# Sri Gyanendra Kumar Singh and others v. The Election Commissioner of India. and others

- **Citation:** (2010) 3 ILRA 1085
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-10-20
- **Case number:** Writ Petition No. 8250 of 2010
- **Bench:** F.I. Rebello, C.J. Shabihul Hasnain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-gyanendra-kumar-singh-and-others-v-the-election-commissioner-of-india-and-41727
- **Pages:** 11

## Headnote

Constitution of India Art.171 readwith
Representation
of
People
Act
1950
Section 27 and Registration of Electors'
Rule, 1960-Rule 31-Validity of Guidelines
issued of Election Commission requiring
physical presence of those graduates of
constituency-whether ultra vires-being
contrary to Art. 171-held- 'No'-various
reasons dismissed.

Held: Para 13

In our opinion, considering the above
discussions, it is not possible to hold that
the Guidelines issued are ultra vires.
They are in furtherance of the powers
conferred on the Election Commission
under Sections 21, 22, 23 and 27 of the
Act and the Rules framed thereunder and
Article 324. Section 27 of the Act itself
sets out that every person, who is
ordinarily a resident in a graduates'
constituency and has, for at least three
years before the qualifying date, been
either a graduate of a University in the
territory of India or in possession of any
of the qualifications specified under
clause (a) of sub-section (3) by the State
Government concerned, shall be entitled
to be registered in the electoral roll for
that constituency. Thus, the procedure
adopted by the Election Commission to
restrict those who are ineligible, and the
criteria adopted, cannot be said to be
contrary and ultra vires the Act. In our
opinion, they are in furtherance of the
mandate
cast
on
the
Election
Commission
to
purify
the
electoral
process
and
to
keep
away
the
undesirable and unwanted persons who
seek to destroy the democratic process.

## Text

3 All] Sri Gyanendra Kumar Singh and others V. The Election Commissioner of India. and others 1085
such matters may be under Articles 14 and
16 of the Constitution of India. Hence, this
contention is also rejected.

19. In the light of the above, rule
discharged. However, there shall be no
order as costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.10.2010

BEFORE
THE HON'BLE F.I. REBELLO, C.J.
THE HON'BLE SHABIHUL HASNAIN, J.

Writ Petition No. 8250 of 2010

Sri Gyanendra Kumar Singh and
others

 ...Petitioner
Versus
The Election Commissioner of India and
others

 ...Respondent

Counsel for the Petitioners:
Shri Akhilesh Kalra

Counsel for the Respondents:
Shi O.P. Srivastava

Constitution of India Art.171 readwith
Representation
of
People
Act
1950
Section 27 and Registration of Electors'
Rule, 1960-Rule 31-Validity of Guidelines
issued of Election Commission requiring
physical presence of those graduates of
constituency-whether ultra vires-being
contrary to Art. 171-held- 'No'-various
reasons dismissed.

Held: Para 13

In our opinion, considering the above
discussions, it is not possible to hold that
the Guidelines issued are ultra vires.
They are in furtherance of the powers
conferred on the Election Commission
under Sections 21, 22, 23 and 27 of the
Act and the Rules framed thereunder and
Article 324. Section 27 of the Act itself
sets out that every person, who is
ordinarily a resident in a graduates'
constituency and has, for at least three
years before the qualifying date, been
either a graduate of a University in the
territory of India or in possession of any
of the qualifications specified under
clause (a) of sub-section (3) by the State
Government concerned, shall be entitled
to be registered in the electoral roll for
that constituency. Thus, the procedure
adopted by the Election Commission to
restrict those who are ineligible, and the
criteria adopted, cannot be said to be
contrary and ultra vires the Act. In our
opinion, they are in furtherance of the
mandate
cast
on
the
Election
Commission
to
purify
the
electoral
process
and
to
keep
away
the
undesirable and unwanted persons who
seek to destroy the democratic process.

(Delivered by Hon'ble F.I. Rebello, C.J.)

1. By means of the present petition,
the petitioners seek a declaration that the
Guidelines dated 03.12.2009 issued by the
Election Commission of India (hereinafter
referred to as the 'Election Commission')
are illegal and void and also all
consequential orders and directions. The
submission is that the Guidelines are ultra
vires Article 171 of the Constitution of
India read with Section 27 of the
Representation of the People Act, 1950
and Rule 31 of the Registration of
Electors' Rules, 1960.

2. The case of the petitioners is that
the Election Commission published a
public notice vide Press Note dated
18.12.2009, whereby the residents of the
graduates' constituency of Kanpur were
called upon to get their names included in
the electoral roll in accordance with the
terms and conditions contained in the
Guidelines dated 03.12.2009. The public
notice required the residents, otherwise
1086 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
eligible for being registered as voters of
the graduates' constituency of Kanpur, to
appear in person with original marksheet/degree or equivalent certificate
along with Form 18 before the Designated
Officer,
who
was
to
verify
the
genuineness of the graduate certificate. In
the notice, it was set out that persons, not
submitting the certificates of graduation
or its equivalent, would not be entitled to
be registered as voters. Considering the
conditions
contained
in
the
notice,
published in pursuance of the Guidelines
dated 03.12.2009, a large number of
graduates who, under the Constitution and
the Statute, are entitled to be registered as
voters, are being deprived of their
statutory and constitutional rights to vote
during the election of the U.P. State
Legislative Council of Kanpur graduates'
constituency.
Article
324
of
the
Constitution of India, provides that the
superintendence, direction and control of
preparation of the electoral rolls and the
conduct of the elections to Parliament and
Legislature in every State, vests in the
Election Commission. The procedure for
preparation of electoral rolls and the
manner of filing the forms are prescribed
under the provisions of the Representation
of the People Act, 1950 (hereinafter
referred to as the 'Act').

3. The further case as set out is that
the preparation of electoral rolls for the
graduates' constituency for election to the
Council, is to be carried out as per the
procedure prescribed by Section 27 of the
Act. The Chief Electoral Officer (CEO),
as provided under Section 13A of the Act,
is
responsible
for
supervising
the
preparation, revision and correction of
electoral rolls in the State. As per Section
13AA of the Act, the District Election
Officers are to prepare and revise the
electoral rolls under the superintendence,
direction and control of the Chief
Electoral Officer. Similarly, Section 13B
of the Act provides that the electoral rolls
for a Constituency, including the Council
Constituency, are to be prepared and
revised by an Electoral Registration
Officer.

Section 27 (3) of the Act, provides
for the qualification for a person to be
registered as a voter. Sub-section 5 (a) of
Section 27 of the Act, categorically
provides
that
any
person,
who
is
ordinarily
resident
in
a
graduates'
constituency and has, for at least three
years before the qualifying date, which in
the present case is 01.11.2009, been either
a graduate of a University in the territory
of India or is in possession of any of the
qualifications specified under clause (a)
of
sub-section
(3)
by
the
State
Government concerned, shall be entitled
to be registered in the electoral roll for
that constituency. The procedure for
preparation of electoral rolls is provided
for in the Act itself. A duty has been cast
on
the
Election
Commission
for
preparation of electoral rolls of every
constituency.
While
preparing
the
electoral roll for a graduates' constituency,
the procedure prescribed under the Act
must be followed. This has to be in
conformity with the Constitution of India.
Reference is, then, made to various
provisions of the Act and the Rules
known as the Registration of Electors'
Rules, 1960 (hereinafter referred to as the
'Rules').

4. It is submitted on behalf of the
petitioners that a perusal of the Act and
the Rules, would clearly establish that a
person eligible to be registered as an
elector for a graduates' constituency is
3 All] Sri Gyanendra Kumar Singh and others V. The Election Commissioner of India. and others 1087
required to send or deliver to the
Registering Officer, the application in
Form 18 for inclusion of his name in the
roll of electors. The statutory provision of
the Act or the Rules do not envisage his
personal
appearance
before
the
Registering
Officer
for
personal
verification of documents. Form 18, being
part of a statutory provision, cannot be
altered, modified or amended by the
Guidelines
issued
by
the
Election
Commission. Apart from that, it is
submitted that the procedure prescribed
under the Guidelines is cumbersome, and
discourages voters from enlisting their
names, which is neither envisaged under
the Act or the Rules nor is required and
hence the Guidelines are unreasonable.

5. Though, no reply has been filed
on behalf of the Election Commission, it
has been pointed out by the learned
counsel that the procedure, as prescribed
under the Guidelines, is to ensure that the
doubtful and bogus applications are not
entertained and names of such persons are
not included in the voter list. The
Guidelines provide for a safeguard against
bogus and ineligible voters. Learned
counsel has also placed before us a
communication dated 17.09.2010 sent by
the Election Commission to the Chief
Electoral
Officer
of
Uttar
Pradesh.
Reference is also made to an order dated
25.06.2004 passed by the Patna High
Court in C.W.J.C. No. 11685 of 2003
(Shri Prakash Srivastava & Ors. Vs.
The Chief Election Commissioner,
Govt. of India & Ors.) with C.W.J.C.
No. 14440 of 2003 and C.W.J. C. No.
No. 4800 of 2002, which we will refer in
the judgment in the course of discussion.

In
the
communication
by
the
Election
Commission
to
the
Chief
Electoral Officer, U.P., Lucknow dated
17.09.2010, a copy of which is placed on
record, reference is made to the aforesaid
petition filed in the Patna High Court
challenging the irregularities in the
electoral
rolls
of
Saran
Graduates
Constituency. The allegation was that,
many non-graduates got their names
enrolled in the electoral rolls on the basis
of forged certificates and sought an
enquiry to be instituted by the Election
Commission in the matter. An enquiry
was conducted and it transpired in the
enquiry report that a large number of
applicants
filed
fake
certificates
in
support of their educational qualification.
On verification, the District Magistrate,
Siwan found that out of 176 persons, only
14 were eligible. These persons got their
names included, taking advantage of the
instructions of the Election Commission,
then in vogue as contained in the then
existing Para 45 Chapter IX of the
Handbook
of
Electoral
Registration
Officer, which provided that the applicant
should submit each document in support
of
their
educational
and
other
qualifications so that his claim could be
considered for inclusion of his name in a
graduates' constituency in Form 18 under
Rule 31 (3) of the Rules. Based on the
enquiry, the Guidelines for revision of the
electoral rolls of graduates' and teachers'
Constituencies in Bihar were amended.
The amended Guidelines issued for the
revision of the electoral rolls of graduates'
and teachers' Constituencies in the State
of Bihar were found successful, as there
was no major complaint in regard to
revision of rolls. The same instruction
was adopted at the time of revision of
electoral rolls of graduates' and Teachers'
Constituencies
in
the
States
of
Maharashtra and Karnataka in 2005 and
1088 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the same was found to be effective in
preparing clean rolls there also.

The procedure for enrolment of
voters
in
graduates'
and
teachers'
Constituencies has been slightly amended
subsequently
after
considering
some
representations
received.
The
earlier
instructions were to produce the original
certificates/mark
sheets
before
the
Designated Officers. The Commission
had earlier appointed Sub-Divisional
Officers including ERO and AEROs as
the Designated Officers for accepting the
application forms for enrolment. Keeping
in view the various representations
received expressing difficulty in going to
the
District
Magistrates
and
Sub
Divisional Magistrates for showing the
certificates, the Commission has now
appointed
the
Block
Development
Officers as the Designated Officers to
conduct verification of certificates of the
applicants in addition to Sub-Divisional
Officers vide its letter dated 29th
December, 2009. Subsequently, reducing
the inconvenience of the applicants
further, the Commission also appointed
Additional
Designated
Officers
for
authentication of the copies of the
Degree/Mark sheets of the eligible voters
after
verification
of
their
original
certificates. There are several Additional
Designated Officers. It is pointed out that
these steps are successful in getting
defect-free and accurate roll and also
there was no major complaint with regard
to revision of rolls received in the
Election Commission, since the chances
of enrolment of bogus voters were almost
eliminated
because
of
the
proper
verification of certificates. Any dilution of
the instructions to do away with proper
verification of the claim with reference to
proper certificates/records would lead to
ineligible persons getting enrolled.

6. The Press Note setting out process
of elections was published on 5th
October, 2010. The date of issue of
notification was 15th October, 2010. The
last date for filing nominations was 22nd
October, 2010. The other dates were also
specified in the said Note. The petitioners
had filed the petition on 19th August,
2010. The matter was taken up by the
Court on 23.08.2010. However, this
Court, by order dated 12.10.2010 issued a
direction that it will be open for the
willing persons to send their application
forms for inclusion of their names in the
voter list, without personally presenting
themselves before the Authorised Officer,
and to produce a copy of the Guidelines.

7.

The
question
for
our
consideration is, whether the Guidelines
issued by the Election Commission can be
said to be unconstitutional or ultra vires or
unreasonable? The relevant provisions of
the Act may be set out. Sections 15, 18,
21, 22 and 23 of the Act reads as under:-

"15.
Electoral
roll
for
every
constituency.-- For every constituency
there shall be an electoral roll which shall
be prepared in accordance with the
provisions
of
this
Act
under
the
superintendence, direction and control of
the Election Commission.

18. No person to be registered
more than once in any constituency.--
No person shall be entitled to be
registered in the electoral roll for any
constituency more than once.

21. Preparation and revision of
electoral rolls.-- (1) The electoral roll for
3 All] Sri Gyanendra Kumar Singh and others V. The Election Commissioner of India. and others 1089
each constituency shall be prepared in the
prescribed manner by reference to the
qualifying date and shall come into force
immediately upon its final publication in
accordance with the rules made under this
Act.

(2) The said electoral roll--

(a) shall, unless otherwise directed
by the Election Commission for reasons
to be recorded in writing, be revised in the
prescribed manner by reference to the
qualifying date--

(i) before each general election to the
House of the People or to the Legislative
Assembly of a State; and

(ii) before each bye-election to fill a
casual vacancy in a seat allotted to the
constituency; and

(b) shall be revised in any year in the
prescribed manner by reference to the
qualifying date if such revision has been
directed by the Election Commission:

Provided that if the electoral roll is
not revised as aforesaid, the validity or
continued operation of the said electoral
roll shall not thereby be affected.

(3)
Notwithstanding
anything
contained in sub-section (2), the Election
Commission may at any time, for reasons
to be recorded, direct a special revision of
the electoral roll for any constituency or
part of a constituency in such manner as it
may think fit:

Provided that subject to the other
provisions of this Act, the electoral roll
for the constituency, as in force at the
time of the issue of any such direction,
shall continue to be in force until the
completion of the special revision so
directed.

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--

(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
direction, if any, as may be given by the
Election Commission in this behalf,
amend, transpose or delete the entry:

Provided that before taking any
action on any 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.
1090 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

23. Inclusion of names in electoral
rolls.--(1) Any person whose name is not
included in the electoral roll of a
constituency may apply to the electoral
registration officer for the inclusion of his
name in that roll.

(2) The electoral registration officer
shall, if satisfied that the applicant is
entitled to be registered in the electoral
roll, direct his name to be included
therein:

Provided that if the applicant is
registered in the electoral roll of any other
constituency, the electoral registration
officer
shall
inform
the
electoral
registration
officer
of
that
other
constituency and that officer shall, on
receipt of the information, strike off the
applicant's name from that roll.

(3) No amendment, transposition or
deletion of any entry shall be made under
section 22 and no direction for the
inclusion of a name in the electoral roll of
a constituency shall be given under this
section, after the last date for making
nominations for an election in that
constituency or in the parliamentary
constituency
within
which
that
constituency is comprised and before the
completion of that election."

Power has been conferred to the
Central Government to make rules under
Section 28 of the Act. Relevant provision
of Section 28 of the Act reads as under:-

"28. Power to make rules.- (1) The
Central Government may, after consulting
the Election Commission, by notification
in the Official Gazette, make rules for
carrying out the purposes of this Act.

(2)
In
particular
and
without
prejudice to the generality of the
foregoing power, such rules may provide
for all or any of the following matters,
namely:-

(a) ... ... ...

 ... ... ...

(h) the revision and correction of
electoral rolls and inclusion of names
therein."

8. Rule 31 of the Rules provides for
preparation for graduates' and teachers'
constituencies, which reads as under:-

"31. Rolls for Graduates' and
Teachers' Constituencies - (1) The roll
for
every
graduates'
or
teachers'
constituency shall be prepared in such
form, manner and language or languages
as the Election Commission may direct.

(2) The roll shall be divided into
convenient parts which shall be numbered
consecutively.

(3) For the purpose of preparing the
roll the Registration Officer shall, on or
before the 1st October issue a public
notice calling upon every person entitled
to be registered in that roll to send to, or
deliver at his office before the 7th day of
November next following an application
in Form 18 or Form 19, as the case may
be, for inclusion of his name.

(4) The said notice shall be published
in two newspapers having circulation in
the constituency and republished in them
once on or about the 15th October and
again on or about the 25th October.
3 All] Sri Gyanendra Kumar Singh and others V. The Election Commissioner of India. and others 1091

4-A. The provisions of sub-rules (3)
and (4) shall apply in relation to revision
of the roll for every graduates' or teachers'
constituency under sub-section (2) (a) (ii)
of Section 21 of the Act, as they apply in
relation to the preparation of such roll
subject to the modification that references
to the Ist October and the 7th day of
November in sub-rule (3) and references
to the 15th October and 25th October in
sub-rule
(4)
shall
be
construed
respectively as references to such date, as
may be specified by the Election
Commission in relation to each such
revision.

(5) The provisions of rules 10 to 27
except clause (c) of sub-rule (1) and
clause (c) of sub-rule (2) of rule 13 shall
apply in relation to graduates' and
teachers' constituencies as they apply in
relation to assembly constituencies:

Provided
that
a
claim
or
an
application for the inclusion of a name
shall be made in Form 18 or Form 19, as
may be appropriate."

Paragraph 6 (iv) and (v) of the
Guidelines, which is also relevant, reads
as under:-

"6. Procedure for enumeration for
Graduates Constituencies:-

(i) ....
..... ....

(iv) The eligible person should apply
for enrolment of their names in the
prescribed form 18 along with documents
listed in sub para (iii) above.

(v)
Every
person
making
an
application in form 18 shall be required to
produce his degree or certificate or
marksheet, in original, in support of his
eligibility for verification as per the
following procedure:-

a. In case where the applicant
directly ..........his application in person
before the Designated Officer duly
appointed for the purpose, he will produce
the original degree, certificate, mark sheet
before the Designated Officer. The
Designated Officer will scrutinize the
degree, certificate, mark sheet and after
satisfying himself record either Verified
with original and found correct or
Verified with original and found not
correct, Repeated.

The Designated Officer will then
affix his signature full name and PIN
number on the application as mark of a
summary enquiry and return a photocopy
(only attested by him) of the original
document furnished by the applicant
toward the application to the ERO.

b. In case where the application is
sent by post to the ERO/AERO along
with attested copies of degree, certificate,
the ERO will forward the same to the
Sub-Divisional Officer (SDO), incharge
of the area where the applicant resides.
The SDO will in turn, issue a notice to the
applicant to appear either before him or a
designated officer appointed for the
purpose in the sub division, in person
along with his original certificate. Such
notice will be issued by registered post or
hand-delivered
with
proper
acknowledgment due. On the appointed
day of the hearing the applicant will
produce his original certificate and the
Designated Officer will then proceed with
his enquiry as per sub-para (a) above and
affix his decision as laid completion of
1092 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the
enquiry
by
the
SDO
to
the
ERO/AERO concerned."

9. As we have noted earlier, there is
a procedure for preparation of the
electoral rolls. Section 27 of the Act itself
sets out that the seats are reserved for
graduates' constituency and there is a
power to the State Government to set out
the qualifications equivalent to that of a
graduate of a University.

Insofar as Article 171 of the
Constitution of India is concerned, all that
it provides for is the reservation in the
Legislative Council of a State for those
who possess qualifications prescribed for
or under any law made by the Parliament
as equivalent to that of a graduate of any
such University. Article 324 of the
Constitution of India confers power on the
Election Commission of superintendence,
direction and control of the preparation of
electoral rolls and conduct the elections to
Parliament and Legislature of every State.
That roll has to be prepared in terms of
Section 27 of the Act. It is now well
settled that where no Rules have been
made, then it is open to the Election
Commission to issue regulations or
instructions for the purpose of free and
fair conduct of elections, which would
include
preparation
of
voters
roll
excluding those who are not eligible to be
included. The exercise undertaken by the
Election Commission is based on the
directions issued to it by the Patna High
Court in Shri Prakash Srivastava
(supra), to weed out those who were not
eligible to be included in the voters list
and thus maintain purity of the list.
Pursuant to the said directions, the
Election Commission has taken steps to
check the inclusion of those who are
otherwise not eligible. This exercise,
therefore, cannot be said to be contrary to
the rule making power conferred on the
Government under Section 28 of the Act
and the Rules.

10. The power of the Election
Commission to make regulations or issue
directions
is
no
longer
res-integra.
Reference may be made to the following
observations of the Supreme Court in
Mohinder Singh Gill & Anr. Vs. The
Chief Election Commissioner, New
Delhi & Ors., AIR 1978 SC 851:-

"91. Diffusion, even more elaborate
discussion, tends to blur the precision of
the conclusion in a judgment and so it is
meet that we synopsize the formulations.
Of course, the condensed statement we
make
is
for
convenience,
not
for
exclusion of the relevance or attenuation
of the binding impact of the detailed
argumentation. For this limited purpose,
we set down our holdings:

1 (a) Article 329 (b) is a blanket ban
on litigative challenges to electoral steps
taken by the Election Commission and its
officers for carrying forward the process
of election to its culmination in the formal
declaration of the result.

(b) Election, in this context, has a
very wide connotation commencing from
the Presidential notification calling upon
the electorate to elect and culminating in
the final declaration of the returned
candidate.

2 (a) The Constitution contemplates
a free and fair election and vests
comprehensive
responsibilities
of
superintendence, direction and control of
the conduct of elections in the Election
Commission. This responsibility may
3 All] Sri Gyanendra Kumar Singh and others V. The Election Commissioner of India. and others 1093
cover powers, duties and functions of
many sorts, administrative or other,
depending on the circumstances.

(b) Two limitations at least are laid
on its plenary character in the exercise
thereof. Firstly, when Parliament or any
State Legislature has made valid law
relating to or in connection, with
elections, the Commission, shall act in
conformity with, not in violation of, such
provisions but where such law is silent
Art. 324 is a reservoir of power to act for
the avowed purpose of, not divorced
from, pushing forward a free and fair
election with expedition. Secondly, the
Commission shall be responsible to the
rule of law, act bona fide and be amenable
to the norms of natural justice in so far as
conformance
to
such
canons
can
reasonably and realistically be a required
of it as fairplay-in-action in a most
important area of the constitutional order,
viz., elections. Fairness does import an
obligation to see that no wrong-doer
candidate benefits by his own wrong. To
put the matter beyond doubt, natural
justice enlivens and applies to the specific
case of order for total re-poll, although
not in full panoply but in flexible
practicability.
Whether
it
has
been
complied with is left open for the
Tribunal's adjudication.

3. The conspectus of provisions
bearing on the subject of elections clearly
expresses the rule that there is a remedy
for every wrong done during the election
in progress although it is postponed to the
post election stage and procedure as
predicated in Article 329 (b) and the 1951
Act. The Election Tribunal has, under the
various provisions of the Act, large
enough powers to give relief to an injured
candidate if he makes out a case and such
processual amplitude of power extends to
directions to the Election Commission or
other appropriate agency to hold a poll, to
bring up the ballots or do other things
necessary
for
fulfillment
of
the
jurisdiction to undo illegality and injustice
and do complete justice within the
parameters set by the existing law.

115. Apart from the several functions
envisaged by the two Acts and the rules
made thereunder, where the Election
Commission
is
required
to
make
necessary orders or directions, are there
any other functions of the Commission?
Even if the answer to the question may be
found elsewhere, reference may be made
to S. 19A of the Act which, in terms,
refers to functions not only under the
Representation of the People Act, 1950
and the Representation of the People Act,
1951, or under the rules made thereunder,
but also under the Constitution. The
Commission is, therefore, entitled to
exercise certain powers under Art. 324
itself on its own right, in an area not
covered by the Acts and the rules.
Whether the power is exercised in an
arbitrary or capricious manner is a
completely different question."

11. We may note that increasingly,
the electoral process is sought to be
negated by those seeking the highest
office in a democratic set up, many a
times with a record which an ordinary
voter would shrink at. We also find that in
the enquiry held pursuant to the direction
by the Patna High Court, it was revealed
that a large number of persons who were
not graduates had got their names
included in the electoral roll. These voters
otherwise would have been ineligible to
vote. Their very presence on the electoral
roll and the exercise of right to vote itself
1094 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
destabilizes the solemnity of the electoral
process. To that extent, any steps taken by
the Election Commission to purify the
process really cannot be said to be
arbitrary, inasmuch as they are in
furtherance of its powers to see that only
those contest and participate in the
process of election who are, otherwise,
eligible. Merely, because the procedure
laid down may require verification of the
documents, itself cannot result in holding
that the process is vitiated or cumbersome
and, therefore, unreasonable. The number
of voters in the graduates' constituency
vis-a-vis the general voters is limited. A
large number of officers designated to
verify the qualification is, to an extent, to
avoid the difficulty being faced by the
persons to be enrolled.

12. The contention raised is that the
Guidelines would result in denying people
from getting themselves registered as
voters from graduates' constituencies and,
to
that
extent,
the
Guidelines
are
unreasonable. The process of elections or
preparing the voters list is not confined to
the State of Uttar Pradesh alone. The
Election Commission has prepared these
Guidelines for every State where there is
a Legislative Council. The process, by
which only genuine voters are enrolled,
cannot be said to prevent maximum
participations of citizens in a democratic
set up. On the contrary, it is only the
genuine persons who are entitled and
desirous of participating in the election
process, will be enrolled. The argument
that the procedure is cumbersome and,
therefore, an elector may not want to get
his name included, cannot be a ground to
hold that the procedure is unreasonable,
unless they are prevented from being
enrolled. It is the duty of a voter to see
that he enrolls himself. Even if there be
some difficulty, nonetheless the procedure
adopted is to purify the electoral process.
Difficulty, if any, cannot result in holding
that the Guidelines are unreasonable.

13. In our opinion, considering the
above discussions, it is not possible to
hold that the Guidelines issued are ultra
vires. They are in furtherance of the
powers
conferred
on
the
Election
Commission under Sections 21, 22, 23
and 27 of the Act and the Rules framed
thereunder and Article 324. Section 27 of
the Act itself sets out that every person,
who is ordinarily a resident in a graduates'
constituency and has, for at least three
years before the qualifying date, been
either a graduate of a University in the
territory of India or in possession of any
of the qualifications specified under
clause (a) of sub-section (3) by the State
Government concerned, shall be entitled
to be registered in the electoral roll for
that constituency. Thus, the procedure
adopted by the Election Commission to
restrict those who are ineligible, and the
criteria adopted, cannot be said to be
contrary and ultra vires the Act. In our
opinion, they are in furtherance of the
mandate cast on the Election Commission
to purify the electoral process and to keep
away the undesirable and unwanted
persons
who
seek
to
destroy
the
democratic process.

14. No other contentions were
advanced before us. Apart from that, by
the time the matter came up for hearing,
steps had already commenced for holding
the elections. Article 329 (b), would also
be a fetter on us and it is not possible for
this Court to interfere in the electoral
process.
3 All] Dr. (Smt) Shobha Gupta V. Union of India
1095

15. For all the aforesaid reasons, we
find no merit in this petition which is
accordingly dismissed. There shall be no
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.09.2010

BEFORE
THE HON'BLE F.I. REBELLO, C.J.
THE HON'BLE PRADEEP KANT, J.

Misc. Bench No. 9419 of 2010

Dr. (Smt) Shobha Gupta
 ...Petitioner
Versus
Union of India

 ...Respondent

Counsel for the Petitioner:
Ashok Pande

Counsel for the Respondent:
A.S.G.
Manish Jauhari

Constitution
of
India,
Art
226Application for agency-for distribution of
LPG Gas vitarak-rejected on ground non
possessing land with her own namefather-in-law
given
affidavit-in
case
agency given-land shall be Transferred
with her name-admittedly the petitioner
is the wife of married son-not coverred
within the definition of family rejectionheld-proper.

Held: Para 8

We may deal with the contention as now
raised on behalf of the petitioner herein
insofar as the definition of Family Unit is
concerned. No doubt, the respondent no.
2 would be State within the meaning of
Article 12 of the Constitution of India
and it will be bound by the principles laid
down
under
Article
14
of
the
Constitution, but at the same time, as
has been held by the Supreme Court in
its various pronouncement, respondent
no. 2 can also act as an private individual
in the field of contract. In the instant
case, the agency is to be given to a
person who owns the land, either in
his/her own name or in the name of a
member as defined in the Family Unit.
The Family Unit is restricted to applicant,
applicant's spouse and unmarried son(s)
/ daughter(s). Admittedly, the petitioner
is the daughter-in-law. In other words
the wife of 'married son' who does not
fall within the definition of family unit.

(Delivered by Hon'ble F.I. Rebello, C.J.)

1. Heard learned counsel for the
parties.

2. Respondent no. 2-Indian Oil
Corporation
Ltd.
had
issued
an
advertisement for allotment of an agency,
which is known as Rajeev Gandhi Gramin
L.P.G. Vitarak (RGGLV) in October, 2009
on the terms and conditions mentioned in
the advertisement. One of the conditions is
that the person seeking agency should own
a suitable land at advertised location for
LPG godown & showroom.

3. The word 'own' has been defined to
mean as clear ownership title of the
property in the name of applicant / family
member of the 'Family Unit'. 'Family Unit'
has been defined to include a married
applicant which shall consist of the
applicant, applicant's spouse and unmarried
son(s) / daughter(s). 'Family Unit' of an
unmarried
applicant
shall
consist
of
applicant, applicant's parents and applicant's
unmarried brother(s) / sister(s).

4. The petitioner herein applied for the
said agency. Insofar as the requirement of
land as per the advertisement is concerned,
she has relied on an affidavit of her fatherin-law that in the event, the petitioner
succeeds in getting the agency, he would