# BAIDYANATH PANJIAR v. SITARAM MAHTO & ORS - **Citation:** [1970] 1 S.C.R. 839 - **Court:** Supreme Court of India - **Decided:** 1969-08-13 - **Case number:** election. [842 HJ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 25 of 1969 - **Bench:** K. S. Hegde, A. N. Ray - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baidyanath-panjiar-v-sitaram-mahto-ors-4708 - **Pages:** 6 ## Headnote Representation of the People Act, 1950-Elections-Section 22, sub-s. (3), s. 21(2)-Jnclusion of names in electoral roll after last date of filing nomination-Validity of votes cast-Section 22(3) if mandatory. Sub-section (3) of s. 23 provides that no direction for the inclusion of narne in the electoral roll of a constitue!l.cy shall be given after the last C date for making nomination for an election in that constituency and before the completi~n of that election. The appellant's election to the Bihar Legislative Council was challenged on the ground that some of the votes cast in his _favour were not valid because the names of the voters were included in the electoral roll after the last date for filing nomination. The High Court set aside the election and dc•clared the second respondent elec~d· since on counting the D validly cast votes the second respondent secured more votes than the appellant. E F On the question whether it was within the competence of the electoral registration officer to amend the electoral rolls after the last date for making the nomination was over, HELD : The legislative mandate like the one embodied in s. 2J <>ub-s. (3) must be considered as mandatory not merely because of th~ 1nnguage employed in that sub .. section but also in view of the purpose beh:nd the provision. The sub-section does not deal with any mode or procedure in the matter of registering the voters. It interdicts the concerned officers from interfering with the electoral rolls under the prescribed circumstances. It puts a stop to the power conferred on them. There'fore it is not a question of .irregulat exercise of power but a lack Of power. [842 ~~ . There is no conflict between sub-s. (2) of s. 23 and sub-s. (2) of s. 27 because a fair reading Of the various clauses in s. 27(2) will make it clear that it is the electoral roll of a constituency as it stood on the last date for making f Pc nominations for an election in that constituency that is to be considered final for the purpose of that election. [842 HJ ## Text A B '! 839 BAIDYANATH PANJIAR v. SITARAM MAHTO & ORS. August 13, 1969 [K. S. HEGDE AND A. N. RAY, JJ.J Representation of the People Act, 1950-Elections-Section 22, sub-s. (3), s. 21(2)-Jnclusion of names in electoral roll after last date of filing nomination-Validity of votes cast-Section 22(3) if mandatory. Sub-section (3) of s. 23 provides that no direction for the inclusion of narne in the electoral roll of a constitue!l.cy shall be given after the last C date for making nomination for an election in that constituency and before the completi~n of that election. The appellant's election to the Bihar Legislative Council was challenged on the ground that some of the votes cast in his _favour were not valid because the names of the voters were included in the electoral roll after the last date for filing nomination. The High Court set aside the election and dc•clared the second respondent elec~d· since on counting the D validly cast votes the second respondent secured more votes than the appellant. E F On the question whether it was within the competence of the electoral registration officer to amend the electoral rolls after the last date for making the nomination was over, HELD : The legislative mandate like the one embodied in s. 2J <>ub-s. (3) must be considered as mandatory not merely because of th~ 1nnguage employed in that sub .. section but also in view of the purpose beh:nd the provision. The sub-section does not deal with any mode or procedure in the matter of registering the voters. It interdicts the concerned officers from interfering with the electoral rolls under the prescribed circumstances. It puts a stop to the power conferred on them. There'fore it is not a question of .irregulat exercise of power but a lack Of power. [842 ~~ . There is no conflict between sub-s. (2) of s. 23 and sub-s. (2) of s. 27 because a fair reading Of the various clauses in s. 27(2) will make it clear that it is the electoral roll of a constituency as it stood on the last date for making f Pc nominations for an election in that constituency that is to be considered final for the purpose of that election. [842 HJ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 25 of 1969. Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated December 11, 1968 of the Patna High Court in Election Petition No. 4 of 1968. D. Goburdhun, for the appellant. :fl Birendra Prasad Sinha, S. K. Bagga, Hardev Singh and S. Bagga, for respondent No. 1. Hardev Singh, for respond-mts Nos. 2 and 3. 840 Sl:PREME COURT REPORTS (1970] 1 S.C.R. The Judgment ci the Court was delivered by Hegde, J. The principal question raised in this appeal under s. I I 6A of the Representation of People Act, 1 951 (to be hereinafter referred to as the Act) is as to the scope of s. 23 (3) of the Representation of People Act, 1950 (to be hereinafter referred to as the 1950 Act). A few subsidiary contentions have also been canvassed. They will be considered at the appropriate stage. The election petition from which this appeal arises relates to the Darbhanga Local Authorities Constituency of the Bihar Legislative Council. The calendar for the election for that constituency was as follows : I. La~t date for filing nomination papers 2-4-1968. 2. Date of scrutiny of nomination papers 3. Last date for withdrawal of candidatures 4. Date of Poll 4-4-1968. 6-4-1968. 28-4-1968. A c 5. Date of declaration of result 29-4-1968. D Originally live candidates submitted their nomination for the election in question. On scrutiny all of them were held to have been validly nominated. Two of them later withdrew their candidatures within the period prescribed leaving in the field Shri Baidyanath Panjiar, the appellant herein, Shri Raj Kumar Mahaseth, respondent No. 2 and Shri Gangadhar, respondent No. 3. There were six polling stations in :he comtituency. 134 vo:~s were polled out of which 33 votes were poll::d at Dalsingsarai oolling station. Counting of the votes showed that the appe;iant had secured 45, the second respondent 49 and the third respondent 40, · first preference vote~. As none of them obtained an absolute majority of the votes cast. the third respcndent was eliminated and his secc.nd preference votes were :aken into consideration. 14 of his sec.Jnd pref~1ence votes went IC' th~ appellant ~ncl 5 to the second respondent. l11erefore the appellant was declared elected. His election was later challenged by the 1st respondent herein. The High Court has set aside the election and declared the 2nd respondent elected on the ground that on counting the validly cast votes, the second respondent has secured more votes than the appellant. It held that some of the votes cast wer~ not valid votes. The controversy relating to the validity of some of the votes polled arose under the following circumstances. In the electoral roll as it' stood on the last date of filing nomination papers, the registered voters were only 123; 16 of the registered voters were of the members of Dalsingsarai Notified Area Committee. On April 13, 1968, as per a notification under s. 389(c) of the Bihar E G H A B c D E F G H BAIDYANATH v. SITARAM (Hegde, J.) 841 and Orissa Municipal Act, 1922, 40 members were nominated as members to the said Notified Area Committee in place of the old members. Most of them were newly appointed members. To be exact 35 of the· 40 members nominated were new members. Thereafter the electoral roll was amended on the 27th April, 1968, just a day prior. to the polling. As per the amended electoral roll, there were 39 electors in the Dalsingsarai polling station. Only four of them stood registered in the electoral roll as it stood on April 2, 1968. 12 of those who were electors under the original roll were removed from the roll. 33 out of the 39 electors included in the electoral roll relating to Dalsingsarai polling station exercised their franchise during the poll on April 28, 1968. The question for consideration is whether it was within the competence of the electoral registration officer to amend the electoral rolls after the last date for making the nomination was over. Provisions relating to the preparation of electoral rolls for the Legislative Councils' Constituencies are found in Part IV of the 1950 Act. Section 27 (2) of the Act prescribes the mode of preparation of the electoral rolls regarding the local authorities constituencies of a Legislative Council. Clause ( e) of that subsection stipulates tha~ provisions of ss. 15, 16, 18, 22 and 23 shall apply in relation to local authorities' constituencies as they apply in relation to assembly constituencies. Section 22 deals with correction of entries in the electoral rolls. Section 23 deals with the inclusion of names in the electoral rolls. Sub-s. (3) of that section provides that : "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 nomination for an electio!l in that constituency or in the parliamentary constituency '"ithin which that cogstituencv is comprised and before the completion of that election." The object behind sub-s. (3) of s. 23 of the 1950 Act would be clea~ if we examine the scheme of the Act and the principles underlying t~at scheme. Part III of the 1950 Act provides for the preparal!on of the electoral rolls for assembly constituencies. Section 15 provides that for every constituency, there shall be an e~e~toral roll which shall be prepared in accordance with the prov1s10ns of that Act under the superintendence, direction and control of the Election Commission. Section 16 enumerates what disqualificat!ons will dis.entitle a person from being enrolled as a vot~r. Section l S provides that no person shall be entitled to be registered m the electoral roll for any constituency more than or.ce .. 842 SUPREME COURT REPORTS [1970) I SCR. Section 18 enunciales the principle •·one pcrson--0ne vote". Section 22 provides for correc1ion of cmries in the electoral rolls. Section 23 (I) permits a person whose name is omi1tcd from the rolls to apply for inclusion. Sub-s. (2) of s. 23 authorises the electoral registralion officer to include the name of the applicant in the rolls if he is satisfied that he is enlilled to be registered. The object of the aforementioned provision is to see tha1 to the extcnl possible, all 1i.:rsons qualiJicd to be regislered as voters in any particular constituency should be duly regist~red and to remove from the rolls all those who are no1 qualified to be regislered. Subs. (3) of s. 23 is an important exc~ption to the rules noted earlier. It gives a mandate to the electoral rcgislration officers not to amend, transpose or delete any eniry in the electoral roll of a constituency afler the last date for making nominations for election in that constituency and before the complcli•Jn of that eleclion. If there was no such provision, there would have been room for considerable manipulations, particularly when there are only limited number of elec1ors in a constituency. But for tha1 pro\'ision, ii would have bcxn possible for 1hc concerned authorities to so manipulale the electoral rolls as 10 advance the prospects of :i particular candidate. This would be mere so if eilhcr all or a sec1ion of lhe electors are persons nominated 10 local authorities. The legislative mandate like the one embodied in s. 23 ( 3) must be considered as mandatory not merely because of the language employed in that sub-section but also in view of !he purpose behind the provision in question. Jn our npinion, cl. 23 (a) takes away the power of the electoral registralion oflicer o;· the chief electoral officer to correct the entries in the electoral rolls or to include new names in the electoral rolls of a conslitucncy after the last date for making the nominations for election in that constituency and before the complelion of that election. Section 23 (3) does not deal with any mode or procedure in the matter of registering the voters. It interdicts the concerned officers from interfering witlt the electoral rolls under the prescribed circumstances. It puts a stop to the power conferred on them. Therefore it is not a question of irregular exercise of power but a lack of power. It was next urged by Mr. Goburdhan, learned Counsel for the appellant that s. 23(3) of the 1950 Act is subject to s. 27(2) of the same Act and therefore in view of the direction issued bY the electoral registration officer to include the names of the electors in question, it was not open to the election petitioner to take any objection to the same. We see no substance in this contention. There is no conflict between sub-s. (2) of s. 23 and sub-s. (2) of s. 27. In fact, as noticed earlier, the provisions of s. 23 have .been incorporated into s. 27 (2) in view of s. 27 (2) ( e). A fair reading of the various clauses in s. 27(2) will make it clear that A B c D E l G H IP A B c D E F G ,. "I. BAIDYANATH v. SITARAM (Hegde, J.) 84~ the entries in an electoral roll of a constituency, as they stood on the last date for making the nominations for an election in that constituency should be considered as final for the purpose of that election. It was next urged that in view of s. 62 (l) of the Act no valid objection can be taken to the franchise exercised by the electors whose names were included in the electoral roll on April 27, 1968. Section 62 ( 1) says that "no person who is not, except as expressly provided by this Act, ever)" person ~ho is •. for the time ~eing entered in the electoral roll of any constituency shall be entitled to vote in that constituency." That provision no doubt stipulates that every person who is for the time being registered in the electoral roll of any constituency except as expressly provided by the Act shall be entitled· to vote in that constituency. The question is which is the electoral roll referred to in that section ? Is it the electoral roll that was in force on the last date for making nbminations for an election or is it the electoral roll as it stood on the date of the polling? For ·answering that quesiion we have to go back to s. 23(3) of the 1950 Act. In view of that provision the electoral roll referred to in s. 62 ( 1) of the Act must be understood to be the electoral roll that was in force on the last day for making the nominations for the .election. It was next urged that even if we hold lhat in including fresh electors in the electoral roll on April 27, 1968, the electoral registration officer contravened s. 23 (3) of the 1950 Act, the same cannot be made a ground for invalidating the election as the contravention in question does not come within the purview of subs. ( 1) of s. 100 of the Act. This contention again does not appear to be sound. Clause (d) (iii) of sub-s. (1) of s. 100 of the· Act provides that if the High Court is of the opinion that the result of the election in so far as it c6ncerns the returned candidate has been materially affected by the improper reception, refusal or rejection of any vote or (he reception of any vote which is void, it shall declare the election void. We have earlier come to the conclusion that the electoral registration officer had no power to include new names in the electoral roll on April 27, 1968. Therefore votes of the electors·. whose names were included in the roll on that date must be held; to be void votes. That conclusi