# KABUL SINGH v. KUNDAN SINGH & ORS

- **Citation:** [1970] 1 S.C.R. 845
- **Court:** Supreme Court of India
- **Decided:** 1969-08-13
- **Bench:** K. S. Hegde, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kabul-singh-v-kundan-singh-ors-4710
- **Pages:** 7

## Headnote

Representation of the People Acl, 1951-Elections-Section 23 sub-s.
(3 )-Inclusion of natne in electoral roll after last date for filing no1nination-Section 23(3)i/ mandatory-Electoral roll, finality of-Recriminatory petition, nature of.
In the elections to the Punjab Legislative Council from the local
a\":'.:1orities constituency· the
appellant who \\.:as declared elected secured
one vote more than the first respondent.
The first respondent challenged
the election of the appellant on t:1e ground that the vote of H should have
been held to be void aS his nan1e was included in the electoral roll after
the last date for the ftling of nomination in defiance of the proVisions of
s. 23(3) of the Act. To this the appellant filed a recriminatory petition
contending that .the votes, df two other persons B and S also were void as
their names were included in the electoral roll after the last date for filing nominations.
He. also alleged that the vote of another voter T was
void as he had become a government servant by the time the polling took
place and therefore was disqualified ,to be a member of any local board.
The High Court came to. the conclusion that the votes of H. B· and S were
void and counting the valiQity cast votes declared
the first
respondent
elected.
But when on scrutiny it was found· that of B and S one of them
had actua1Iy cast his first preference to the appellant he contended that
as the first respondent had not challenged the validity of those votes the
trial court could not have· excluded from
consideration the vote cast in
his favour by orie of those persons.
HELD : Section 23 (3) takes away the power of the electoral registration officer or the chief electoral officer to correct the entries in the electoral ro11s or to include ne~ names in the electoral rolls of a constituency
after the last date for making the nominations 1for election in that constltuency.
It prohibits inclusion of any name in the electoral roll after the
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pn1:scribed date whether the application for inclusion was made before or
after that date. [848 Gl
G
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Baidyanath Panjiar v. Sita Ram Malito. [1970] I S.C.R. 839, followed.
(ii) The election petition and the recriminatory petition are parts of
one enquiry.
As the validity df the three votes had come up for consideration and as it was held that those votes were void it necessarily followed that the votes had to be excluded in determining the result of the
election. The fact that the first respondent did not challenge the validity
of those votes was immaterial in the circumstances of the case. [848 D]
(iii) There is no provision in the Act which disqualified T from. voting and the question whether a particular vote was a valid vote or not
has to be decided solely on the basis of the provisions of the Act.
Jn
view of s. 30 df the 1950 Act the entries found in the electoral roll are
final and civil .courts 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. [850 El
84€
SUPREME COURT REPORTS
[1970] I S.CR.
B. M. Ramamamy v. B. M. Krishnamurthy,
[1963) 3 S.C.R. 479,
referred to.
C1v1L APPELLATE JURISDICTION : Civil Appeal No. 1359 of
1969.
Appeal under s. 116-A of the Representation of the People Act,
1951 from the judgment and order dated March 20, 1969 of the
8
Punjab and Haryana High Court in Election Petition No. 1 of
1968.
Hardev Singh, for the appellant.
R. K. Garg. S. C. Agarwala, D. P. Singh and Sumitra Chakravarti for respondent No. 1.

## Text

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845
KABUL SINGH
v.
KUNDAN SINGH & ORS.
August 13, 1969
[K. S. HEGDE AND A. N. RAY, JJ.]
Representation of the People Acl, 1951-Elections-Section 23 sub-s.
(3 )-Inclusion of natne in electoral roll after last date for filing no1nination-Section 23(3)i/ mandatory-Electoral roll, finality of-Recriminatory petition, nature of.
In the elections to the Punjab Legislative Council from the local
a\":'.:1orities constituency· the
appellant who \\.:as declared elected secured
one vote more than the first respondent.
The first respondent challenged
the election of the appellant on t:1e ground that the vote of H should have
been held to be void aS his nan1e was included in the electoral roll after
the last date for the ftling of nomination in defiance of the proVisions of
s. 23(3) of the Act. To this the appellant filed a recriminatory petition
contending that .the votes, df two other persons B and S also were void as
their names were included in the electoral roll after the last date for filing nominations.
He. also alleged that the vote of another voter T was
void as he had become a government servant by the time the polling took
place and therefore was disqualified ,to be a member of any local board.
The High Court came to. the conclusion that the votes of H. B· and S were
void and counting the valiQity cast votes declared
the first
respondent
elected.
But when on scrutiny it was found· that of B and S one of them
had actua1Iy cast his first preference to the appellant he contended that
as the first respondent had not challenged the validity of those votes the
trial court could not have· excluded from
consideration the vote cast in
his favour by orie of those persons.
HELD : Section 23 (3) takes away the power of the electoral registration officer or the chief electoral officer to correct the entries in the electoral ro11s or to include ne~ names in the electoral rolls of a constituency
after the last date for making the nominations 1for election in that constltuency.
It prohibits inclusion of any name in the electoral roll after the
F
pn1:scribed date whether the application for inclusion was made before or
after that date. [848 Gl
G
H
Baidyanath Panjiar v. Sita Ram Malito. [1970] I S.C.R. 839, followed.
(ii) The election petition and the recriminatory petition are parts of
one enquiry.
As the validity df the three votes had come up for consideration and as it was held that those votes were void it necessarily followed that the votes had to be excluded in determining the result of the
election. The fact that the first respondent did not challenge the validity
of those votes was immaterial in the circumstances of the case. [848 D]
(iii) There is no provision in the Act which disqualified T from. voting and the question whether a particular vote was a valid vote or not
has to be decided solely on the basis of the provisions of the Act.
Jn
view of s. 30 df the 1950 Act the entries found in the electoral roll are
final and civil .courts 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. [850 El
84€
SUPREME COURT REPORTS
[1970] I S.CR.
B. M. Ramamamy v. B. M. Krishnamurthy,
[1963) 3 S.C.R. 479,
referred to.
C1v1L APPELLATE JURISDICTION : Civil Appeal No. 1359 of
1969.
Appeal under s. 116-A of the Representation of the People Act,
1951 from the judgment and order dated March 20, 1969 of the
8
Punjab and Haryana High Court in Election Petition No. 1 of
1968.
Hardev Singh, for the appellant.
R. K. Garg. S. C. Agarwala, D. P. Singh and Sumitra Chakravarti for respondent No. 1.
The Judgment of the Court was delivered by
Hegde, J.
This appeal under s. l l 6A of the Representation
of People Act, 1951 (to be shortly referred to hereinafter as the
Act) is directed against the decision of the High Court of Punjab
and Haryana in Election Petition No. 1 of 1968 on its file.
In
that election petition, Kundan Singh, the I st respondent to this
appeal challenged the validity of the returning officer's declaration
that the appellant has been duly elected from the Hoshiarpur Local
Authorities Constituency to the Punjab Legislative Council in the
election held in April, 1968.
The High Court caine to the CQnclusion that some of the votes polled in that election were invalid
votes and if the valid votes alone are taken into consideration, as
it should have been, then the 1st respondent is entitled to be declared elected.
It accordingly set aside the declaration made in
· favour of the appellant and declared the 1st respondent as having
been duly elected.
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We may now briefly stale the material facts.
In March 1968,
¥
the Hoshiarpur Local Authorities Constituency was called upon to
elect one member to the Punjab Legislative Council.
The election
calendar was as follows :
(I) The last date for filing nomination papers
-12-3-1968.
(2) Date of scrutiny of the nomination papers13-3-1968.
(3) The last date for withdrawal of canditlatures16-3-1968.
(4) Date of polling-7-4-1968.
(5) Date of counting and declaration of result8-4-1968.
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KABUL SINGH v. KUNDAN SINGH (Hegde, I.)
~47
In that election, as many as five candidates contested.
They are
the appellant and the ~spondents herein.
On April 8, 1968, the
returning officer after counting the votes cast declared the appellant
to be the successful cooklidate as he had secijred one vote more
than the 1st respondent.
The 1st respondent challenged that declaration in the aforementioned election petition on various grounds
of which, at present, we are. only concerned with one viz. that the
vote of Hari Singh should have been held to be a void vote as his
name was included ib the electoral roll on April 5, 1968 i.e. just
two days before the date of polling.
In his turn the appellant
filed a recriminatory petition contendimg inter alia that the vote
of. Tarsem Singh was void as by the time· the polling took place,
he had become a government servant and the votes of two other
persons namely Harjinder Singh and Balwant Sinir_h were void as
their n'.ames were.included in the electoral roll after the last date for
filing nominations for pie election.
Other grounds taken in the
recriminatory petition are not relevant for our present purpose.
They have not been p~essed before us.
The election petitiob came up for trial before Mahajan, J. The
learned judge submitted the following question to a Full Bench
for decision :
"Whether alle~ation in para 4 (a) pertaining to the
vote of Hari Singh is correct and the vote was void and
was polled jn favour of respondent No. 1 im violation
of the Rules and has materially affected the result of
the election of respondent No. 1".
The Full Bench by majority came to the conclusion that the vote
of Hari Singh was voi~ as his name was included in the electoral
roll of the constituency: after the last date for making 111ominations
for the election in that bonstituencv. Thereafter the case was sent
back to Mahajan, J. for deciding- the issues left undecided. On
the basis of the opinioJi, expressed by the Full Bench, the learned
judge came to the conc1usiol!i that the votes of Hari Singh, Harjinder Singh and BaJwant Singh were void votes.
Consequently he
recounted the votes validly cast and came to the conclusion that
the 1st respondent had been duly elected.
He gave a declaration·
to that effect.
As seen earlier, the main cootention in this appeal relates to
the true effect of sub-s. (3) of s. 23 of the Representation of People
. Act, 1950 (to be herei\lafter referred to as "the 1950 Act") which
prohibits the deletion of ·any entry or inclusion of any name in the
electoral roll of. a constituency after the last date for making
nomimations for an election in that constituency and before the
comJ?!Ction of that election.
We have considered the scope of that
prov1sio11 jn Baidyanath Panjiar v. Sitaram Mahto and Ors.( 1 ) in
(1) [1970] l S.C.R. 839.
Ll5Sup.Cl/69-10
848
SUPREME COURT RF.PORTS
[ 1970] l S.CR.
which we have delivered judgment just now.
In view of that
decision, the view taken by the majority of the Full Bench must
be held to be correct.
Evidently under an erroneous impression that Harjinder Singh
and Balwant Singh had voted against him, the appellant had contended in his recriminatory petitio.n that their votes were invalid.
But on scrutiny it was found that one of them had given his first
preference to him.
Now it is contended on his behalf that as the
1st respondent had not challenged the validity of those votes, the
trial court could not have excluded from consideration the vote
cast in his favour by one of those persons.
This is an untenable
contention.
The votes of Harjinder Singh and Balwant Singh have
been rejected on the groumd that their names were included in the
electoral roll in defiance of the mandate given under s. 23 ( 3) of
the 1950 Act.
What applies to Hari Singh equally applies to
Harjinder Singh and Balwant Singh. The fact that the 1st respondent did not r.hallenge the validity of those votes is_ immaterial in
the circumstances of this case.
The election petition and
the
recriminatory petition were parts of one enquiry.
As the validity
of these three votes had come up for consideration and as it has
been held that those votes are void ·;oles, it necessarily follows that
those votes must be excluded from consideration in determining
the result of the election.
Another contention urged by Shri Hardev Singh is that only
the votes of those electors who had applied for the inclusion of
their names in the electoral roll after the period mentioned in
s. 23(3) of the 1950 Act can be held to be void; as the person
who cast his vote i,n favour of the appellant had applied for inclusion of his name some days before the last date for making nominations, the inclusion of his name in the roll after that date will
not make his vote void.
Jn support of his contention, he placed
reliance on the decision of the Patna High Court in Ramswaroop
Prasad Yadav v. Jagat Kishore Prasad Narain Singh(').
The
ratio of that decision has no applic"ation to the facts of the present
case.
That decision was rendered before sub-s. (3) of s. 23 of
the 1950 Act was incorporated into the 1951 Act. The mandate
of that provision is plain and unambiguous. It prohibits inclusion
of any name in the electoral roll after the prescribed date whether
the application for inclusion was made before or after that date.
The only other contention that remains to be considered is that
the High Court should have held that the vote of Tarsem Singh is
invalid.
It is not disputed that Tarsem Singh's name finds place
in the electoral roll of the constituency but the argument was that
as he had taken up government service subsequent to the inclusion
of his name in the electoral roll, he became disqualified to be a
(I) XVII f.L.R., 110.
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KABUL SlMqllli JI· KUNDAN SINGH: (Hegde, l.)
849
member of any local ~ard and therefore he was not entitled to
vote in the electiOJL
This contention cannot be uppeld. Sectiea
62 of the Act provides thus :
"62(1). No. person who is not, and except as expressly provided by this Act, every ,person who is, for
the time being entered in the electoral roll of any constituency shall be entitled-to vote in that constituency.
(2) No person shall vote at an election in any constituency if he is ~ubject to any o. f the disqualifications
referred to in section 16 of the Representation of the
People Act, 1950.
I
(3) Ne person shall vote at a general election in
more than one constituency of the same class, aind if a
person votes in more than one such constituency, his
votes in all such constituencies shall be void.
( 4) No person shall at any election vote in the
same constitue~~y more than once, notwithstanding that
his name may Ull-Ve been registered in the electoral roll
. for that constitnency more than once, and if he does so
vote, all his vote~ in that constituency shall be void.
( 5) No person .shall vote at any election if he is
confined in a'pri~on, whether under a sentence of imprisonment or ti'lt!ISJ)ortation or otherwise, or is in the lawful
custody of the police :
Provided thai nothing in this sub-section shall apply
to a person s'Ubjfcted to prt'ventive detention under any
law for the time
1being in force."
In view of those provisions read withs. 23(3) of the 1950 Act
every person who is 'for the time being entered in the electoral
roll 0f a constitueiru;y as it stood on the last date for making
nominations for an e).ection in that constituency is entitled to vote
unless it is shown th;i;t he..is prohibited by any of the provisions of
the Act from exe;~i$)ng his vote. The prohibitions contained in
sub-ss. 3, 4 and. 5 ofs. 62 of the Act do not apply to the case of
Tarsem Singh.
tltt,J;efore we have to see whether the prohibition
contained in sub-s. ~Z ). applied to his case.
That sub-section says
that no person 5hall vote at an election in any constituency if he
is subject to any of the disqualifications referred to in s. 16 of the
1950 Act.
.
This takes us to s' 16 of th.e 1950 Act.
It reads thus:
"16(1) A person shall be disqualified for registration in an electoral roli if he-
( a) is not a citizen of India; or
aso
SUPREME COURT REPORTS
[1970] I S.C.R.
(b) "; of unsound mind and stands so declared by
a competent court; or
( c) is for the time being disquaLified from
voting
under the provisions of any law relating to corrupt practices and other offences in connection
with elections.
(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off
the electoral roll in which it is included :
Provided that the ;n'amc of any person struck off the
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electoral roll of a constituency by reason of a disqua 1'fiC
cation under clause ( c) of sub-section ( 1) shall forthwith be re-instated in that roll if such disqualification is,
during the period such roll is in force, removed under
any law authorizing such remova' .. "
It is not the case of the appellant that Tarsem Singh had
incurred any of the disqualifications mentioned therein.
No other
provision of law in the Act or in any other law was brought to
our notice disqualifying him from exercising his vote.
The right
to vote being purely a statutory right, the validity of any vote has
. to be examined on the basis of the provisions ol the Act.
We cannot travel outside those provisions to find out whether a particular
vote was a valid vote or not. In view of s. 30 of the I 950 Act,
civil courts have no jurisdiction to entertain <,Jr adjudicate upon any
question whether any person is or is not entitled to register himself
in the electoral roll in a constituency or to question the illegality
of the actiqn taken by or under the authority of the electoral registration officer or any decision given by any authority appointed
under that Act for the revision of any such roll.
Part III of the
1950 Act deals with the preparation of rolls in a constituency. The
provisions contained therein prescribe the qualifications for being
registered as a voter (s. 19), disqualifications which disentitle a
person from being registered as a voter (s. 16), revision of the
rolls (s. 21), correction of entries in the electoral rolls (s. 22),
inclusion of the names in the electoral rolls (s. 23), appeals against
orders passed by the concerned authorities under ss. 22 and 23
(s. 24).
Sections 14 to 24 of the 1950 Act arc integrated provisions.
They form a complete code by themselves in the matter of
preparation and maintenance of electoral rolls.
It is clear from
those provisions that the entries found in the electoral roll arc final
and they are not open 10 challeirige either before a civil court or
before a tribunal which r,onsiders the validity of any election.
In
B. M. Ramaswamy v B. M. Krishnamurthy and Ors.(') this Court
(I) 11963) 3 S.C.R. 479.
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KABUL SINGH V. KUNDAN°SINGH (Hegde, J.)
851
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came to the conclusion that the finality of the electoral roll cannot
be challenged in a proceedilllg challenging the validity of the
election.
B
For the reasons mentioned above this appeal fails and the same
is dismissed with costs.
Y.P .
Appeal dismissed.