# 16 (AODL.) S.C.R. 526 LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS

- **Citation:** [2009] 16 S.C.R. 526
- **Court:** Supreme Court of India
- **Decided:** 2009-12-15
- **Case number:** Civil Appeal No. 4201 of 2008
- **Bench:** D.K. Jain, H.L. Dattu
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/16-aodl-s-c-r-526-laxmi-kant-bajpai-v-hazi-yaqoob-ors-25343
- **Pages:** 38

## Headnote

Election Laws - Election to State Assembly- Challenged
on the ground that electoral roll containing names from 21
C localities were in contravention of order of de/imitation -
Election petition dismissed by High Court - On appeal, held:
Election not liable to be declared void - Electoral roll was
prepared on the basis of delimitation order - Courts cannot
decide any issue relating to issuance or revision of an
D electoral roll - The remedy lies in the procedure laid down in
the prescribed rules -
In absence of a fresh order of
de/imitation issued by delimitation Commission, Election
Commission had no power to change the electoral roll for the
constituency - Election petition also did not disclose any
E material facts - Representation of the People Act, 1951 - ss.
100 (10)(d) (iii) and (iv); 9(1)(b), 30 and 80- Delimitation Act,
1972 - s. 11(1)(b) - Uttar Pradesh Municipalities Act, 1994
- ss. 11-8 and 11-C - Registration of Electors Rules, 1960 -
rr. 22 and 24 - Constitution of India, 1950 - Article 325.
F
Respondent No. 1 was elected to U.P. Legislative
Assembly, from Meerut Assembly Constituency.
Appellant (the defeated candidate) challenging his
election, filed election petition before High Court. The plea
of the election petitioner was that the election should be
G declared void u/s. 100(1)(d) (iii) and (iv) of Representation
of the People Act, 1951, as votes had been cast from 21
localities which were included in the constituency, in
contravention of the published order of delimitation. High
H
Court dismissed the petition holding that the petition did
526
-
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS.
527
not disclose any cause of action. Hence the present A
appeal.
Dismissing the appeal, the Court
HELD: 1.1. Once an electoral roll is published, it
becomes the final electoral roll of the constituency.
B
Therefore, the electoral roll containing the names of
people residing in the 21 localities, is the final and valid
electoral roll for the Meerut assembly constituency. The
only alteration to the electoral roll can be brought about
by following the procedure prescribed in the relevant C
rules. [Para 17] [541-A-B]
1.2. Comparing Section 11(1)(b) of the Delimitation
Act and Section 9(1 )(b) of the Representation of the
People Act, 1950, makes it amply clear that Section 11
0
,
(1)(b) of the Delimitation Act further qualifies Section 9
-
"
(1)(b) of the Representation of the People Act, 1950 and
provides for a clear restriction on the powers of the
Election Commission in as much as the power of the
-
Election Commission shall not extend to changing the
boundaries or areas or extent of any constituency. The
E
power of the Election Commission as envisaged in the
above mentioned Sections, flows from the order
published by the Delimitation Commission. Therefore, it
,,_
•
4
is clear that the power of delimitation of constituencies
vests in the Delimitation Commission and the preparation
of electoral rolls vests in the Election Commission. The
communication dated 24.3.2007 by the Under Secretary
F
of the Election Commission of India to the Chief Electoral
Officer, Uttar Pradesh, is merely a reiteration of the above
provision. In the absence of a fresh order of delimitation
G
issued by the Delimitation Commission, the Election
'
Commission had no power to change the electoral roll for
the constituency. [Paras 23 and 24] [544-F-H; 545-H; 546A-B]
H
528 SUPREME COURT REPORTS [2009) 16 (ADDL) S.C.R.
A
Election Commission of India v. Mohd. Abdul Ghani
1995) 6 sec 721, relied on.
1.3. Section 11-B of Uttar Pradesh Municipalties Act,
1994 reveals that the State Government has the power to
B break up every municipality into territorial constituencies
to be called 'wards'. Section 11-C of the Act clearly
empowers the State Government to alter or amend the
~
delimitation carried out earlier. There is no bar on the
t.
State Government to increase the area of a ward. Hence
c
it cannot be said that delimitation is to be carried out only
by the Delimi

## Text

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A
B
[2009) 16 (AODL.) S.C.R. 526
LAXMI KANT BAJPAI
V.
HAZI YAQOOB & ORS.
(Civil Appeal No. 4201 of 2008)
DECEMBER 15, 2009
[D.K. JAIN AND H.L. DATTU, JJ.]
Election Laws - Election to State Assembly- Challenged
on the ground that electoral roll containing names from 21
C localities were in contravention of order of de/imitation -
Election petition dismissed by High Court - On appeal, held:
Election not liable to be declared void - Electoral roll was
prepared on the basis of delimitation order - Courts cannot
decide any issue relating to issuance or revision of an
D electoral roll - The remedy lies in the procedure laid down in
the prescribed rules -
In absence of a fresh order of
de/imitation issued by delimitation Commission, Election
Commission had no power to change the electoral roll for the
constituency - Election petition also did not disclose any
E material facts - Representation of the People Act, 1951 - ss.
100 (10)(d) (iii) and (iv); 9(1)(b), 30 and 80- Delimitation Act,
1972 - s. 11(1)(b) - Uttar Pradesh Municipalities Act, 1994
- ss. 11-8 and 11-C - Registration of Electors Rules, 1960 -
rr. 22 and 24 - Constitution of India, 1950 - Article 325.
F
Respondent No. 1 was elected to U.P. Legislative
Assembly, from Meerut Assembly Constituency.
Appellant (the defeated candidate) challenging his
election, filed election petition before High Court. The plea
of the election petitioner was that the election should be
G declared void u/s. 100(1)(d) (iii) and (iv) of Representation
of the People Act, 1951, as votes had been cast from 21
localities which were included in the constituency, in
contravention of the published order of delimitation. High
H
Court dismissed the petition holding that the petition did
526
-
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS.
527
not disclose any cause of action. Hence the present A
appeal.
Dismissing the appeal, the Court
HELD: 1.1. Once an electoral roll is published, it
becomes the final electoral roll of the constituency.
B
Therefore, the electoral roll containing the names of
people residing in the 21 localities, is the final and valid
electoral roll for the Meerut assembly constituency. The
only alteration to the electoral roll can be brought about
by following the procedure prescribed in the relevant C
rules. [Para 17] [541-A-B]
1.2. Comparing Section 11(1)(b) of the Delimitation
Act and Section 9(1 )(b) of the Representation of the
People Act, 1950, makes it amply clear that Section 11
0
,
(1)(b) of the Delimitation Act further qualifies Section 9
-
"
(1)(b) of the Representation of the People Act, 1950 and
provides for a clear restriction on the powers of the
Election Commission in as much as the power of the
-
Election Commission shall not extend to changing the
boundaries or areas or extent of any constituency. The
E
power of the Election Commission as envisaged in the
above mentioned Sections, flows from the order
published by the Delimitation Commission. Therefore, it
,,_
•
4
is clear that the power of delimitation of constituencies
vests in the Delimitation Commission and the preparation
of electoral rolls vests in the Election Commission. The
communication dated 24.3.2007 by the Under Secretary
F
of the Election Commission of India to the Chief Electoral
Officer, Uttar Pradesh, is merely a reiteration of the above
provision. In the absence of a fresh order of delimitation
G
issued by the Delimitation Commission, the Election
'
Commission had no power to change the electoral roll for
the constituency. [Paras 23 and 24] [544-F-H; 545-H; 546A-B]
H
528 SUPREME COURT REPORTS [2009) 16 (ADDL) S.C.R.
A
Election Commission of India v. Mohd. Abdul Ghani
1995) 6 sec 721, relied on.
1.3. Section 11-B of Uttar Pradesh Municipalties Act,
1994 reveals that the State Government has the power to
B break up every municipality into territorial constituencies
to be called 'wards'. Section 11-C of the Act clearly
empowers the State Government to alter or amend the
~
delimitation carried out earlier. There is no bar on the
t.
State Government to increase the area of a ward. Hence
c
it cannot be said that delimitation is to be carried out only
by the Delimitation Commission as the notifications
issued by the Delimitation Commission in 1973 and 1976
specify that the extent of 381 Meerut constituency shall
be the same as the Meerut municipality. Had the intention
of the Commission been to restrict the extent of the
D constituency to as it existed on the date of publication
'
~ -
of such notification, it should have been clearly specified.
There has been no subsequent amendment to the
notifications and there has been no fresh delimitation
carried out. The notification is still in force in its original
-
E form. Therefore the natural corollary to be derived is that
the territory of 397 Meerut Assembly constituency (now
381 Meerut Assembly constituency) shall comprise all that
area falling in the different wards mentioned in the
Delimitation Order as it exists on the date of making of
F the nomination for the election in question. Therefore
contention of the appellant concerning Article 325 of the
Constitution is nullified in the light of the power vested
in the State Government under the U.P Municipalities Act.
[Para 27] [547-H; 548-A-E]
G
2. The courts cannot decide any issue relating to
.,,
issuance or revision of an electoral roll. The remedy lies \
'
in the procedure laid down in the prescribed rules. There
is scope for challenging the contents of the electoral roll.
However, once an electoral roll is finally published, it
H becomes final and then no court can interfere with the
LAX.Ml KANT BAJPAI v. HAZI YAQOOB & ORS.
529
;
said publication of the electoral roll and it shall be the
A
electoral roll of the constituency. [Para 19] (541-A-B; 542-
-
• - ..
A]
B.M Ramaswamy v. B.M Krishnamurthy and Ors. AIR
1963 SCR479; Shyamdeo Pd. Singh v. Nawal Kishore
8
Yadav (2000) 8 SCC 46, relied on.
Nripendra Bahadur Singh v. Jai Ram Verma and Ors.
(1978) 1 sec 208, followed.
3.1. An election petition ·must clearly and c
unambiguously set out all the material facts which the
appellant is to rely upon during the trial, and it must
reveal a clear and complete picture of the circumstances
and should disclose a definite cause of action. In the
absence of the above, an election petition can be 0
summarily dismissed. In the present case, the averments
of the appellants in the election petition do not disclose
any definite cause of action. (Paras 35 and 38] (553-C-D;
554-C]
Samant v. George Fernandez AIR 1969 SC 1201;
E
Virender Nath Goutam v. Satpa/ Singh and Ors. (2007) SCC
617; Hari ShankarJain v. Sonia Gandhi AIR 2001 SC 3689;
Mahadeorao S/ukaji Shivankar v. Ramaratan Bapu and Ors.
2004 (7) SCC 181; V.S. Achutanandan v. P.J Francis (1999)
2 SCR 99; Azhar Hussain v. Rajiv Gandhi AIR
1986 SC
F
1253, relied on.
3.2. There has been no default on the part of any of
the authorities, so as to render any votes void. There has
been no violation of any of the provisions of the Act or
the rules framed thereunder. The communication issued
G
by the Election Commission of India dated 24.3.2007
cannot be construed as any direction on the part of the
Commission. The averments also do not disclose any
material facts. The main concern of the appellant in effect
H
"
530 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A is the addition of the 21 colonies into the Meerut
constituency and not in relation to addition or deletion of
names in the electoral roll. But yet there has been no
specific pleading in this regard in the eiection petition.
The pleading should have been with respect to the said
B inclusion of the 21 colonies into the Meerut municipality
constituency which was later incorporated into the 381
-
Meerut Municipality constituency. In the absence of such
pleadings, it can safely be said that the election petition
+.
does not disclose any material facts. and, therefore, High
c Court was right in summarily dismissing the election
petition. [Para 38] [554-F-H; 555-A-C]
Shyamadeo Parsad Singh vs. Nawal Kishore Yadav
(2000) 8 sec 46, relied on.
D
Shankar Babaji Sawant v. Sakharam Vithoba Salunkhe
• - -
1965 (2) SCR 403; Baidyanath Panjiar v. Sitanath Mahato
(1969) 2 SCC 447; KabulSingh v. Kundan Singh and Ors.
(1969) 2 SCC 452; Rampakavi Rayappa Belagali v. B.D
Jatti and Ors. (1970) 3 SCC 147; Harl Prasad Mulshanker
E Trivedi v. V.B Raju and Ors. (1974) 3 SCC 415; Mohinder
Singh Gill and Anr. v. The Chief Election
Commissioner,
New Delhi and Ors. (1978) 1SCC405; Lakshmi Chandra Sen
and Ors. v. A.K.M. Hassan Uzzaman and Ors. (1985) 4 SCC
..
689; lndrajit Baruah and Ors. v. Election Commissioner of
-
F India and Ors. AIR 1986 SC 103, distinguished.
Case Law Reference:
AIR 1963 SCR 479
Relied on.
Para 18
(2000) 8 sec 46
Relied on.
Para 20
G
...
(1978) 1 sec 208
Followed
Para 21
-I_
1995) 6 sec 121
Relied on.
Para 23
AIR 1969 SC 1201
Relied on.
Para 28
H
(2001) sec 617
Reiied on.
Para 29
LAX.Ml KANT BAJPAI v. HAZI YAQOOB & ORS.
531
2004 (7) sec 181
Relied on.
Para 31
A
AIR 2001 SC 3689
Relied on.
Para 32
(1999) 2 SCR 99
Relied on.
Para 33
AIR 1986 SC 1253
Relied on.
Para 34
B
1965 (2) SCR 403
Distinguished.
Para 40
,-!
(1969) 2 sec 447
Distinguished.
Para 41
(1969) 2 sec 452
Distinguished.
Para 41
c
(1970) 3 sec 147
Distinguished.
Para 42
(1974) 3 sec 415
Distinguished.
Para 43
(1978) 1 sec 405
Distinguished.
Para 44
...
(1985) 4 sec 689
Distinguished.
Para 45
D
"
..
AIR 1986 SC 103
Distinguished.
Para 46
(2000) s sec 46
Distinguished.
Para 47
,.,. .
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
E
4201 of 2008.
From the Judgment & Order dated 12.5.2008 of the High
"'
Court of Judicature at Allahabad in Civil Misc. Application No.
..
283769 of 2007 in Election Petition No. 8 of 2007.
F
Ravi Shanker Prasad, Abhay Prakash Sahay, Puja
-
Priyadarshani, Chander Shekhar Ashri for the Appellant.
The Judgment of the Court was delivered by
H.L. DATTU, J. 1. Mr. Hazi Yaqoob-respondent is the G
j
elected candidate in the elections held from 381 Meerut
Assembly Constituency to the U.P. Legislative Assembly. His
elections had been called in question before the Allahabad High
Court by the defeated candidate by filing Election Petition under
H
532 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R
A the provisions of Representation of People Act, 1951. Petition
is rejected by the Allahabad High Court by its order dated
12.5.2008.
2. We may now briefly state the material facts : The
8
Delimitation Commission of India under Section 10(1) of the
Delimitation Act, 1972, had issued an order in respect of the
delimitation of Parliamentary and Assembly constituencies of
the State of Uttar Pradesh and published the same by issuing
+.
a notification dated 8th December, 1973. Table B in the
c
notification provides the territorial constituencies into which the
State of Uttar Pradesh was divided for the purpose of election
to the Legislative Assembly and the extent of each such
constituency. Table 8 also shows the extent of 397 Meerut
assembly constituency (now 381 Meerut constituency) to be the
D
same as Meerut Municipality (excluding wards 1 to 3, 14 and
15). This order was also a part of the Delimitation of
~
~
Parliamentary and Assembly Constituencies Order, 1976,
issued by the Election Commission of India.
3. On 17.3.2007, notification for electing a member to the
E U.P Legislative Assembly from 381 Meerut Assembly
constituency was issued. The polling for the constituency was
held on 13.4.2007 and the results were declared on 11.5.2007.
Respondent no.1 , Hazi Yakoob was declared elected by a
)'
margin of 1089 votes.
~
F
4. Election Petition before the High Court.
The appellant had challenged the election of respondent
'
no.1 by filing an election petition before the Allahabad High
Court. The appellant mainly relied on the following grounds in
G support of the prayer in the election petition. They are :
..
\._
(i)
The result of the election in favour of the elected
candidate was materially affected by the improper
reception of 23,431 void votes as they were from
H
21 localities/colonies/mohallas outside the territorial
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS.
533
[H.L. DATIU, J.]
...
boundaries of the constituency.
A
(ii)
The aforesaid 21 localities, did not fonn part of 381
-
Meerut constituency as delimited by the 1973
Delimitation Order and yet were included within the
constituency and the voters from these colonies
B
were included in the electoral roll of the
constituency.
,_.
(iii)
The delimitation can be carried out only by the
Delimitation Commission and yet in contravention
./
of the published order of delimitation, the 21 c
colonies have been included in the constituency.
Therefore the elections is liable to be declared void
on the grounds of Section 100 (1)(d) (iii) and (iv).
of the Representation of Peoples Act, 1951.
).
D
'-
(iv)
The communication dated 24.3.2007 by the Under
Secretary of the Election Commission of India to
the Chief Electoral Officer, Uttar Pradesh, was that
the geographical boundaries delimited during the
~.
previous delimitation cannot undergo any change,
E
unless the new delimitation order is implemented.
It is further stated that, on 26.3.2007 the Officer on
Special Duty, Chief Electoral Officer, U.P forwarded
;
the aforesaid letter to the District Election Officer,
--> "
Meerut, informing him that there cannot be any
F
change in the territorial boundaries of the
Legislative Assembly constituency until the
implementation of the new delimitation order and
this amounts to a direction on the part of the
Election Commission of India, and despite such
G
direction the names of the voters from the 21
,..}-
localities continued to be included in the electoral
roll of 381 Meerut Assembly constituency and were
permitted to vote in the elections. Therefore, the
election of returned candidate should be declared
as void on the ground that the result of the election
H
·~
I
•
534
SUPREME COURT REPORTS [2009) 16 (ADDL) S.C.R.
..
A
insofar as it concerns the returned candidate has
been materially affected by improper reception of
votes and by non-compliance of the provisions of
•
the Constitution and the Rules made under the 1951
Act.
B
5. After service of notice of election petition, the respondent
no.1 did not choose to file written statement, but filed an
~.
'·
application under Order VII Rule 11 of the Code of Civil
Procedure to reject the election petition, primarily on the
c
ground, that no cause of action has been made out on the
basis of the averments made in the election petition and
therefore the election petition is liable to be dismissed. Further,
Jl"
according to respondent No.1, the averments made by the
appellant cannot be ground for declaring an election to be void
D
under Section 100 ( 1) ( d) (iii) and (iv) of the Representation of
>\
Peoples Act, 1951.
-·
6. Order passed by the High Coult :
The High Court after a detailed discussion of the
E pleadings of the parties has come to the conclusion that election
petition does not disclose any cause of action. The material fact
to be included in the election petition should have been in
relation to the non-inclusion of the 21 localities in the Meerut
)
municipality constituency. Accordingly, the High Court has
'
F
dismissed the election petition for non-disclosure of cause of
action. Hence, the appeal. It may be mentioned that there was
no appearance on the side of the respondents. However, after
the matter was heard and reserved for judgment, the learned
counsel Sri Praveen Jain has entered appearance and with the
G
permission of the court, has filed his written submissions. The
same are taken on record.
~.-
7. Contentions on behalf of the appellant:
Mr. Ravi Shankar Prasad, the learned senior counsel for
H the appellant submitted that in the election petition filed, the
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS.
535
[H.L. DATTU, J.]
appellant has sufficiently indicated the cause of action and the A
material facts, though the provision of the Act is not mentioned
and therefore, it is futile to contend that the appellant has not
spelt out the cause of action in the pleadings. In aid of his
submission the learned senior counsel has placed reliance on
the observations made by this Court in the case of Shri B
...
Shankar Babaji Savant v. Shri Sakharam Vithoba Salunkhe
and Ors., 1965 (2) SCR 403. It is further submitted that if the
electoral roll was prepared in violation of Article 173 of the
Constitution of India, the same is a nullity and, therefore, the
result of the election in so far as it concerns the elected c
candidate has been materially affected. It is further contended
that Section 2(b) of the Representation of People Act, 1950
provides that "Assembly Constituency" means a Constituency
f
provided by law for the purpose of election to ttie legislative
'
Assembly of a State. It shall be filled by persons chosen by
D
direct election from Assembly Constituencies and Section 7(3)
of the Act provides that the extent of each Assembly
Constituency shall be as determined by the orders of the
Delimitation Commission made under the provisions of
Delimitation Act, 1972 and therefore, the electoral roll for E
elections to the State Legislative Assembly must relate only to
"
the extent of the territorial division as determined by the
"
Delimitation Commission. The geographical extent of the
Assembly Constituency cannot be changed nor can any area
be added therein or excluded therefrom by any authority except
F
the Delimitation Commission. The learned senior counsel would
submit, that, the electoral roll of an Assembly Constituency must
be confined to the area or extent of the concerned Assembly
Constituency and cannot include any area outside the territorial
limits of that Assembly Constituency nor can voters of any such
,,.;.
other area vote in that Assembly Constituency and in the instant G
case, voters from outside the territorial boundaries of 381
Meerut Assembly Constituency were permitted to vote in the
elections held and though their votes were void, they were
improperly and illegally received as valid votes and the same
H
536 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R
A has materially affected the result of the election in so far as it
concerns the returned candidate, and therefore, his election is
liable to be declared void under Section 100(1)(d)(iii) and (iv)
of Representation of the People Act, 1951.
8
8. Contentions on behalf of respondent:
The learned counsel Shri Praveen Jain for the respondent
submitted that the Election Petition is liable to be dismissed
as it does not disclose any cause of action. It is further
submitted, that, the election petition is based on the ground that
C certain areas outside the territory of 381 Meerut Assembly
Constituency were not only included in this constituency but the
voters of these areas were also allowed to vote in the elections
and this has materially affected the result of the election insofar
as it concerns the returned candidate and thus the dispute in
D the present election petition is about the addition of some area
in the territorial constituency and not about any addition or
deletion of names in the electoral roll and this cannot be a
ground for declaring the election of the returned candidate to
be void under Section 100(i)(d)(iii) and (iv) of the
E Representation of Peoples Act, 1951. It is further contended
that the election petition can be filed only if some illegality
contemplated under Section 100 of the Act is found to have
been committed during the process of the election but in the
present case, the alleged illegality that has been pointed out
F
relates to a stage prior to the commencement of the process
of election. It is submitted 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 was illegally entered and any
entry in the electoral roll of a constituency cannot be amended
G or deleted after the last date of making nomination for the
election in that constituency. In aid of his submission, reliance
is placed on several decisions of this Court. The reference will
be made to those decisions while considering the contentions
canvassed by the learned counsel for the parties.
H
•
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS.
537
[H.L. DATIU, J.]
9. Discussion:
A
Section 83 of the Representation of Peoples Act, 1951
deals with the contents of an election petition. Section 83 (1)
of the Act reads:-
"An election petition:-
B
'~
(a)
shall contain a concise statement of the material
facts on which the appellant relies;
(b)
shall set forth full particulars of any corrupt practice c
that the appellant alleges, including as full a
statement as possible of the names of the parties
alleged to have committed such corrupt practice
and the date and place of the commission of each
!
such practice; and
D
(c)
shall be signed by the appellant and verified in the
manner laid down in the Code of Civil Procedure,
1908 for the verification of pleadings."
10. Sub-section (d) of Section 100 of the Representation
E
of Peoples Act, 1951 which deals with grounds for declaring
election to be void reads:-
,.,
'~
"(d) that the result of the election, in so far as it concerns
a returned candidate, has been materially affectedF
(i)
by the improper acceptance or any nomination, or
(ii)
by any corrupt practice committed in the interests
of the returned candidate by an agent other than his
election agent, or
G
~l-
(iii)
by the improper reception, refusal or rejection of
any vote or the reception of any vote which is void,
or
(iv)
by any non-compliance with the provisions of the
H
A
538
SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
Constitution or of this Act or of any rules or orders
made under this Act."
11. The power to carry out delimitation of the
constituencies has been vested with the Delimitation
8 Commission constituted under the Delimitation Act, 2002. The
object of the Act is to provide for the re-adjustment of the
allocation of seats in the House of People to the States, the
~
total number of seats in the legislative assembly of each State,
the division of each State and each Union Territory having a
C legislative assembly in to territorial constituencies for elections
to the House of People and legislative assemblies of the States
and Union Territories and for matters connected therewith.
Section 8 of the Act provides for re-adjustment of number of
seats, Section 9 of the Act provides for Delimitation of
constituencies, Section 10 of the Act provides for publication '
D of orders and their date of operation by Commission in the
Gazette of India and in the official Gazettes of the State
concerned and on such publication, every such order shall have
the force of law and shall not be called in question in any court.
Section 11 of the Act mandates that the Election Commission
E shall maintain delimitation orders up-to-date.
12. The appellant relies on the purported communication
dated 24.3.2007 by the Under Secretary of the Election
Commission of India to the Chief Electoral Officer, Uttar
F Pradesh. The effect of the communication was that the
geographical boundaries delimited during the previous
delimitation cannot undergo any change, unless the new
delimitation order is implemented. On 26.3.2007 the Officer on
Special Duty, Chief Electoral Officer, U.P forwarded the
"
G aforesaid letter to the District Election Officer, Meerut informing
him that there cannot be any change in the territorial boundaries
~ -
of the Legislative Assembly constituency until the
implementation of the new delimitation order. The contention
of the appellant is that this amounts to a direc:iun on the part
H
of the Election Commission of India, and despite such direction
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS.
539
[H.L. DATIU, J.]
the names of the voters from the 21 localities continued to be
A
included in the electoral roll of 381 Meerut Assembly
constituency. The appellant further contends that if the total
number of votes received by respondent no.1 from these
localities were to be excluded, the results oi' the election would
have been different, and hence the results of the election have
B
been materially affected.
13. The process and procedure of preparing electoral rolls
is governed by the Registration of Electors Rules, 1960. Rule
24 of the said rules reads:-
"24. Special provision for preparation of rolls on redelimitation of constituencies.--
(1) If any constituency is delimited a new in accordance
c
t
with law and it is necessary urgently to prepare the roll for
0
such constituency, the Election Commission may direct
that it shall be prepared--
(a) by putting together the rolls of such of the existing
constituencies or parts thereof as are comprised within the
new constituency; and
E
(b) by making appropriate alterations in the arrangement,
serial numbering and headings of the rolls so compiled.
(2) The roll so prepared shall be published in the manner
F
specified in rule 22 and shall, on such publication, be the
electoral roll for the new constituency."
14. The Rule provides that if any constituency is delimited
a new in accordance with law and if it is necessary to prepone
1the roll for such constituency, the election commission may
G
,. direct that it shall be prepared by putting together the rolls .of
such of the existing constituencies or parts thereof as are
comprised within the new constituency. The rolls so prepared
requires to be published in the manner provided in Rule 22 of
the Rules. On such publication of the rolls, the same shall be
H
540 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R
A the electoral roll for the new constituency.
15. In the present case, there has been no re-delimitation
of the Meerut constituency carried out by the Delimitation
Commission under the auspices of the Delimitation Act. The
8 earlier order published by the Commission is still (n force. As
stated above, delimitation of parliamentary and assembly
constituencies is the exclusive domain of the Delimitalion ..
c
D
Commission. The Election Commission's power with respect
·
to delimitation of constituencies extends to correcting any
mistakes which might have crept in the delimitation order.
16. In other circumstances, however, once an electoral roll
is published, it becomes the final electoral roll of the
constituency. This is also specified in Rule 22 of the specified
rules which reads:-
"22. Final publication of roll.-
(1) The registration officer shall thereafter--
(a) prepare a list of amendments to carry out his decisions
E
under rules 18, 20, 321 and 21A and to correct any clerical
or printing errors or other inaccuracies subsequently
discovered in the roll;
F
G
H
(b) publish the roll, together with the list of amendments,
by making a complete copy thereof available for inspection
and displaying a notice in Form 16 at his office; and
(c) subject to such general or special directions as may
be given by the Election Commission supply, free of cost,
two copies of the roll, as finally published, with the list of
amendments, if any, to every political party for which a
symbol has been exclusively reserved by the Election \ ..
Commission.
(2) On such publication, the roll together with the list of
amendments shall be the electoral roll of the constituency."
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS.
541
[H.L. DATTU, J.]
17. Hence, the electoral roll published becomes the
A
electoral roll of the constituency, and therefore the electoral roll
containing the names of people residing ir the 21 localities, is
the final and valid electoral roll for the Meerut assembly
constituency. The only alteration to the electoral roll can only be
brought about by following the procedure prescribed in the
B
relevant rules. In this context it is also pertinent to mention
0
Section 30 of the Representation of Peoples Act, 1950. The
section reads:-
"No civil court shall have jurisdiction--
c
(a) 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
.J
(b) to question the legality of any action taken by or under
D
the authority of an electoral registration officer, or of any
decision given by any authority appointed under this Act
for the revision of any such roll."
18. The wordings of the section are very clear and it
E
conveys the meaning that a High Court cannot set aside an
election on the ground that though the name of a candidate is
""
in the list, it had been included therein illegally. This court in the
I
case of B.M Ramaswamy v. B.M Krishnamurthy and others
(AIR 1963 SCR 479), has stated that "the terms of the section
are clear and the action of the electoral registration officer in
F
including the name of the appellant in the electoral roll, though
illegal, cannot be questioned in a civil court : but it could be
rectified only in the manner prescribed by law, i.e., by preferring
an appeal under rule 24 of the Rules, or by resorting to any other
appropriate remedy."
G
,_}
19. It is clear from the above discussion that the Courts
cannot decide any issue .relating to issuance or revision of an
electoral roll. The remedy lies in the procedure laid down in the
prescribed rules. There is scope for challenging the contents
H
542
SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R
A of the electoral roll. However, once an electoral roll is finally
published, it becomes final and then no court can interfere with
the said publication of the electoral roll and it shall be the
electoral roll of the constituency.
B
20. In this regard, reference can be made to the
observations made by this Court in the case of Shyamdeo Pd.
Singh v. Nawal Kishore Yadav, [(2000) 8 SCC 46]. The Court
has observed that inclusion of person or persons in the
~~
electoral roll by an authority empowered in law to prepare the
c
electoral rolls though they were not qualified to be so enrolled
cannot be a ground for setting aside an election of a returned
candidate under Sub-clause (iii) or (iv) of Clause (d) of Subsection ( 1) of Section 100 of the Representation of Peoples
Act, 1951. The court has observed:-
D
''The electoral rolls may contain-error and they may remain
~
to be corrected or the appeals in respect thereof may be
pending, the electoral roll effective for the ensuing election
must achieve a finality at a given point of time (such as
the last date prescribed for filing the nominations). It has
E
to be remembered that right to contest an election, a right
to vote and a right to object to an ineligible person
exercising right to vote are all rights and obligations
created by Statute. They are not the rights in common law.
...
Bringing into existence Houses or Institutions responsible
F
for functioning of a democracy have a vital constitutional
objective to achieve as they are so essential for the
functioning of a democracy. A breach of any statutory right
or obligation should not come in the way of the process
directed towards fulfilling the high objective of bringing into
G
existence of a House or Institution contemplated by
Constitution as enabling democratic functioning of the
country."
~ '
The Court has further observed:
H
"To sum up we are of the opinion that inclusion of person
~
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS.
543
[H.L. DATTU, J.]
or persons in the electoral roll by an authority empowered
A
in law to prepare the electoral rolls, though they were not
qualified to be so enrolled, cannot be a ground for setting
aside an election of a returned candidate under sub-clause
(iii) or (iv) of clause (cf) of sub-section (1) of Section 100
of the Representation of the People Act, 1951. A person
B
•
enrolled in the electoral list by an authority empowered by
...
law to prepare an electoral roll or to include a name therein
4
is entitled to cast a vote unless disqualified under subsections (2) to (5) of Section 62 of the Representation of
the People Act, 1951. A person enrolled in the electoral c
roll cannot be excluded from exercising his right to cast
vote on the ground that he did not satisfy the eligibility
requirement as laid down in Section 19 or 27(5) of the
Representation of the People Act, 1950."
./
21. The Constitution Bench of this court in the case of D
;
Nripendra Bahadur Singh v. Jai Ram Verma and ors., [1978]
1 sec 208, wherein it was held that the finality of the electoral
roll cannot be challenged in an election petition even if certain
~
irregularities had taken place in the preparation of the electoral
w
roll or if subsequent disqualification had taken place and the
E
electoral roll had on that score cannot be corrected before the
last hour of making nominations. The court further stated that
"-
after that dead line the electoral roll of a constituency cannot
•
be interfered with and no one can go behind the entries except
for the purpose of considering disqualification under Section
F
16 of the 1950 Act.
22. Section 11 of the Delimitation Act, 2002 reads:-
"11. Power to maintain delimitation orders up-to-date.- (1)
G
....
The Election Commission may, from time to time, by
-~>-
notification in the Gazette of India and in the Official
Gazette of the State concerned,--
(a) correct any printing mistake in any of the orders made
by the Commission under section 9 or any error arising
H
'
' ....
----....._______
544 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.
;.
A
therein from an inadvertent slip or omission; and
(b) where the boundaries or name of any district or any
territorial division mentioned in any of the said orders are
or is altered, make such amendments as appear to it to
B
be necessary or expedient for bringing the orders up-todate, so, however, that the boundaries or areas or extent
of any constituency shall not be changed by any such -
notification.
•
(2) Every notification under this section shall be laid, as
c
soon as may be after it is issued, before the House of the
People and the Legislative Assembly of the State
concerned."
It is pertinent to consider Section 9 (1) (b) of the
D Representation of People Act, 1950. It reads:-
•
..
"(1) The Election Commission may, from time to time, by
notification published in the Gazette of India and in the
Official Gazette of the State concerned,-
... .,.
E
............................................................................................................
(b) where the boundaries or name of any district or any
territorial division mentioned in the Order are or is altered,
,,
make such amendments as appear to it to be necessary
F
or expedient for bringing the Order up-to- date."
23. Comparing Section 11(1)(b) of the Delimitation Act and
Section 9 (1)(b) of the Representation of People Act, 1950,
makes it amply clear that Section 11 (1 )(b) of the Delimitation
Act further qualifies Section 9 ( 1 )(b) of the Representation of
.._
G People Act, 1950 and provides for a clear ~restriction on the
powers of the Election Commission in as much as the power
i ,-
of the Election Commission shall not extend to changing the
boundaries or areas or extent of any constituency. The power
of the Election Commission as envisaged in the above
H mentioned sections, flows from the order published by the
. ..l.
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS.
545
[H.L. DATIU, J.]
Delimitation Commission. A three Judge Bench of this court
A
in the case of Election Commission of India v. Mohd. Abdul
Ghani [(1995) 6 SCC 721] has explained the aforesaid
principle. In this case the issue was that the river Ganges had
started changing its course in 1957, that ultimately resulted in
causing 16 villages to be located towards the east bank of the
B
river. After this change these villages came to form part of the
territorial division named as District Maida. The State
Government made the con?equential changes in the description
of these villages when they became part of District Maida for
all administrative purposes. In spite of this geographical change c
resulting in inclusion of these 16 villages in the territorial division
of District Maida for administrative purposes, the position of
these villages remained unaltered for election purposes and
they continued to form part of 8-Jangipur Parliamentary
Constituency in accordance with the Delimitation Order of 1976
D
made on the basis of the previous census held ii) 1971. The
residents of these villages filed a writ petition claiming that o
as a result of the above geographical change, these 16 villages
should now form part of the Maida Parliamentary Constituency
since they have become a part of District Maida instead of the
earlier District Murshidabad. It was claimed that this is the duty
E
cast on the Election Commission to make such a change by
virtue of Section 9(1) (b) of the Representation of the People
Act, 1950. However this court placing reliance of the import of
the wordings of Section 9 (1)(b) of the Representation of
Peoples Act, 1950 and Section 11 (1)(b) of the Delimitation
F
Act, observed that the power of the Election Commission as
envisaged by the sections extended to merely update the
Delimitation Order by making the necessary changes on
account of subsequent events to correct the description in the
Delimitation Order which has become inappropriate and
G
therefore this power cannot extend to alteration of the
boundaries or area or extent of any constituency as shown in
the Delimitation Order.
24. Therefore, it is clear that the power of delimitation of
H
546 SUPREME COURT REPORTS [2009] 16 (ADOL.) S.C.R.
A constituencies vests in the Delimitation Commission and the
preparation of electoral rolls vests in the Election Commission.
The communication dated 24.3.2007 by the Under Secretary
of the Election Commission of India to the Chief Electoral
Officer, Uttar Pradesh, is merely a reiteration of the above
B provision as rightly observed by the High Court. In the absence
of a fresh order of delimitation issued by the Delimitation
.,,,_
Commission, the Election Commission had no power to
~-.
change the electoral roll for the constituency.
c
24. The notification dated 8th December, 1973 published
by the Delimitation Commission mentions that the extent of 397
Meerut Assembly constituency shall be Meerut Municipality
excluding Ward Nos. 1, 2, 3, 14 and 15 :
"MEERUT DISTRICT
D
'>(_ ..
···································································
396. Meerut
Cantonment : Wards 1 to 3, 14 and 15 in Meerut
-
E
Municipality, Meerut Cantonment, Kanker Khera T.A.,
Abdullapur T.A., Buxer Khera T.A., and L.Cs., 36- Nagla
Tashi Kasampur, 37-Sikhera, 38- Behchola, 43Aurangshahpur Diggi, and 44- Abdullapur in Meerut
.¥
pargana in Mee rut tahsil. 397. Meerut : Mee rut
F
Municipality, (excluding wards 1 to 3, 14 and 15)"
26. The notification published on 16th January 1976 also
stated the same for 397 Meerut constituency (now 381
constituency). It is the appellanfs contention that localities which
G were outside the territorial boundaries of the Mee rut
constituency at the time of publication of these notifications,
... .
were subsequently included. In light of this contention it is
pertinent to look at the relevant provisions of the U.P
Municipalities Act, 1994 :
H
Section 11-8 of the Act reads:-
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS.
547
,I.
[H.L. DATIU, J.]
"11-8.