursuance of the provisions of Article 326 of the Constitution, Parliament enacted the
Representation of the People Act 1950-1951. Part II-B of the Act of 1950 provides for electoral rolls for
parliamentary constituencies. Part III provides for electoral rolls for assembly constituencies. The electoral roll
for every parliamentary constituency consists of the electoral rolls for all the assembly constituencies
comprised within that parliamentary constituency. Under Section 15, for every assembly constituency, the
electoral roll is prepared in accordance with the provisions of the Act of 1950 under the superintendence,
direction and control of the Election Commission. Section 16 provides for disqualifications for registration in an
electoral roll and is in the following terms:"16. Disqualifications for registration in an electoral roll.-(1) A
person shall be disqualified for registration in an electoral roll if he-

## Text

310 INDIAN LAW REPORTS ALLAHABAD SERIES
9. It is then contended by learned counsel for respondent UPSIDC that UPSIDC challenged similar
award in LAR No. 690 of 2002 in appeal but the same has been dismissed by this Court holding market
value of acquired land at Rs. 45/- per sq. yard. Hence, no enhancement of market value is now permissible at
the instance of claimant-appellant.

10. It is true that one of awards in which market value was determined at Rs. 45/- per sq. yard was
challenged at the instance of UPSIDC in LAR No. 690 of 2002 and said appeal has been dismissed by this
Court but it does not mean that this Court has seized market value of acquired land at Rs. 45/- per sq. yard
and the same cannot be enhanced. Dismissal of appeal of UPSIDC against award in LAR No. 690 of 2002,
means that Court did not approve contention of UPSIDC that market value should have been lesser than Rs.
45/- per sq. yard. UPSIDC came to this Court, pleading that compensation should have been determined at a
lesser rate, which has not been approved by this Court but dismissal of appeal of UPSIDC would not mean
that Court has also approved the proposition that market value of acquired land cannot be and should not be
higher than Rs. 45/- per sq. yard, since that was not the question involved in appeal preferred by UPSIDC.

11. Thus the mere fact that appeal of UPSIDC has been dismissed, would not mean that market
value determined by Reference Court cannot be considered for enhancement in the light of other awards
which have been made in respect of acquired land which was subject matter of same acquisition proceedings,
as is the case in this appeal. It is also not in dispute that acquired land of appellant is similarly placed with the
land acquired and was subject matter of adjudication in LARs No. 33 of 1992, 1 of 1993 and 40 of 1993.

12. In the light of above discussion and considering the fact that exemplar awards relied by appellant
had been rejected for wholly illegal and invalid reasons, we have no hesitation in holding that impugned
award of the judgment dated 23.05.2002 cannot be sustained.

13. In the result, this appeal is allowed. We set aside impugned award/judgment dated 23.5.2002,
and direct Reference Court to decide the matter again considering awards in other LARs including LAR No.
1 of 1993 (Paper No. 35 GA) filed by appellant. Reference Court shall pass fresh award expeditiously but in
any case not beyond six months from the date of production of a certified copy of this order before it.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.04.2016

BEFORE

THE HON'BLE DR. DHANANJAYA YESHWANT CHANDRACHUD, C.J.
THE HON'BLE RAJAN ROY, J.

Misc. Bench No.- 800 Of 2014

Lok Prahari Through Its General Secy. S.N. Shukla [P.I.L.] ...Petitioner
Versus
Union Of India Thr. Secy. Legislative Deptt. Ministry Of Law & ...Respondent
4 All. Lok Prahari Through Its General Secy. S.N. Shukla [P.I.L.] Vs Union Of India
 Thr. Secy. Legislative Deptt. Ministry Of Law &
311
Counsel for the Petitioner:
S.N. Shukla (In Person)

Counsel for the Respondent:
A.S.G., Ashok Mehta, Alok Mathur, Manish Mathur

The writ petition by LOK PRAHARI, a society registered under the Societies Registration Act 1860 seeks a
declaration that the Representation of the People (Amendment and Validation) Act, 2013 is ultra vires and
unconstitutional. In pursuance of the provisions of Article 326 of the Constitution, Parliament enacted the
Representation of the People Act 1950-1951. Part II-B of the Act of 1950 provides for electoral rolls for
parliamentary constituencies. Part III provides for electoral rolls for assembly constituencies. The electoral roll
for every parliamentary constituency consists of the electoral rolls for all the assembly constituencies
comprised within that parliamentary constituency. Under Section 15, for every assembly constituency, the
electoral roll is prepared in accordance with the provisions of the Act of 1950 under the superintendence,
direction and control of the Election Commission. Section 16 provides for disqualifications for registration in an
electoral roll and is in the following terms:"16. Disqualifications for registration in an electoral roll.-(1) A
person shall be disqualified for registration in an electoral roll if he-
1. Is not a citizen of India; or
2. Is of unsound mind and stands so declared by a competent court; or
3. Is for the time being disqualified from voting under the provisions of this relating to corrupt
practices and other offences in connection with elections.
(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the
electoral roll in which it is included:Provided that the name of the any person struck off the electoral roll of a
constituency by reason of a disqualification under clause (c) of sub-section (1) shall forthwith be reinstated in
that roll if such disqualification is, during the period such roll is in force, removed under any law authorizing
such removal."

Apart from challenging the constitutional validity of Act 29 of 2013, the petitioner has sought a mandamus to
the Election Commission of India to issue an order under Article 324 of the Constitution in terms of its
'decision' dated 23 May 2008 to the effect that (i) at the time of the revision of electoral rolls, the names of
persons, except preventive detenues, in jail for six months or more be deleted from electoral rolls under
Section 22 of the Act of 1950; and (ii) nomination papers of such persons be rejected.
However, we make it clear that the representation filed by the petitioner before the Chief Election Commission
can be considered and disposed of in accordance with law.

Held:Para- "A right to vote is a statutory right, the law gives it, the law takes it away. Persons
convicted of crime are kept away from elections to the Legislature, whether to State Legislature
or Parliament, and all other public elections. The Court has no hesitation in interpreting the
Constitution and the Laws framed under it, read together, that persons in the lawful custody of
the Police also will not be voters, in which case, they will neither be electors. The law
temporarily takes away the power of such persons to go anywhere near the election scene. To
vote is a statutory right. It is privilege to vote, which privilege may be taken away. In that case,
the elector would not be qualified, even if his name is on the electoral rolls. The name is not
struck off, but the qualification to be an elector and the privilege to vote when in the lawful
custody of the police is taken away."

Case Law discussed: Hari Singh vs. Military Estate Officer5, I.N. Saksena vs. State of Madhya
Pradesh6, Manohar Lal Sharma vs. Union of India10, Lok Prahari vs. Election Commission Of India11.
312 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Dr D Y Chandrachud, C.J.)

1. The writ petition by LOK PRAHARI, a society registered under the Societies
Registration Act 1860 seeks a declaration that the Representation of the People (Amendment and
Validation) Act, 2013 is ultra vires and unconstitutional.

2. In pursuance of the provisions of Article 326 of the Constitution, Parliament enacted the
Representation of the People Act 1950-1951. Part II-B of the Act of 1950 provides for electoral
rolls for parliamentary constituencies. Part III provides for electoral rolls for assembly
constituencies. The electoral roll for every parliamentary constituency consists of the electoral rolls
for all the assembly constituencies comprised within that parliamentary constituency. Under
Section 15, for every assembly constituency, the electoral roll is prepared in accordance with the
provisions of the Act of 1950 under the superintendence, direction and control of the Election
Commission. Section 16 provides for disqualifications for registration in an electoral roll and is in
the following terms:

"16. Disqualifications for registration in an electoral roll.--
(1) A person shall be disqualified for registration in an electoral roll if He--

(a) is not a citizen of India; or
(b) is of unsound mind and stands so declared by a competent court; or
(c) is for the time being disqualified from voting under the provisions of this
relating to corrupt practices and other offences in connection with elections.

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

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

3. Section 19 provides that subject to the foregoing provisions of the Part, every person
who is (a) not less than eighteen years of age on the qualifying date; and (b) ordinarily resident in a
constituency shall be entitled to be registered in the electoral roll for that constituency. The
expression "ordinarily resident" is defined in Section 20. Section 21 provides for the preparation
and revision of electoral rolls. Section 22 provides for the correction of entries in electoral rolls and
is in the following terms:

"22. Correction of entries in electoral rolls.--If the electoral registration officer
for a constituency, on application made to him or on his own motion, is satisfied after such inquiry
as he thinks fit, that any entry in the electoral roll of the constituency-
4 All. Lok Prahari Through Its General Secy. S.N. Shukla [P.I.L.] Vs Union Of India
 Thr. Secy. Legislative Deptt. Ministry Of Law &
313
(a) is erroneous or defective in any particular,

(b) should be transposed to another place in the roll on the ground that the person
concerned has changed his place of ordinary residence within the constituency, or

(c) should be detected on the ground that the person concerned is dead or has
ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in
that roll,

the electoral registration officer shall, subject to such general or special directions,
if any, as any be given by the Election Commission in this behalf, amend, transpose or delete the
entry after proper verification of facts in such manner as may be prescribed:

Provided that before taking any action on ground under clause (a) or clause (b) or
any action under clause (c) on the ground that the person concerned has ceased to be ordinarily
resident in the constituency or that he is otherwise not entitled to be registered in the electoral roll
of that constituency, the electoral registration officer shall give the person concerned a reasonable
opportunity of being heard in respect of the action proposed to be taken in relation to him after
proper verification of facts in such manner as may be prescribed."

4. Part II of the Representation of the People Act 19512 provides for qualifications and
disqualifications. Chapter I provides for qualifications for membership of Parliament. Chapter II
provides for qualifications for membership of State Legislatures.

5. Sections 3 and 4 which govern the qualifications for membership of the Council of
States and the House of the People respectively require that a person to be qualified to be chosen,
must be an elector for a parliamentary constituency. Section 5 which provides for the
qualifications for membership of a Legislative Assembly, mandates that a person must be an
elector from an assembly constituency in the State. The expression "elector" is defined in Section
2 (e) of the Act of 1951 in the following terms:

"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 section 16 of the Representation of the People Act, 1950 (43 of
1950);]"

Section 62 provides as follows:

"62. Right to vote.--(1) No person who is not, and except as expressly provided by
this Act, every person who is, for the time being entered in the electoral roll of any constituency
shall be entitled to vote in that constituency.
314 INDIAN LAW REPORTS ALLAHABAD SERIES
(2) No person shall vote at an election in any constituency if he is subject to any of
the disqualifications referred to in section 16 of the Representation of the People Act, 1950 (43 of
1950).

(3) 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, his votes in all such
constituencies shall be void.

(4) 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 that constituency
more than once, and if he does so vote, all his votes in that constituency shall be void.

(5) No person shall vote at any election if he is confined in a prison, whether under
a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police:

Provided that nothing in this sub-section shall apply to a person subjected to
preventive detention under any law for the time being in force:

Provided further that by reason of the prohibition to vote under this sub-section, a
person whose name has been entered in the electoral roll shall not cease to be an elector.

(6) Nothing contained in sub-sections (3) and (4) shall apply to a person who has
been authorised to vote as proxy for an elector under this Act in so far as he votes as a proxy for
such elector."

6. The second proviso to Section 62 of the Act of 1951 was introduced with effect from 10
July 2013 by amending Act 29 of 2013. The background in which Parliament enacted the
Representation of the People (Amendment and Validation) Act, 2013 is a matter which lies at the
heart of these proceedings.

7. The Patna High Court in a judgment3 delivered on 30 April 2004 held that a person who
is in lawful custody of the police will not be a voter within the meaning of Section 62 (5) and hence
will not be an elector. The judgment of the Patna High Court, insofar as is material, has been
extracted in the judgment of the Supreme Court delivered on 10 July 2013 affirming that decision
in The Chief Election Commissioner vs. Jan Chaukidar (Peoples Watch)4. The Patna High
Court held thus:

"A right to vote is a statutory right, the law gives it, the law takes it away. Persons
convicted of crime are kept away from elections to the Legislature, whether to State Legislature or
Parliament, and all other public elections. The Court has no hesitation in interpreting the
Constitution and the Laws framed under it, read together, that persons in the lawful custody of the
Police also will not be voters, in which case, they will neither be electors. The law temporarily
takes away the power of such persons to go anywhere near the election scene. To vote is a statutory
4 All. Lok Prahari Through Its General Secy. S.N. Shukla [P.I.L.] Vs Union Of India
 Thr. Secy. Legislative Deptt. Ministry Of Law &
315
right. It is privilege to vote, which privilege may be taken away. In that case, the elector would not
be qualified, even if his name is on the electoral rolls. The name is not struck off, but the
qualification to be an elector and the privilege to vote when in the lawful custody of the police is
taken away."

8. Affirming the judgment of the Patna High Court, a Bench of two learned Judges of the
Supreme Court in a decision rendered on 10 July 2013 held thus:

"...We have heard learned counsel for the parties and we do not find any infirmity
in the findings of the High Court in the impugned common order that a person who has no right to
vote by virtue of the provisions of sub-section (5) of Section 62 of the 1951 Act is not an elector
and is therefore not qualified to contest the election to the House of the People or the Legislative
Assembly of a State."

9. The Statement of Objects and Reasons for introduction of the amendment and validation
bill in Parliament stated that though a petition for review of the judgment of the Supreme Court was
filed, Government was of the view that there was a need for suitably addressing the situation
arising out the order of the Supreme Court by amending the legislation. By amending Act 29 of
2013, two amendments were introduced into the Representation of the People Act, 1951. Firstly,
the expression "disqualified" in Section 7 (b) was amended to provide that a member of Parliament
or a Legislature of a State shall be disqualified for being chosen as, and for being, a member of
either House of Parliament or a Legislative Assembly or Legislative Council of a State, if he is so
disqualified under the provisions of Chapter III of Part II of the Act of 1951 and on no other
ground. Secondly, a proviso was introduced into sub-section (5) of Section 62 to expressly provide
that by reason of the prohibition to vote imposed by the substantive part of the Section, a person
whose name has been entered into the electoral roll shall not cease to be an elector.

10. The challenge to the constitutional validity of the provisions of Act 29 of 2013 in these
proceedings is on the ground that by and as a result of the amending law, the basis of the decision
of the Supreme Court in Jan Chaukidar has not been taken away. The submission is that in order
to be a valid piece of validating legislation, the legislature which enacts the law must possess
legislative competence and must remove the defect which the Court has found in the previous
legislation. In the present case, it has been submitted that the basis of the decision of the Patna High
Court, which was affirmed by the Supreme Court was that to be an elector, a person has to be a
voter and a person whose right to vote is under suspension under sub-section (5) of Section 62,
cannot be an elector. The submission is that this basis has not been taken away by Act 29 of 2013
and the mere introduction of a proviso to Section 62 (5) does not achieve that purpose. This is the
submission which we now proceed to analyse.

11. The principle of law is that it is open to a legislature which possesses legislative
competence in respect of the subject matter, to enact legislation which removes or cures a defect
which has been noticed in a judgment of the Court. In removing the defect, the legislature cures the
reasons for invalidity. It is in that sense that the legislation is termed as validating legislation. A
316 INDIAN LAW REPORTS ALLAHABAD SERIES
legislature cannot merely ordain that a judgment of a Court of competent jurisdiction stands
abrogated or nullified. What the legislature can, however, do is to ensure that the basis of the
judgment is taken away by curing the defect or anomaly that was noticed in the judgment of the
Court.

12. These principles were affirmed in a judgment of seven learned Judges of the Supreme
Court in Hari Singh vs. Military Estate Officer5 and have been reiterated in I.N. Saksena vs.
State of Madhya Pradesh6.

13. The principle of law has been summarized in Justice G P Singh's seminal treatise on the
Interpretation of Statutes7 thus:

"A validating Act may even make ineffective judgments and orders of competent
courts provided it by retrospective legislation removes the cause of invalidity or the basis which
had led to those judgments8..."

14. Dealing with the retrospective operation of statutes, the author states the position
succinctly:
"...The power to make retrospective legislation enables the Legislature to obliterate
an amending Act completely and restore the law as it existed before the amending Act. This power
has also been often used for validating prior executive and legislative acts by retrospectively curing
the defect which led to their invalidity and thus even making ineffective judgments of competent
courts declaring the invalidity9..."

15. The Supreme Court, while rendering its decision in Jan Chaukidar did not invalidate
or strike down a provision of the Representation of the People Act of 1951. Those provisions had
been construed by the Patna High Court, whose decision was in appeal before the Supreme Court in
civil appeals, to hold that a person who is not entitled to vote by reason of being in lawful custody
cannot be an elector. The Supreme Court upheld the decision of the Patna High Court. Parliament
sought to correct the situation by an amendment to Section 62 (5) by stipulating that a person
whose name has been entered in the electoral roll shall not cease to be an elector by reason of the
prohibition to vote under the sub-section. The effect of the introduction of the proviso is that a
consequence which would otherwise flow out of the provisions of sub-section (5), as they were
interpreted in the judgment of the Patna High Court, as affirmed by the Supreme Court, is sought to
be obviated by means of a specific stipulation that a mere prohibition to vote does not render a
person whose name has been entered in the electoral roll, ceasing to be an elector.

16. The expression "elector" has been defined in Section 2 (e) of the Act of 1951. The
definition is comprised in two parts: the first part indicates that to be an elector in relation to a
constituency, the name of the person has to be entered in the electoral roll of that constituency for
the time being in force; secondly such a person should not be subject to any of the disqualifications
mentioned in Section 16 of the Act of 1950. The disqualifications which have been mentioned in
Section 16 of the Act of 1950 are three namely : (a) not being a citizen of India; (b) being of an
4 All. Lok Prahari Through Its General Secy. S.N. Shukla [P.I.L.] Vs Union Of India
 Thr. Secy. Legislative Deptt. Ministry Of Law &
317
unsound mind and being so declared by a competent court; and (c) being disqualified from voting
for the time being under the provisions of any law relating to corrupt practices or other offences in
connection with elections. To emphasize, the disqualification from voting under Section 16 (1) (c)
has to be under a law relating to corrupt practices and other offences in connection with elections.

17. Section 22 of the Act of 1950 provides for correction of entries in electoral rolls where
an entry (i) is erroneous or defective in any particular; (ii) has to be transposed to another place in
the roll on the ground that the person has changed his place of ordinary residence within the
constituency; or (iii) has to be deleted where the person (a) is dead; or (b) has ceased to be
ordinarily resident in the constituency; or (c) is otherwise not entitled to be registered in that roll.
Entitlement to registration in an electoral roll is governed by Section 19 which specifies two
conditions for such entitlement, these being attaining the age of eighteen years on the qualifying
date and being ordinarily resident in a constituency.

18. At this stage, it is also material to note that under sub-section (2) of Section 20 of the
Act of 1950, it has been stipulated that a person who is detained in prison or other legal custody at
any place is not by reason thereof deemed to be ordinarily resident therein. The expression
"therein" obviously has reference to the place of detention in prison or legal custody.

19. By and as a result of Act 29 of 2013, Parliament has clarified its intent by stipulating
that a person who incurs a prohibition to vote under sub-section (5) of Section 62 upon being
confined in a prison or as a result of being in lawful custody of the police, shall not cease to be an
elector so long as his name is entered in the electoral roll. There is no provision, as we have seen
earlier, by which the name of a person has to be deleted from an electoral roll as a consequence of
confinement in prison or as a result of being in lawful custody. This position has been clarified by
means of the introduction of the second proviso of sub-section (5) Section 62 through the amending
legislation. The amending legislation consequently removes the basis of the judgment in Jan
Chaukidar by introducing a suitable provision to that effect.

20. Consequently and for these reasons, we have come to the conclusion that the challenge
to amending Act 29 of 2013 on the ground that it did not constitute a piece of validating legislation,
cannot be accepted.

21. A Division Bench of the Delhi High Court in Manohar Lal Sharma vs. Union of
India10 upheld the validity of the legislation in question. We have indicated our reasons for
rejecting the constitutional challenge though we are in respectful agreement with the judgment of
the Delhi High Court.

22. Apart from challenging the constitutional validity of Act 29 of 2013, the petitioner has
sought a mandamus to the Election Commission of India to issue an order under Article 324 of the
Constitution in terms of its 'decision' dated 23 May 2008 to the effect that (i) at the time of the
revision of electoral rolls, the names of persons, except preventive detenues, in jail for six months
318 INDIAN LAW REPORTS ALLAHABAD SERIES
or more be deleted from electoral rolls under Section 22 of the Act of 1950; and (ii) nomination
papers of such persons be rejected.

23. Sri S N Shukla who appeared in person has drawn the attention of the Court to an order
dated 12 November 2007 of the Hon'ble Supreme Court in Lok Prahari vs. Election Commission
of India11 dismissing a writ petition filed under Article 32 of the Constitution on 12 November
2007. Subsequently a review petition was dismissed on 27 February 2008. In IA No. 3 of 2007 in
Writ Petition No. 593 of 2007, an order was passed by the Supreme Court on 16 April 2008 in the
following terms:

Writ Petition No. 593/2007 was dismissed in limine. However, we make it clear
that the representation filed by the petitioner before the Chief Election Commission can be
considered and disposed of in accordance with law.

I.A. No. 3 is disposed of accordingly."

24. Having due regard to the aforesaid directions which have been issued by the Supreme
Court in IA No. 3 of 2007 (copies of the orders of the Supreme Court being annexed as Annexures
6, 7 and 8 to the writ proceedings), no orders are specifically necessary in regard to the second
prayer.
25. The writ petition is, accordingly, dismissed. There shall be no orders as to costs.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.04.2016

BEFORE

THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Writ - C No.- 1380 Of 2015
&
Connected With Other Cases

Dr. Surya Kant Ojha & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for Petitioners:
Ratnakar Upadhyay, Radha Kant Ojha

Counsel for the Respondents:
C.S.C