# HARIPRASAD MULSHANKER 1RIVEDI v. V. B. RAJU AND OTHERS

- **Citation:** [1974] 1 S.C.R. 548
- **Court:** Supreme Court of India
- **Decided:** 1973-08-28
- **Bench:** A. N. Ray, K. K. Mathew, M. H. Beg, s. N. Dwirnm A, Y. V. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hariprasad-mulshanker-1rivedi-v-v-b-raju-and-others-6003
- **Pages:** 11

## Headnote

B
Representation of the People Act, 1950, Sections 16, 19, 2i to 24, 30Rcpresematioa of rlicP-<:op/e Act, 1951, Section 2(l)(e), 3, 10()(1) (a), 100{1)
(d)(i), (iii), (iv)-Question whetner retuined candidate was ordinarily re~fdent
in t!ze constituency on 1'1'hose ele1.:toral rolls. he was borne not one of jurisdictforral
f-ac1-Sche111e of 1950 and 1951 Acts 1nanifests intention of Parliament to tXtlude
judicial review-Jurisdictional question one <>/'public policy as re,ff.ected· ir: the
statute.
The respondent No. 1, Raju, filed an election petition against the appe1iwit and
respondent No. 5 challenging the ,election to the Council of State~ from Gu.iarat,
on the ground that their names were illega1ly entered in the electoral rol!S', a8
they were not electors within the meaning of Sec. 2(1}{e) of the Representation
of People Act, 1951. It was contended that they were not ordinarily resident
in any of the parliamentary constituencies in Gujarat Sta.te as required by Sec. 19
of the 1950 Act.
The qμestion was treated as a preliminary question by the
Gujarat High Court. The High Court, relying on some decisions of the Supreme
Court, held that ordinary residence in a constitu~ncy was a jurisdictional fit9:t and
the Registration Officer cannot, by an erroneous decision, detern1ine the juri:]dic··
tional fact and clothe himself with jurisdiction and enter the names of the said
respondents in lhe electoral rolls. The preliminary question was answer~d by the
High Court in favour of respondent No. 1, Raju.
The appellant before the
Supreme. Court challenged the High Court's order on the ground that it \lo'~ not
competent for the High Court to go behind the decision of the Registration Offic;:e.r
and -decide· whether his decision decJari.ng the respandents as ordinarily '.·e-:;ldent
iu the respective parliamentary constituencks, was correct or not.
Contesting the appellant's claim, respondent No. 1; inter alia contendeJ.; that
if the decision of the Registration Officer regarding ordinary residence \\·as to be
final on the question of the entitlement of a citizen to be entered in the e1ectoral
rolls, there is no recourse to a Civil Court u /s 30 of the Act. Courts caanot
imply the ouster oCtbe jurisdiction of Courts trying an election petition because
if the officer decides the question wrongly, a citizen will have no remedy to protect
his statutory right to be a voter and to contest electioas.
Respondent No. l
further contended that a wrong decision by the officer would raise a question
of jurisdictional fact and' the High Court has jurisdiction to decide such a qur.sti.on.
Rejecting the contentions,
HELD : ( l) The intention of Parliament to oust the jurisdiction of 1he Court
trying an election petition to ftO into the question whether a person is ordin~:ily
resident in the constituency in the electoral roll of whicl;l his name is e=ntered is
manifest from the scheme of Representation of Peo;>le's Act, 1950 and .1951.
Art. 327 of the Consiitution gives full power to Parhament, subject to the provi·
sions of the Constitution, to make laws with respect to all matters relating to or
in connection with the elections ihcluding the preparation of electoral rolls. It
was, therefore, open to Parliament to prescribe the mode of the preparat!-~ ef
the electoral roll and say that it .. is not Hable to 1be challenged except m the
manner provided.
The Parliament was, therefore, competent, subject t(} the
provisions of the Constitution, to exclude the jurisdiction of the Civil Court or
the Tribunal trying an election petition to go into the question whether the na~
of any person has beeti entered therein ·illegally. The right to stand for .. eiec~on
is a statutory right and the statute can, therefore, regulate the manner in which
the right has to be enforced or the remedy for_ enforcing it: The 1950 Act provides a complete code so far as the preparation and maintenance of electoral
tolls are concerned. The Act enacts a complete machinery to enquire

## Text

548
HARIPRASAD MULSHANKER 1RIVEDI
v.
V. B. RAJU AND OTHERS
August 28, 1973
[A. N. RAY, c. J., K. K. MATHEW, M. H. BEG, s. N. Dwirnm
A
AND Y. V. CHANDRACHUD, JJ.]
B
Representation of the People Act, 1950, Sections 16, 19, 2i to 24, 30Rcpresematioa of rlicP-<:op/e Act, 1951, Section 2(l)(e), 3, 10()(1) (a), 100{1)
(d)(i), (iii), (iv)-Question whetner retuined candidate was ordinarily re~fdent
in t!ze constituency on 1'1'hose ele1.:toral rolls. he was borne not one of jurisdictforral
f-ac1-Sche111e of 1950 and 1951 Acts 1nanifests intention of Parliament to tXtlude
judicial review-Jurisdictional question one <>/'public policy as re,ff.ected· ir: the
statute.
The respondent No. 1, Raju, filed an election petition against the appe1iwit and
respondent No. 5 challenging the ,election to the Council of State~ from Gu.iarat,
on the ground that their names were illega1ly entered in the electoral rol!S', a8
they were not electors within the meaning of Sec. 2(1}{e) of the Representation
of People Act, 1951. It was contended that they were not ordinarily resident
in any of the parliamentary constituencies in Gujarat Sta.te as required by Sec. 19
of the 1950 Act.
The qμestion was treated as a preliminary question by the
Gujarat High Court. The High Court, relying on some decisions of the Supreme
Court, held that ordinary residence in a constitu~ncy was a jurisdictional fit9:t and
the Registration Officer cannot, by an erroneous decision, detern1ine the juri:]dic··
tional fact and clothe himself with jurisdiction and enter the names of the said
respondents in lhe electoral rolls. The preliminary question was answer~d by the
High Court in favour of respondent No. 1, Raju.
The appellant before the
Supreme. Court challenged the High Court's order on the ground that it \lo'~ not
competent for the High Court to go behind the decision of the Registration Offic;:e.r
and -decide· whether his decision decJari.ng the respandents as ordinarily '.·e-:;ldent
iu the respective parliamentary constituencks, was correct or not.
Contesting the appellant's claim, respondent No. 1; inter alia contendeJ.; that
if the decision of the Registration Officer regarding ordinary residence \\·as to be
final on the question of the entitlement of a citizen to be entered in the e1ectoral
rolls, there is no recourse to a Civil Court u /s 30 of the Act. Courts caanot
imply the ouster oCtbe jurisdiction of Courts trying an election petition because
if the officer decides the question wrongly, a citizen will have no remedy to protect
his statutory right to be a voter and to contest electioas.
Respondent No. l
further contended that a wrong decision by the officer would raise a question
of jurisdictional fact and' the High Court has jurisdiction to decide such a qur.sti.on.
Rejecting the contentions,
HELD : ( l) The intention of Parliament to oust the jurisdiction of 1he Court
trying an election petition to ftO into the question whether a person is ordin~:ily
resident in the constituency in the electoral roll of whicl;l his name is e=ntered is
manifest from the scheme of Representation of Peo;>le's Act, 1950 and .1951.
Art. 327 of the Consiitution gives full power to Parhament, subject to the provi·
sions of the Constitution, to make laws with respect to all matters relating to or
in connection with the elections ihcluding the preparation of electoral rolls. It
was, therefore, open to Parliament to prescribe the mode of the preparat!-~ ef
the electoral roll and say that it .. is not Hable to 1be challenged except m the
manner provided.
The Parliament was, therefore, competent, subject t(} the
provisions of the Constitution, to exclude the jurisdiction of the Civil Court or
the Tribunal trying an election petition to go into the question whether the na~
of any person has beeti entered therein ·illegally. The right to stand for .. eiec~on
is a statutory right and the statute can, therefore, regulate the manner in which
the right has to be enforced or the remedy for_ enforcing it: The 1950 Act provides a complete code so far as the preparation and maintenance of electoral
tolls are concerned. The Act enacts a complete machinery to enquire into the
cla~ms and objections as regards re,.Wration as voters and for appeals froct.• the
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H. M. TRIVEDI v. v. B. RAJU (Mathew, J.)
049
de<:ision of tho Registering Officer. Sec. 30 of the Act makes it clear th;;! Civil
Courts have no jurisdiction to adjudicate the question. In these circumstances,
we do not think that it would be incongruous to infer and imply ouster l)f the
jurisdiction of tho Court trying an election petition. That inference is stren&fhened
by the fact that u/s IOO(J)(d) (iv) of the 1951. Act tl!e result llf .t~o election
must have been materially affected by non-compltance with the provmons of the
Constitution or of that Act or of Rules and orders made under that Act In order
that High Court may declare an election to be void. Non-comp\iance widl the
provisions of s. 19 of the Act cannot furnish a ground for declanng an election
void under that clause. The matter is concluded by the decision of this C<iurt
in P. R. IJe/agali v. B. D. Jatti (AJ.R. 1971 S.C. 1348),
(555C, 557F, BJ
B. V. Ramaswamy v. B. M. K;ishnam11rthi A.I.R. 1963 S.C. 458 refemd to.
Vaidya1wth l'a11iiar v. Sita Ram Mahtu, A.l.R. 1970 S.C. 314, Kabu! Sincfl
v. K1111da11 Singh, A.1.R. 1970 S.C. 340 and Wopansao v. N. L Od)'110 A.t.R,
1971 S.C. 2123, held applicable.
(2) Neither the decision of this Court in Vaidyanalh Panjiar whic:t took
the view that violation of s. Z3(3) of the 1950 Act in entering or deletin9 the
names of persons in the ele<:toral rolls after the last date for making nomination
relates to lack of
power, nor
the
decision in Wopansao '\Vhich alsQ
suggests that where there was a lack of power, the question can be gone into by
the court trying an election petition, can by analogy, be extended to an entry in
the electoral roll on the basIS of wrong adjudication of the question of ordinary
residence. The concept .of. jurisdiction for the purpose of judicial revie1"i' is one
of public policy rather than one of logic.
Viewed from the aspect of public
poltcy aS reflected in the provisions of the 1950 and 1951 Acts, a wrong decision
on a question of ordinai"y ieSidence for the purpose of entering a person's name
in the electoral roll should not be treated as a jurisdictional error v;hich can b~
reviewed either in a Civil Court or before an election tribunal. [5560!
. Ani.'itnil;it· '" Foreign Compensation Tribunal, ( 1967) 3 W. R _ L. :.s2~ Hli/lfam
Murray Estep v. U.S.A. [1945] 324, U.S. 114 at-page 142.
Dis~·t'li!htq jr1dgn1tnt o.f
Brandirs J. in Letus N. Crowell v. Charles Benson (i<J31] :!85. lJ.S. :!2 referred
to.
(3) The question whether a person whose name is entered in the 1.![ectoral
roll 1s qualified under the Constitution and whether he suffers from ar..y of the
disqualifications specified in Sec. 16 can always be qone into by the court tryin_;
an election petition. The eletoral roll is never conclusive or final in rl!·•;iect of
these matters. · (555H]
·
A.I.It 1971 S.C. page 1348 followed.
(4) Respondent No. 1 had challenged the election of respendents ?\(',,. 4 and
S. on the ground that they were not qualified or disqualifieO to be chosen to· fill
t~e seat as required by sec. lOO(l)(a) of the 1951 Act. There was no allegation that they were disqualified u/s 16 of the 1951 Act.
As the names of te5PQnden~ 4 ~nd 5 were. entered in the electoral roll and' they did not suffer any disqual1ficatrons, they were electors within .the definition of s. 2(1) (a) of fae 1951
Act.
They were, therefore, qualified to be chosen as candidates u·/s : of the
1951 Act.
f556E]
Appeal partly allowed.
CIVIL APl'ELLATE JURISDICTION : Civil Appeal No. 2650, i NCE)
of 1972 ..
Appeal by special leave from the judgment and order dated the
I.2th/13th October, 1972 of the Gujarat High Court in Election Petition No. 9 of 1972.
B. Sen and /. N. Shroff for the appellant.
S. K. Bisaria, for respondent No. I.
The 1 ud)μnent of the Court was delivered by
. ¥ATH~W, !.-In this appeal, by special leave. the questio;1 for
consideration 1s whether the findings arrived at by the High O>utt
550
SUPREME COURT REPORTS
( 1974) 1 S.C.R.
cl Gujarat in Election Petition No. 9 of 1972 on issues
No. 1
and 5; which were tried as preliminary issues, are correct.
An election fo elect four members of the Council of States from
the State of Gujarat was to be held on April 8, 1972.
The appellant aud respondents No. 1 to 5 filed
nominations.
On scrutiny, the returning officer held them to be valid. On April
8, 1972, the election was held at Gandhi Nagar and the appellant
aJJd respondents 2, 3 and 5 were declared elected.
On May 1, 1972, respondent no, 1 filed the election petition
to declare the elections of the appellant and respondents 2, 3 and
5 l'Oid.
'.f,he main ground urged . in the election petition for declaring the
election of respondents 4 and 5 in .the election petition (respondent
5 and the appellant respectively here) void-with which alone we
are concerned in this appeal-was that iliey were
not ordinarily
resident in the area covered by any parliamentary constituency in
the· State of Gujarat and that their names had been illegally entered
in the electro! roll of the respective constituency in Gujarat and as
they were not 'electors' within the meaning of s. 2(1)(e) of the
Representation of P_eople Act, 19 51, they were not eligible to become
candidates in the election. Respondent No . .1 also raised -several
·O.ther contentions in support of the declaration prayed for.
The court framed issues No. 1 to 5 and tried them preliminarily
and !)ntered findings thereon
in · favour
of
respondent
no. 1
Mr. Rajl,!.
In this appeal, the appellant challenges the correctness of the
findings on issues no. 1 and 5. These issues are :
'.' 1. Whether there is misjoinder of parties and causes of
action?
5. Whether this Court has jurisdiction to decide whether
the entries in the electoral roll regarding respondent
No. 4 and/ or respondent No. 5 are valid or not ?"
Mr. B. Sen, Counsel for the appellant, did not
address
any
".rgument as regards the correctness of the finding on issue No. 1.
We are. therefore, only concerned with the correctness of the
finding on issue No. 5. As already stated, the coiltention . on _ the
basis of which this issue was raised was that f!)Spondents No. 4 and
5 in the election petition were not ordinarily resident in any of
the parliamentary constitutencies in the State of Gujarat and, as
they had not fuJfiJled the condition for being entered in the electoral
roll of any parliamentary constituency in Gujarat, they were not elec·
tors within the meaning of s. 2(1 )(e) of the Representation of the
Pe0ple Act, 1951, and were ineligible to stand as candidates in the
election.
The High Court on a review of the decisions of this Court found
that the Court has jurisdiction to go into the question whether respondents No. 4 and 5 in the election petition were ordinarily resident in
any of the parliamentary constituencies in the State of Gujarat as that
was a condition precedent to the registering officer getting jurisdiction
ro. ,enter their names in the electoral roll. The reasoning of the Court
W3$ 'that ordinary residence in a constituency was a jurisdictional fact
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H. M. TRIVEDI V. V. B. RAJU (Mathew,!.)
551
2nd the registering officer cannot, by an erroneous decision, determine
the jurisdictional fact wrongly and clothe himself with jurisdiction and
enter the names of respondenis 4 and 5 in the election petition in the.
electoral roll in violation of the provisions of s. 19 of the Representa-
;ion of the People Act, 1950. It is, therefore, necessary to examine the
decisions of this Court to see whether the finding of the High Court is
justified by those decisions.
Before doing so, we think it proper to refer to the provisions of
1he Constitution and the Representation of the People Act, 1950
:md 1951 (hereinafter called the '1950 Act' and '1951 Act' respecrdvelY) which have a beanng on the subject.
Article 326 of the Constitution provides that the electfons to the
House of the People and to the Legislative Assembly of every State
shall be on the basis ol adult suffrage; that is to say, every person
·,,·ho is .a citizen of India and who is not less than twenty-one years
,,f age on such .date as may be fixed in that behalf by or under any
"aw made by the appropriate legislature and is not otherwise disq_ualified under the Constitution or any law made by the appropriate
"egislature on the ground of non-residence, unsoundness of
mind,
.:rime or corrupt or illegal practice, shall be entitled to be regis1ered as a voter at any such election. Article 327 states that subject
:o the provisions of the Constitution, Parliament may by law make
provision with respect to all matters relating to, or in connection with.
dections to either House of Parliament or to the House or either
House of the Legislature of a State including the preparation of
electoral rolls, the delimitation of constituencies and all other matters
tcecessary for securing the due constitution of such House or Houses.
Scctio;; 3 of the 1951 Act provides for qualification for memberohip of the Council of States : "A person shall not be qualified to be
chosen as a representative of any State or Union' Territorty in the
Council of States unless he is an elector for a Parliamentary constituency
'n that State or territory". Section 2(1) (e) of that Act defines an
·elector' :
"2(1) (e)-'elector' in relation to a constituency means
a person whose name is entered in the electoral roll of that
constituency for the time being in force and who is not subject to any of the disqualifications mentioned in s.16 of the
Representation of the People Act, 1950' .
. Sect~on 16 of the 1950 Act lays down the disqualifications for
1:~g1stratlon in an electoral roll and it provides that a person shall be
n!squalified .for registration in an electoral roll if he is not a citizen
c:t I~d1a ~r 1s of uns?und ll!ind ~nd sl'.lnds so declared by a competent
c~~1t. or is for the time bemg disqualified from voting under the prc-
<tStons _of any law r~lating to corrupt practices and other offences in
~nnect10n with elections. Sub-section (2) of s.16 provides that the
name of an:,: person who becomes so disqualified after ·registration
shal! forthwith be struck off the electoral roll in which it is included.
~ect1on _19 of the 1950 Act .Jays down the conditions of registration.
Jt provides :
"Subject to the foregoing provisions of this Part every
person who-
'
552
SOPl!.EMI!' Ci>ultT UPOllTS
[ 1974 J 1 s.c.R.
(a) is not less thali twenty-one years of age on the qualify'mg
·
date, and
·
(b) is ordinarily resident in .a C011Btitumcy, shall be entitled
to. be registered in the electinl roll for thai constitutney".
Section 30 of the t 950 Act bars the jurisdiction of the Civil Court to
~ntertain or adjudicate .upon any question whether any pers~n is or is
not entitled to be registered in an electoral roll for a constituency; .or
to question the legality of any action ~en by or ur:ider t_he authority
-0f an electoral registration officer, or. of any decision given by ;my
authority appointed under the Act for the revision of any such roll.
Sectio~ lOO(l}(a) of the 1951 Act provides that the eloction of
a returned candidate can be declared void by the High Court on the
ground that on the date of his election, the returned candidate was
not qualified to be chosen to fill the seat in question either in the light
of the provisions of the Constitution or in the light of the provisions
.of the Act.
Under s.lOO(l)(d)(i) and (iv) of the 1951 Act, the election of
.a returned candidate can be declared to be void by the High Court on
the ground that the result of the election, in so far as it concern; the
returned candidate has been materially affected (i) by the improper
acceptance ol any .nomination or (ii) by any non-<:ompliauce with the
provisions of the Constitution or of the Act or any rules or orders lllQde
under .the 1951 Act.
In B. M. Ramaswamy v. B. M. Krishnamurthy( 1) this Court v.as
.concerned with the provisions of the Mysore Village Panchayat and
Local Boards Act, Act 10 of 1959. Under the provisions of that Act,
the relevant part of the electoral roll of the Mysore Legislative
Assembly was deemed to be the list of voters for the panchayat constituency and the. se<:retary of the panchayat had to maintaiff a duly
authenticated separate list of voters -0f the said constituency. It was
because of this that this Court w~ required in that case to consider the
question of the applicability of the provisions of the 1950 Act. Snbba
Rao, J. in delivering the judgment of the Conn said that no civil court
bas jurisdiction to question the legality of any decisk>n taken by or
under the authority of the electoral registration officer as the terms of
s. 30 of the 1950 Act were clear that the action of the registration
officer in including the name of the appellant there in the electoral
roll, th-Ougb illeg_al, -cannot be questioned in a civil court and that it
could be rectified only in· the manner prescribed by law or by resorting
to any other proper remedy. This Court in effect held that the Court
trying an election petition has no jurisdiction to go behind the electoral
roll and find out wlietlter the name of any person entered therein was
illegally entered.
Tn Baidyanath Panjiar v. Sita Ram Mahto,( 2 ) the question was
whether in view of the provisions of s.23(3) of the 1950 Act, the
mme of any person can be entered in the electoral rQll subsequent to
the last date for making nominations and whether that question can
be gone into by the court when trying an election petition.
Section
23 [ 3) of the 1950 Act provides that no amendment, transposition or
deletion of any entry shall be made under s.22 and that no direction
for the inclusion of a name in the electoral rcll of a constitnency ~hall
(I) A.I.R 1963. S. C. 458.
(2) A. T. R. 1970 S. C. 3Ji..
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be given after the la.st date for ~aking nominati~ns for an. el~tion. iu
that constituency or in the. parliamentary constituency V'.llhin which
that constituency is compnsed and before the compleclion of that
election. The submission before this Court was that 35 names. were
entered in \ltolation of the provisions of s.23(3) and that was w1thQut
power and therefore the votes cast by these persons were invalid.
ffqJ!e, J. in dclive~ the judgment of the Court said that there was
no power in the registering officer to include an}'. name or delete any
name in violation of s.23(3), as the sub-section gives a maudate to ~e
electoral registration officer not to amend, transpose, delete :uiy entry m
the cleetoral roll of the constituency after the last date for making
nominatioc for election in that constituency and before the completion
of that election. Re held that if any name is entered or deleted it was
a case where there was a lack of power and not a case where there
was an irregular exercise of it and, therefore, the court trying the election petition could go into the question whether the.re was violation oli
s.23(3} <•r not.
In Kabul Singh v. Kundan Singh, (1) the question before this O:iurt
wa, whether the vote of a person whose name was entered in the electotal roll of the constituency after the last date for making the nomination was valid. In view of the earlier decision in Baidyanath v.
Sita Ram(2) this OJurt held that the registering officer bas no power
to enter his name in the electoral roll in violation of the mandatory provision of s. 23(3) and as it was a case of lack of power, the court
trying the election petition had jurisdiction to go into the question.
The learned Judge; in the course of the judgment, was careful to add
that the right to vote being purely a statutory right, the validity of any
vote has to be examined on the basis of the provisions of the relevant
Acts and that in-view of s.30 of the 1950 Act, Civil O:iurts have no
jurisdiction to entertain or adjudicate upon any question whether any
person is or is not entitled to register himself in the electoral roll ill"
a constituency or to question the illegality of the action taken by or
U!Jder the authority of the ·electoral registration of!icer or any decision
given by any authority appointed under that Act for the revision of
any such roll. He also said that sections 14 to 24 of the 1950 Act are
integrated prqvisions which form a complete Code by themselves in
the matter of preparation and maintenance of electoral rolls and that
entries found in the rolls are final and that they are not open to challenge either "before a CiviL Court or before a tribunal which consider~
the validity of any election" .
. ~P.R. Belaga/i v: J!. D. Jotu('), tlte.qnestion was about the
validity of the election of B. D. J atti to the legislature of the State iu
question from J amkhandi constit~ncy and one of the contentions was
that as he was not an ordinary res1dent in Jamkhandi constituency, he
was not an elector in that constituenoy and, therefore, the election was
yoid. Grover, J. delivering the judgment of this Court•observed that
m order to stand for election to the legislative assembly of a State, a
person must be an elector in any assembly constituency in that State,
and he must not be. subiect to any of the disqualifications mentioned ins. 16 of the 1950 Act or the disqualifications given in Chapter
III of the Act. He also observed that the condition of being ordinarily
(I) A.T.R. 1970 S.C. 340.
(2) A.I.R. 1970 S.C. 314.
(3) A.J.R. 1971 S.C. 1348 •.
554
SUPREME COURT REPORTS
[ 1974] 1 s.c.R.
Tesident in a constituency for the purpose of registration has nothing
to do with the disqualifications for registration which are prescribed by
s. 16 of the 1950 Act and which alone are relevant to the definition o1'
the word 'elector' occurring in s. 2 (1 )( e) of !he Act. He fu!(her sai<!
that the entire scheme of the 1950 Act is that entries·made iniiii electoral roll of a constituency can be challenged only in accordance witk
the machinery provided by it and not in any other forum unless some
question of violation of the provisions of the Constitution is involved.
The Court, therefore, held that the question whether Jatti was ordinarily
resident in Jamkhandi constituency during the material period and wa'
entitled to be registered in the electoral roll of that constituency could
not be the subject of an enquiry except in accordance with the pro·
visions of the 1950 Act and that only on the non-compliance with the
provisions of the Constitution or of the 1951 Act or of any rules or
orders made under that Act coald the High Court declare the election
of the returned candidate to be void under clause (l)(d)(iv) of s.
100 of the 1951 Act. The attention of the Court was not drawn to tee
decision in Baidyanath v. Sita Ram(!), where it was held that non·
rompliance with the provisions of s. 23 (3) of the 1950 Act would
result in improper reception, refusal, . rejection of vote which is void
and would, therefore, be ground for avoiding the election under s.
!OO(l){d)(iii) of the 1951 Act.
In Wopan.sao v. N. L. Odyuo and other.s(2 ) this Court after refer·
ring to the decision in Baidyanath v. Sita Ram(') held that lack of
power of the electoral registration officer to register or not to register
persons as voters resulting from violation of the mandatory provisions
of the relevant statutes might lead to improper reception, refusal or
rejection of a vote and would, therefore,. be a ground for avoiding the
election under s. 100(1) (d) (iii) of the 1951 Acl
_Mr. Raju, respondent No. 1 submitted that the right of a citizen
who fulfils the requirement of law as to age and who is not subject to
any disqualifications as provided by law passed by Parliament to be
registered as a voter, is a constitutional right granted by article 326 and
the remedy to enforce the right in a civil court cannot be taken away
by Parliament by law and therefore s. 30 of the 1950 Act is ultra vires
the Constitution. He also said that if the decision of the rej!istering
.officer regarding ordinary residence in a Constituency were to be final
on the question of the entitlement of a citizen to be entered ·in the
electoral ~pll and if he is to have no recourse to a civil court in case
the officer decides the question wrongl1v. the rule of law which is a
fundamental postulate of our democratic polity would be seriouslv im·
paired and. therefore. imo1ied ouster of the iurisdiction of the Court
trying an election: petition to go into the question cannot be inferred.
We are not concerned in this with the constitutional validity of
s. 30 of the 1950 Act. for the reason that no citizen has sought to
enforce his constitutional rie:ht of being rPei.;:tere<l as a voter in a court
and has been denied it. It is a wise tradition with court not to adindicate a constitutional ouestion unless it is absolutely necessary to ' the
a;snnsql of the case in hand.
(!) A.I.R. 1970 S.C. 314.
(2) A.I.R. 1971 S.C. 21,23.
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H. M. 1lll.VEDI v. v. B. RAJU (Mathew, J.)
555
"Supremacy of law demands that there shall be an opportunity ti}
have some court. to decide whether an erroneous rule of law ·was
applied aud whether the proceedings in which facts were ;idjudicated
were conducted regularly''. This remark was made in St. Joseph Stock
Yards Co. v. United States('), by Justice Brandeis. in his dissenting
opinion. In that case a public utility was challenging a rate order as
confiscatory. "It is entirely clear that the remark is not the law with
respect to much administrative action. The remark may be the law
with respect to some adminjstrative action, but if so, that action is no~
clearly identifiable."(2 ) But the question still remains whether the
Brandeis remark has validitv for some types of administrative action,
and if so, what types. On this question the opinions are singularly unhelpful. One may surmise that the Brandeis remark has validity in
the context in which it was uttered-a public utility rate case in which
confiscation was claimed.(') Article 327 gives full power to Parliament
subject to the provisions of the Constitution to make laws with respect
to all matters relating to or in connection with elections including the
preparation of electoral rolls. It was, therefore, open to Parliament to
prescribe the mode of the preparation of the electoral roll and say that
it is not liable to be challenged except in the manner provided. Pruiiament was,
therefore,· competent,
subject to
the
provisions
of the Constitution, to exclude the jurisdiction of the civil court
or the tribunal trying an election petition to go into the question whethet·
the name of any person has been entered therein illegally. The right
to stand for election is a statutory right and the statute can therefore
regulate the manner in which the right has to be enforced or the
remedy for enforcing it. We think that the 1950 Act provides a cooi·
plete code so far as the preparation and maintenance of ele<:tQCal rolls
are concerned. The Act enacts a complete mahim;ty to enquire into
claims and obiections as regards registration as voter and for appeals
from the decision of the registering officer (see sections 21 to 24 of the
1950 Act both inclusive). Elaborate rules have also been made for
inquiry into claims to be registered as voters and for considering and
disposing of obiections thereto (see rules 12 to 24 of the Registration
of Electoral Rules). The definition of the word 'elector' in s. 2 (1 )( e)
of the 1951 Act would indicate that a nerson whose name is actually
entered in the electoral roll for the time beinii and who is not subiect te
any of the disqualifications in s. 16 would be an elector. Any person
who is a citizen of India and who ha• attained th~ a!(e as prescribed by
law, subicct to the minimum as orovided in artiC!e 326, is entitled to
be re~stered as a voter in the roll of electors .. This is the positive way
of exoressing eliglbiJity for re2istration as a voter. He should not also
be subiect to anv of the di•oualifications orescrihed bv Parliament by
law <>n the grouncl• menti,..necl in the artic1e. The Parliament has prescribed in s. 16 of the 1950 Act t:OO disqualifications.
The question whether a person whose name is entered in the elec·
toral roll is qualified 1inder the Constitution aiid whether he suffers
(I) 298 u. s. 38.
(') See Kenn~th t)11n D::tvi", "'A.dmini~trative Ltw TreatisP". Vol 4, p. 98.
(3' ~e Kenneth C~ln Davis, uAdministr21tiVe L,,w Trcali~.r. Vcl. 4, p, 102.
556
SUP.REMS COURT .REPORTS
[ 1~74] 1 s.c.a.
from any of the disqualifications specified in s. 16 can always be gone
intQ by the Court trying an election petition. The electoral roll is never
conclusive or final in respect of these matters (see the decision in
P. R. Belagali v. B. D. Jatti (supra). The argument that the question
whether a person is ordinarily resident in a constituency for the purpose of registering him as a voter is a jurisdictional fact and therefore
the lj:gistering officer cannot by a wrong decision give himself jurisdiction to enter his name in the electoral roll, revives all the casuistic·
difficulties spawned by the doctrine of jurisdictional fact and the
practical difficulty of formulating' a test to distinguish jurisdictional fact
from other facts.
See in this connection the concurring judgment of
Justice Frankfurter in William Murray Estep v. U.S.A.(') and the dis·
sentiog judgment of Brandeis, J. in Letus N. .Crowell v. Charles
Benson("). The basis for identifying jurisdictional facts has never been
clarified. And, reflection on many of the reported decisions dealing with
the subject will only serve to induce a feeling of desperation. We infer
an intention to withhold judicial review in the situation with which we
are concerned as we think that the Parliament was acting upon the con·
victioo that it was dealing with matters which were fully lodged in the
exlusive jurisdiction of the registering officers and the appellate
authorities.
As already stated, the prayer in the election petition was to declare
the electi01i of the respondents 4 and 5 void under sub-section 100(1)
(a) for the reason that these respondents were not qualified, or, disB
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. qualified to be chosen to fill the seat under the Constitution or the 1951
Act. 'Ihern was no case for respondent No. 1 that these respondents
suffered from any of the disqualifications mentioned ins. 16. Nor was
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there any ground taken in the election petition that they had not the
positive qualifications as required by the Constitution or the Acts.
The only question is whether the ground taken in the election petition that since these respondents were not ordinarily resident in any of
the Parliamentary constituencies of Gujarat, they had not fulfilled one
of the conditions necessary to be satisfied for registration in the electoral
F
roll, can be gone into by the High Court in trying an eleetion petition.
We think that neither the decision of this Court in Baidyanath
Panjiar v. Sita Ram Mahto (supra) which took the view that violation
of s. 23 (3) of the 1950 Act in entering or deleting the names of persons
in the electoral rolls after the last date for makinJ?; nomination relates
to lack· of power nor the decision in Wopansao v. N. L. Odyuo (supra)
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and others· which aloo suggests that where there was lack of power, the
question can be gone into by the cour~ trying an election petition, cai:i,
by analogy, be e~te~ded to an entry m the eiectoral ~oil on the basis
of a wron~ adiud1cabon of the question of ord1narv ;es1dence.
Thou~h
the dividing line between lack
of
jurisdiction or power
and
erroneous exercise of it has become thin with the decision of the House
of Lords in The Anisminic Case( 8 ) we do not think that the distinc·
tion between the two has been completed wiped out. We are aware of
H
(2) 285 u. s. 22.
(I) 327 u. s. 114, 142.
.
(3) 1967 (3) W. L. R. 382.
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If· M. TRIVEDI y. v. 11. RMU (Mathew, J.)
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the difficulty in formulating ao exhaustive rule to tell when there is lack
of pi>wer and when there is an erroneous exercise of it. The difficulty
has arisen because the word "jurisdiction" is ao expression whjch is
uSed in a·variety of serises and takes·its colour from its context, (see per
Diplock, J. at p. 394 in the Anisminic Case). Whereas the 'pure' theory
of jurisdiction would reduce jurisdictional control to a vanishing point,
the adoption of a narrower meaning might result in a more useful legaf
conc;ept even though the formal struct\)re of law may lose something
of its logical S(Ymmetry. "At bottom the problem of defining the concept of jurisdiction for purpose of judicial review has been one of public
policy rather than one of logic".( 1) And viewed from the aspect of
public :{>QU~Y as reflected in the provisions of the 1950 and 1951 Acts,
we do not think that a wrong decision on· a question of ordinary resi·
dence for the purpose of entering a person's name in the electoral roll
should .be treated as a jurisdictional error which can be judicially re·
viewed either in a civil court or before an election tribunal.
And concerned as we are in this case only with the question
whether the High Court trying an election petition has jurisdiction t9
try and decide whether these respondents were ordinarily resident in
the respective parliamentary constitJ!Cncy in Gujarat, we shOul<l think
the matter is concluded' by the decision of this Court in Jatti's case
(supra).
The requirement of ordinary residence as a condition for registration in the electoral rolls in one created by Parliament by s. 19 of the
1950 Act, and .as we said, we s~ no reason why Parliament should
have no power to entrust to an authgtity other than a: court or a tribunal
trying an election petition the ex&l~ive power to decide the matter
finally. We have already referred to.the observation of this Court in
Kabul Singh's case (supra) that sections 14 to 24 of the 1950 Act are in·
tegrated provisions which form a complete code in the matter of preparation and maintenance of electoral rolls. Section 30 of tliat Act
makes it clear that civil courts have no power to adjudicate the ques·
tion. In these circumstances we do not think that it would be incongt11om to infer an implied ouster of the jurisdiction of the court trying
an election petition to go into the question. That inference is streng·
thened by the fact that under s. lOO(l)(d)(iv) of the 1951 Act the
result of the electi~n must have been materially affected by noncompliance with the provisions of the Constitution or of that Act or
of the rules, orders made under that Act in order that High Court may
declare an eltction to be void. Non-compliance with the provisions of
s. 19 of the 1950 Act cannot furnish a ground for declaring an election void under that clause.
We, therefore, return to the question whether these. respondents
were not qualified or were disqualified to be chosen to fill
the seat
under the Constitution or the 1950 Act or the 1951 Act. As we said,
there was no allegation that they were disqualified under s. 16 of the
1950 Act. Nor was there any ground taken that they were not qusllfied
in the sense. of their being not citizens or under the age ·as r~uired. As
their names were entered in the electoral roll and as they did not suffe;
i.l\ S. A. Smith. "Judicial Revie\V of Administrative Action", 2nd Edn., p. 98.
10-Jsrsup. c I/74
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558
SUPREME COURT REPORTS
[ 1974 J 1 S.C.R.
from any of the disqualifications mentioned in s. 16 of the 1950 Act,
they were electors within the definition of the term in s. 2 ( 1) ( e) of the
1951 Act. They were, therefore, qualified to be chosen as candidates
under s. 3 of the 1951 Act.
We think that the· Intention of the Parliament to oust the jurisdic·
tion of the court trying an election petition to go into the question
whether a person is ordinarily resident in the constituency in the electoral roll of which his name is entered is manifest from the scheme of
the 1950 and the 1951 Acts. It would defeat the object of the 1950
Act if the question whether a person was ordinarily resident in a
constituency were to be tried afresh in a court or tribunal, trying an
election petition.
We reverse the finding of the High Court on issue No. 5 and allow
the appeal to that extent and dismiss it in other respects. In the cir·
ctimstances we make no order as to costs,
S.B.W.
Appeal partly allowed.
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