# [1963] 3 S.C.R. 479

- **Citation:** [1963] 3 S.C.R. 479
- **Court:** Supreme Court of India
- **Decided:** 1961-08-02
- **Bench:** B. P. SrNHA, S. J. Imam: K, SuBBA RAO, K. N. W'Anchoo, J. c. SHAH, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1963-3-s-c-r-479-2639
- **Pages:** 10

## Headnote

.
Election Diepute-Validity of
election
challenged -
Authenticated liBtB of voterB-Autlwrity of courtB to inter/er.-
Mysore Village Panchayate and Local Hoards Act, 1959 (Mys.JO.
of 1959\ sB. 9, 10, 13-Mysnre Pancltayats and 'l'aluk Boards
Elettion Ruie1, 1959, r. 3-Representation oj the People Act,
1950 (43of1950), ss. 23, 24, 30-Representation rif tl;e People
Rules, 1956, Rule 26.
·
Elections were held to a l'anchayat in the State of
Mysore. The appellant and five others filed their nomination
papers within the prescribed date.
The appellant and
respondent2 were duly declared elec1ed.
Respondent I
filed an election petition under s. 13 of the Mysore Village
Panchayats and Local Boards Act, 1959, for a declaration
that the appellant. wa• not duly el.ected and he himself was
duly elect<d.
The Munsif held that on the date fixed for
filing of nomination papers, the name of the appellant was
not in the authenticated list of voters and, therefore, he was
not entitled to file his nomination papers. The election of
the appellant was set a.side.
The High Court upheld the
conclusion of the Munsif oc the basis of a different reasoning.
It held that though the
name of the appellant was
included before the prescribed date in the electoral roll of
the legislative const;tuency under s. 23 of the Representation
of the People Act, 1950, it was so included in direct violation
of r. 26 of the Representation of the People Rules, 1956, and,
therefore, the said inclusion was void. The appellant came
to this Court by special leave.
Heid, that in view of s. I 0 of the Act, it could not be
said that there was any improper acceptance of the nomina·
tion papers of the appellant.
As his name was in the list of
voters, he was qualified to be elected as a member of the
Panchayat. There was no provision in the Act which autho·
rised the High Court to set aside the election on the ground
that though the name of a candidate was in the list, it had
been included therein illegally. The action of the Electoral
~eglstration Officer in including the name of the appell<int
'
1902-,
.. '·
·-~
196$
1
BJ.! .. B,amaJwamy
'
..
i IJ.JL; Krishnamurthy
Saib~• Rao J.
•
480
SUPREME COURT REPORTS [1963]
in the Electoral Roll might be illegal, but the same could not
be questioned in a civil court. The mistake could be rectified
only in the manner prescribed by law by preferring an appeal
under r. 24 of the Rules or by resorting to any other approp·
riate remedy. The action of the Electoral Registration Officer
was not a nullity. He had admittedly jurisdiction to entertain
the application for inclusion of the name of the appellant in
the Electoral Roll and take such action as he deemed fit. The
non-compliance
with
the procedure prescribed did not
affect his jurisdiction, although that might render his action
illeg'\I.
CIVIL APPELLATE JuRISDIOSION: Civil Appeal
No. 233 of 1962.
Appeal by special leave from the judgment and
order dated August 2, 1961, of the Mysore High
Court in Writ Petition No. 814 of 1961.
B. Vendantiengar and 8. N. Andley, for the
appellant.
. '
The respondents did not appear.
1962. July 30'. The Judgment of the Court
was delivered by
SuBBA RAO, J.-This appeal by special leave
arises out of a. dispute in respect of the election
to the Panchayat of Byappanahalli, from its first
constituency, in the State of Mysore.
The calendar of events for the said election
was as follows:
·Notification of election
... 6-2-1960
Date by which candidates
had to file nomination papers
16·3-1960
Date of the scrutiny of nomination papers.
Poll.
p~o1ar~tion of res~lt.
~ : ! "'>I
.•
18-3-1960
13-4-1960
,._,
l~-4-19(_)0
•
I
,J
3 S.C.R.
'
.!.
!
~
'
J
'
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SUPREME COURT REPORTS
4Si
: The appellant and five others filed their nor~ination
' papers within the prescribed date. The polhng took
'place on the scheduled date, namely April 13, 1960.
, The candidates secured votes as ment10ned under:
Appellant
169 votes
. Respondent 2
158 votes
Respondent 1
128~votes
Respondent 3
115 votes
Re

## Text

38.C.R.
SUPREME COURT REPORTS
479
B. M. RAMASWAMY
v·
B. M. KRISHNAMURTHY AND OTHERS
(B. P. SrNHA, C. J., S. J. IMAM: K, SuBBA RAO, K.
N. W'ANCHOO, J. c. SHAH and N. RAJAGOPALA
AYYANGAR, JJ.)
.
Election Diepute-Validity of
election
challenged -
Authenticated liBtB of voterB-Autlwrity of courtB to inter/er.-
Mysore Village Panchayate and Local Hoards Act, 1959 (Mys.JO.
of 1959\ sB. 9, 10, 13-Mysnre Pancltayats and 'l'aluk Boards
Elettion Ruie1, 1959, r. 3-Representation oj the People Act,
1950 (43of1950), ss. 23, 24, 30-Representation rif tl;e People
Rules, 1956, Rule 26.
·
Elections were held to a l'anchayat in the State of
Mysore. The appellant and five others filed their nomination
papers within the prescribed date.
The appellant and
respondent2 were duly declared elec1ed.
Respondent I
filed an election petition under s. 13 of the Mysore Village
Panchayats and Local Boards Act, 1959, for a declaration
that the appellant. wa• not duly el.ected and he himself was
duly elect<d.
The Munsif held that on the date fixed for
filing of nomination papers, the name of the appellant was
not in the authenticated list of voters and, therefore, he was
not entitled to file his nomination papers. The election of
the appellant was set a.side.
The High Court upheld the
conclusion of the Munsif oc the basis of a different reasoning.
It held that though the
name of the appellant was
included before the prescribed date in the electoral roll of
the legislative const;tuency under s. 23 of the Representation
of the People Act, 1950, it was so included in direct violation
of r. 26 of the Representation of the People Rules, 1956, and,
therefore, the said inclusion was void. The appellant came
to this Court by special leave.
Heid, that in view of s. I 0 of the Act, it could not be
said that there was any improper acceptance of the nomina·
tion papers of the appellant.
As his name was in the list of
voters, he was qualified to be elected as a member of the
Panchayat. There was no provision in the Act which autho·
rised the High Court to set aside the election on the ground
that though the name of a candidate was in the list, it had
been included therein illegally. The action of the Electoral
~eglstration Officer in including the name of the appell<int
'
1902-,
.. '·
·-~
196$
1
BJ.! .. B,amaJwamy
'
..
i IJ.JL; Krishnamurthy
Saib~• Rao J.
•
480
SUPREME COURT REPORTS [1963]
in the Electoral Roll might be illegal, but the same could not
be questioned in a civil court. The mistake could be rectified
only in the manner prescribed by law by preferring an appeal
under r. 24 of the Rules or by resorting to any other approp·
riate remedy. The action of the Electoral Registration Officer
was not a nullity. He had admittedly jurisdiction to entertain
the application for inclusion of the name of the appellant in
the Electoral Roll and take such action as he deemed fit. The
non-compliance
with
the procedure prescribed did not
affect his jurisdiction, although that might render his action
illeg'\I.
CIVIL APPELLATE JuRISDIOSION: Civil Appeal
No. 233 of 1962.
Appeal by special leave from the judgment and
order dated August 2, 1961, of the Mysore High
Court in Writ Petition No. 814 of 1961.
B. Vendantiengar and 8. N. Andley, for the
appellant.
. '
The respondents did not appear.
1962. July 30'. The Judgment of the Court
was delivered by
SuBBA RAO, J.-This appeal by special leave
arises out of a. dispute in respect of the election
to the Panchayat of Byappanahalli, from its first
constituency, in the State of Mysore.
The calendar of events for the said election
was as follows:
·Notification of election
... 6-2-1960
Date by which candidates
had to file nomination papers
16·3-1960
Date of the scrutiny of nomination papers.
Poll.
p~o1ar~tion of res~lt.
~ : ! "'>I
.•
18-3-1960
13-4-1960
,._,
l~-4-19(_)0
•
I
,J
3 S.C.R.
'
.!.
!
~
'
J
'
t
SUPREME COURT REPORTS
4Si
: The appellant and five others filed their nor~ination
' papers within the prescribed date. The polhng took
'place on the scheduled date, namely April 13, 1960.
, The candidates secured votes as ment10ned under:
Appellant
169 votes
. Respondent 2
158 votes
Respondent 1
128~votes
Respondent 3
115 votes
Respondent 4
38 votes
Respondent 5
46 votes
I
'
The appellant and respondent 2 were duly declared
elected to the Panchayat.
.
Respondent 1 filed an election petition under
s. 13 of the Mysore Village Panchayats and Local
Boards Act, 1959 (Mysore Act No. 10 of 1959),
hereinafter called the Act, in the Court of the
Second Munsift', Bangalore, for a declaration that
the appellant was not duly elected and for a further declaration that the first respondent was duly
elected. The case of the first respondent, as disc},
osed in his petition. was that on the date fixeq
for filing of nominations the appellant's name was
not in the authentieated list of voters published
under r. 3, cl. (5) of the Mysore Panchayats and
Tuluk Boards Election Rules, 1959, hereinafter
called the Rules, and, therefore, he was not entitled to file his nomination. It was his further case
that the appellant was not ordinarily a resident of
Byappanahalli and, therefore, he was disqualified
from
standing
for
the election
from' that
constituency.
The learned Munsift' held on the second point .
that the appellant was ordinarily a resident of the
said village and -was, therefore, qualified to be
included in the electoral roll of the Panohayat,
1962
B.M. Ra.izaswam';
v: .
B .M. Krishnam•rl
SubbaRaoJ.
'1962.
·B~it.~ ·R·fJma;wami
'
- V._
B.M. ~1i11m·amurthy
s"~bbo Rao
-
482
SUPREME COURT REPORTS [1963]
but he came to the conclusion that his name was
not included in the authenticated list of voters of
the said Paiichayat. On that finding, he set aside
the election of the appellant and declared the first
respondent, who secured the next highest number
of votes, to have been duly elected in his placa.
On appeal, the lee.rued Judges of the High
Court, after noticing the finding of the Munsiff to
the effect that the appellant's name was not incl_uded in the authenticated list of voters for the
Panchayat, observed that they did not agree with
the reasoning given by the learned Munsiff, but
they agreed with his conclusion on the basis of a
different reasoning. They held that though the
name of the appellant was included before the
prescribed date in the electoral roll of the legislative constituency under s. 23 of the Representation of the People Act, 1950, it was so included
in direct violation of r. 26 of the Representation
of the People Rules, 1956, and that, therefore, the
said inclusion was void. Having so held, they
agreed with the lflarned Munsiff that the appellant's
election was liable to be set aside. Hence the
appeal. It may be mentioned that there was no
appearance on the side of the respondents.
Before considering the point raised, it will
be convenient to clear the ground.
Sec~ion 9
of the Act reads:
'•The electoral roll of the Mysore legislative
Assembly for the time being in force for such
part of the constituency of the Assembly as is
included in any Panchayat constituency shall
for the purpose of this Act, be deemed to b~
the list of voters for such Panchayat, constituency. The Secretary of the Panchayat shall
maintain in the prescribed manner a list of
voters for each Panchayat
constituency,
\,
)
{
a s.d.tt.
SUPREME COURT REPORTS
483
Explanation.-For the purpose of this section,
eleotoral roll shall mean an electoral roll
prevared under the provisions of the Representation of the People Aot, , 950 (Central Act
XLIII of 1950) for the time being in force."
Seotion 10 says:
'•Every person whose name is in the
list of voters of any Panchayat oonstituency
shall, unless disqu1tlified under this Act or
under any other law for the time being in
force, be qualified to be elected as a member
of the Panchayat·: .............. : ......... ".
Rule 3 of the
l{ules prescribed
the
mode of
maintenanoe and custody of list of voters. It says,
among other things, that the Secretary of the P~ n·
chayat shall maintain a list of voters for each
panohayat constituency, that he shall authenticate
such list by affixing on it the seal of the Panchayat, and that he shall, from time to time, carry
out in the authenticated copy of each such list, any
corrections that may be made in the Electoral Roll
of the Mysore Legislative Assembly and initial
below each correction
so made. It will
be
olear from the said provisions that the relevant
part of the electoral roll of the Mysore Legislative
Assembly is deemed to be the list of voters for the
panohayat constituency, and that the Secretary of
the panchayat has to maintain a duly authenticated separate list of voters of the said constituency.
The learned Munsiff held tha,t, as the said authentioated list of panchayat voters was not produced
before him, it was not established that the name
of the appellant was included therein on the date
·of nomination. The learned Judges of the High
Court did not accept the said finding on the ground
that they did not agree with the reasoning given
by the learned • Munsiff; but unfortunately they
have not giveD their reasons for differing from him.
l9GB
-B.M. Rama1i.vain i
v.
B.M. Krishnamurthy
Subba Rao J.
1962
B.M. Ramaswomi
v.
B~M,' Kiishliamu1thy
SulibiiR•• J.
484
SUPREME COURT REPORTS ni963j
But a persual of the election petition shows that
the first respondent accepted in his petition that_.the
name of the appellant was included in the said
au then Licated list on the date when he · filed his
nomination paper. -Presumably because of that fact
the learned Judges of the High Court did not think
fit to sustain the finding of the learned Munsiff.
In view of the said admission in the petition, it
cannot be expected of the appellant to summon the
authenticated list to prove what has already been
admitted.
This leads us to the consideration of the only
11ubstantial question that arises in the appeal. Learned counsel for the appellant contends that the
~-
High Court went wrong in considering the question
of the legality of the inclusion of the appellant's
name in the electoral roll of tile Mydore Legislative
Assembly, as, under a. 30 of the Representations of
the People Act, the· jurisdiction of civil courts to
question the legality of an action taken by, or imder the authority of, the Electoral Registration
O.fficer,was barred.
It is common case that the name of appellant
was included in the electoral roll of the Mysore legislative Assembly before the date prescribed for
filing of nomination papers. But it is said that the
Electoral .Registration Officer did not follow tile
procedure prescribed in that behalf. The provisions
. relevant to the question raised may be read conveniently at this stage. Section 23 of the Representation of the People Act, 1950, reads:
( l) Any parson whose name is not included' in
the electoral roll of a_ constituency may
apply in the manner hereinafter provided
for the inclusion of his name in that roll.
>-
•
a s.c.R.
SUPREME COURT REPORTS
485
Rule''26 of the Representation of the People (preparation of Electoral Rolls) Rules, 1956, says:
(i) Every application under sub-section (i) of
section 23 shall be made in duplicate in
Form 4 (Part I) and shall be accompanied-
( a)· where it is to the chief electoral officer,
by a fee of ten rupees, and
(b} where it is to the electoral registration
officer, by a fee of one rupee.
(2) The fee specified in sub-section (i) shall be
paid by means of non-judicial_ stamps.
(3) The rhief electoral officer or, as the case
may _be, the electoral registration officer
shall immediately on receipt of such application, direct that one copy thereof be
posted in some conspicuous place in his
office together with a notice inviting objections to such application within a period of
seven days from the date of such posting.
(4) The chief electoral officer or, as the case
may be, the electoral registration officer
sha.11, as soon as may be after the expiry
of the period specified in sub-rule (3), consider the objections, if any, received by
him and shall, if satisfied that the appellant
is entitled to be registered in the electoral
roll, direct his name to be included therein.
Section 24 of the Representation of the People
Act, 1950, provides:.
An appeal shall lie within such time and in
such manner as may be prescribed-
(a) to the chief eleotoral officer, from any
order of the electoral registration officer
under f!ection\ 22 or section 23, anq
1962
1J.M. Ramasiiami
v.
B.M. K;;,hnamurth_
Subha Rao ·1.
J96f
/J.M. Ramaswam~
••
B.M. K,ishnamur.thy
Subba Rao .] ,
486
SUPREME COURT REPORTS [1963]
(b) to the Election Commission, from any
order of the chief electoral officer under
section 23 .
Rule 27 of the Representation of the People (Preparation of Electoral Rolls )Rules,1956, prescribes
the procedure for preferring appeals.
It is not disputed that an . application was
filed before the registration officer for the inclusion
of the appellant's name in the electoral roll; it is
also common case that the electoral registration offi- c
cer did not follow the prooednre precribed in r. 26
relating to the posting of the a.pplication in a conspi·
cuous place and inviting objections to such application.
It cannot, therefore, be denied that the inclusion of
the name of the appellant in the electoral was clearly
illegal. Under s. 30 of the Representation of the
People Act,1950, no 1livil court shall have jurisdic·
tion to question the legality of any action taken
by, or under the authority of, the electoral regis·
tration officer. The terms of the section are olear
and the action of the electoral registration officer
in 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 r. 24 of the Rules, or by reserting to
any other appropriate remedy. But it was conten·
ded before the High Court that the action of the
electoral registration officer was a nullity inasmuch
as he made the order without giving notice as
required by the Rules. We find it difficult to say
that the action of the electoral registration officer
is a nullity. He has admittedly jurisdiction to
entertain the application for inclusion of the appellant's name in the electoral roll and take suoh
action as he deems fit. The non-compliance with
the prooedure prescribed does not affect his jurisqiotion~ though it ma;y render hjs action illegal.
I
...
t
~ .. (
'
,J
'
.; .
3 s.qR'd .. :sUPR~lVIE.OOU.R.TREPORTS
'4&7
Such non~coμipliance · cannot make the officer's aot
non est, though his order may be liable to be
set aside in appeal or by resorting to any other
appropriate remedy._
.f...
' The Act proceeds on the basis that the voters'
Hst is final for the purpose of election. Undet
s. 10 of the Act, ''every person whose name is injthe
list of voters of any Panchayat constituencJ- shall,
unless disqualified under this Act or under any
other any other law for the time being in force~
... :'"'f"'
he qualified to be elected ~s· a mamber of the
Panchaya_t','. The disqualifications .are enumerated
in s. 11. If he was not disqualified-in ~h.e. present
cias~, t~«? ~i.n~i~~, i.~ that there was no such disqualiffoation-the appellant was certainly qualified
to be elected as a member- of·the Panchayat. The
Aot confers a special jurisdiction on the Munsif
to set aside an election, anq he can do so only for
the reasons mentioned in s. 13 (3} of the Act. The
relevant provision is in s. 13 (3) (A) ( d) (i) which
relates to the improper acceptance of any nomination.
In view of s. 10 of the Act, it cannot be said that
the're is any improper acceptance of the nomination
of the appellant, for, his name being in the list of
voters, be is qualified to be elected as a member
of the Pancbayat. There is, therefore, no provision·. in the Act which enables the High Court to
set aside the election on the grohnd that though
B.M. Ramaswamy
'·
B.M. K11shnamu1th;
S"bba liao .. J •
J9&S
' BoM. R~1_1lasWam,
v;
B:M. Kris~~~murih,
488
' .
. -
, ..-:~ - . . .
.
...
SUPREME OOURT REPORTS (1003] ·
the name of a: candidate is iir the litlt; it had been'
ill'chided therein iliegally.
in this view we <lo not propose to express
our opinion on the question whether; if the election
of the appeliant was void; the Mimsiff could have
declared the first respondent to have been duly
elected in hili place;
For the aforesaid reassons; we cannot agree
.With the {)oti<ilusion arrived at either by the ieal'•
μed Muasiff or by the learned J tidges of the High
Court. In the reslilt; the appeal is allowed and
the election petition is dismissed
with costs
throiighout.
Appeal ailowed.
'