# RAMJI PRASAD SINGH v. RAM BILAS JHA & FOUR ORS

- **Citation:** [1977] 1 S.C.R. 741
- **Court:** Supreme Court of India
- **Decided:** 1976-09-24
- **Case number:** Civil Appeal No. 1147 of 1974
- **Bench:** Y. V. Chandrachud, P. K. Goswami, A. C. Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramji-prasad-singh-v-ram-bilas-jha-four-ors-6961
- **Pages:** 11

## Headnote

Represe11tation of the People Act 1950-Sec. 15, 21, 22,
23-Preparation
and revision of electoral roll-Amendment, transposition or deletion of entries
in electoral roll-Provision of Sec. 23 if mandatory-Representation of the
People A.:t 1951-Every person on electoral roll whether e11titled to vote even
if name not brought in accordance with law-Sec. lOO(l)b-Sec. 123 (l)(A)bBribery-Proof of-Quasi-criminal in nature-Interference with appreciation of
evidence by Hig/1 Court.
Bihar and Orissa Municipal Act 1922-S. 389.
In March, 1972, the Election Commission issued a notification calling upon
the Muzaffarpur Local Authorities Constituency to elect one member to the
Bihar Legislative Council.
One of the constituencies was1 the notified area committee of Dumm. The· last date fon filing1. nomination was 5-4-1972. The poll
was held on 30-4-1972 and the result was declared on 1st May, 1972. Respondent no. 1 an independent candidate secured the
highest number of votes,
namely 61, whereas his nearest rival respondent no. 5 secured 36 votes..
The
appellant Ramji Prasad Singh, a voter, filed an election petition challenging the
election of respondent no. 1 inter alil! on the following two grounds :
(1) 40 voters 'of the Dumra Notified Area Committee were illegally
prevented from exercising their franchise
which materia.lly affected the result of the election.
(2) Respondent no. 1 attempted to bribe two voters.
The Government of Bihar had nominated 40 persons to be th~ members of
the Dumra notified Area Committee by its notification dated 5-5-1971.
All of
them were duly: enrolled as voters in the electoral roll.
On 4-4-1972 the State
Government issued a notification cancelling the notification dated 5-5-1971 and
nominating 40 other persons mentioned therein as members of the Dumra Notified Area Committee. In a Writ Petition filed by some of the sitting members,
the High Court passed an interim order staying the operation of the notification
dated 5-5-1971.
The names of the 40 persons who were nominated earlier
were removed from the electoral roll and it was alleged that the names of 40
new members were included. The old members were not permitted to vote on
the ground that their names were not on the electoral roll and the new members
were not permitted to vote on the ground that the High Court had issued the
stay order.
SectiOI\ 389 of the Bihar & Orissa Municipal Act 7 of 1922 empowers the State Government to make appointments to Notified Area Committee.
Section 15'of the Representation of the People Act 1950 provides that for every
constituency there shall be an electoral roll which shall be prepared in accordance with the provisions of the Act. Section 21 deals with the preparation and
revision of the electoral roll.
Section 22 provides the procedure for correction
of entries in electoral rolls.
Section 23 (3) provides that no amendment, transposition, or deletion of any entry shall be made under
section 22 and no
direction for the inclusion of a nam~ in the electroal roll of a constituency shall
be given after the last date for making nominations for the election.
The High Court dismissed the election petition.
The appellant contended :
1. Section 62 (I) of the Representation of People Act, 19 51 provides that
no perrnn who is not and except as expressly provided by this Act every person
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who i>. for the time being entered in the electoral roll ol any constituency sha!I
be entitled to vote in that constituency and, therefore, since tbe names of the 41l
new perrnns were in the electoral roll and since they were illegally prevented
from voting which has materially affected the result of the election. the election
must be set aside.
2. The elected candidate attempted to bribe two voters and thereby rendered
his election void under sec. JOO (l)(b) read with sec. 123 p)(A)fbJ of the
B
Representation of the People. :.ct 1951.
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Dismissing the appeal,
HELD : I. It is implicit i

## Text

741
RAMJI PRASAD SINGH .
v.
RAM BILAS JHA & FOUR ORS.
September 24, 1976
[Y. V. CHANDRACHUD, P. K. GOSWAMI AND A. C. GUPTA, JJ.]
Represe11tation of the People Act 1950-Sec. 15, 21, 22,
23-Preparation
and revision of electoral roll-Amendment, transposition or deletion of entries
in electoral roll-Provision of Sec. 23 if mandatory-Representation of the
People A.:t 1951-Every person on electoral roll whether e11titled to vote even
if name not brought in accordance with law-Sec. lOO(l)b-Sec. 123 (l)(A)bBribery-Proof of-Quasi-criminal in nature-Interference with appreciation of
evidence by Hig/1 Court.
Bihar and Orissa Municipal Act 1922-S. 389.
In March, 1972, the Election Commission issued a notification calling upon
the Muzaffarpur Local Authorities Constituency to elect one member to the
Bihar Legislative Council.
One of the constituencies was1 the notified area committee of Dumm. The· last date fon filing1. nomination was 5-4-1972. The poll
was held on 30-4-1972 and the result was declared on 1st May, 1972. Respondent no. 1 an independent candidate secured the
highest number of votes,
namely 61, whereas his nearest rival respondent no. 5 secured 36 votes..
The
appellant Ramji Prasad Singh, a voter, filed an election petition challenging the
election of respondent no. 1 inter alil! on the following two grounds :
(1) 40 voters 'of the Dumra Notified Area Committee were illegally
prevented from exercising their franchise
which materia.lly affected the result of the election.
(2) Respondent no. 1 attempted to bribe two voters.
The Government of Bihar had nominated 40 persons to be th~ members of
the Dumra notified Area Committee by its notification dated 5-5-1971.
All of
them were duly: enrolled as voters in the electoral roll.
On 4-4-1972 the State
Government issued a notification cancelling the notification dated 5-5-1971 and
nominating 40 other persons mentioned therein as members of the Dumra Notified Area Committee. In a Writ Petition filed by some of the sitting members,
the High Court passed an interim order staying the operation of the notification
dated 5-5-1971.
The names of the 40 persons who were nominated earlier
were removed from the electoral roll and it was alleged that the names of 40
new members were included. The old members were not permitted to vote on
the ground that their names were not on the electoral roll and the new members
were not permitted to vote on the ground that the High Court had issued the
stay order.
SectiOI\ 389 of the Bihar & Orissa Municipal Act 7 of 1922 empowers the State Government to make appointments to Notified Area Committee.
Section 15'of the Representation of the People Act 1950 provides that for every
constituency there shall be an electoral roll which shall be prepared in accordance with the provisions of the Act. Section 21 deals with the preparation and
revision of the electoral roll.
Section 22 provides the procedure for correction
of entries in electoral rolls.
Section 23 (3) provides that no amendment, transposition, or deletion of any entry shall be made under
section 22 and no
direction for the inclusion of a nam~ in the electroal roll of a constituency shall
be given after the last date for making nominations for the election.
The High Court dismissed the election petition.
The appellant contended :
1. Section 62 (I) of the Representation of People Act, 19 51 provides that
no perrnn who is not and except as expressly provided by this Act every person
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who i>. for the time being entered in the electoral roll ol any constituency sha!I
be entitled to vote in that constituency and, therefore, since tbe names of the 41l
new perrnns were in the electoral roll and since they were illegally prevented
from voting which has materially affected the result of the election. the election
must be set aside.
2. The elected candidate attempted to bribe two voters and thereby rendered
his election void under sec. JOO (l)(b) read with sec. 123 p)(A)fbJ of the
B
Representation of the People. :.ct 1951.
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Dismissing the appeal,
HELD : I. It is implicit in section 62 ( 1) that ·the name of the person who
claims
to be entitled to vote in a constituency must have been en~ered in the
electoral roll of that particular constituency iri accordance with law.
If the
n;ime of a. person is entered in the electoral roll'in violation of section 23(3) he
can have no right to vote by reason
merely of the entitlement conferred
by
section 62(1). [749 A-CJ
Kabul Singh v. K1111da11 Sin~h & Ors. [1970] v. S.C.R. 845; B. M. Ramas11·amv v. B. M. Krish11a11111rthr and Ors. f]9631 3 S.C.R. 479 explained.
.
.
Baidw111ath, Panjiar v. Sitart1111 Matha & Ors. [1970] 1 SCR 839 followed.
2. The eiectoral roll was amended after 5th April, which was the last date
for filing the nomination. [745 G]
3. The provisions of section 23(3) are mandatory.
The Elecrion Commb-
,ion of India was within its right in withdrawing the polling booth at the Dumra
Committee office in order that the new members may not vote at the election. [750 B, CJ
•+. The charge of bribery is quasi-criminal in nature and in a series of cases
this Court has held that such a charge must" be proved not by a ni.cre
prepondcrence of probabilities but beyomj a reasonable doubt.
In the absence of
any evidence of unimpeachable nature and particularly in the absence of any
contemporaneous complaint in regard to the allegation of bribery it would be
unsafe to accept the bare word of the appellant and his witness on snch a serious
charge.
The High Court having considered the evidence on the question of
bribery fully and carefully, this Court did not find any reason to depart from
the well established practice that except for substantial reasons this Court docs
not embark on a detailed assessment of oral evidence. [751 B-C]
CIVIL APPELLATE JuRISDICTION: Civil Appeal No. 1147 of 1974
(From the Judgment and Order dated 9.5.1974 of the Patna
High Court in Election Petition No. 42/72).
D. Gohurdhan and L. R. Sinha, for the Appellant
D. V: Patel, U. P. Singh, R. P. Singh and S. N. Jim, for rcsponpondcnt No. 1.
The Judgment of the Court was delivered by
CHANDRACHUD, ].-This is an appeal under section 116A of the
Rcprc>cntaticn of the People Act, 1951 from the judgment of the
P:;tna High Ccurt dated May 9, 1974 in Election Pctifon No. 42 of
1972.
H
0!1 March 29. 1972 the Election Commission issued a notification
calling upon the Muzaffarpur Local Authorities Constituency to elect
one member to the Bihar Legislative Council.
That Constituency
consists of the Municipalities of Muzaffarpur, Sitamarhi, Hajipur and
RA!vl.JI PD. SINGH v. RAM BILAS .IHA (Chandrnchud, ].)
743
Lalganj and the Notified Area Committees of Mahnur and Dumra.
\Ve are concerned in this appeal with the Notified Area Committee of
Dumra only.
According to the programme notified by the Election
Commission, the last date for fiHng nominations was April 5, 1972.
The poll was held on April 30 and the result of the election was declared on May 1, 1972.
Respondent 1 Ram Bilas Jha, an independent canGlidatc, secured the highest number of votes, namely 61 whereas his nearest rival respondent 5, Mahanth Raghunath Das, a Congress (R) candidate, secured 36 votes..
Respondent 1 was accordingly declared elected.
The
~tipcllant Ramji Prasad Singh was a voter for the election
being a member or commissioner of the Sitamarhi Municipality.
On
June 14, 1972 he filed an election petition in the Patna High Court
challenging the election of respondent 1 on various grounds.
Before
us, appellant restricted his challenge to the following two grounds :-
(I) Forty voters of the Dumra Notified Area Committee were illegally prevented from exercising
their
franchise, which materially affected the result of the
election; and
(2) Respondent 1 attempted to bribe
two
voters, Sri
Narain Prasad and
Ram Swarath
Raut,
thereby
rendering his election void under section 100 ( l) (b)
read with section 123 ( 1) (A) (b) of
the
Act of
1951.
The High Court having rejected these contentions the election pctit~oner has filed this appeal.
· It is necessary to state certain important facts for a proper appreciation of the question involved in the first of the two points mentioned above.
By Notification No. 2708/LSG dated May 5, 1971
the Government of Bihar had nominated 40 persons to be members
or commissioners of the Dumra Notified Area Committee.
All
of
them were duly enrolled as voters in the electoral roll of the Muzaffarpur Local Authorities constituency.
On April 4, 1972 the State
Government issued a Notification, No. 2934, cancelling the notification dated May 5, 1971.
By another notification, No. 2935. of
even date, viz., April 4, 1972 the State Government nominated 40
other persons named therein as members of the Dumra Notified Area
Committee.
Immediately after the issuance of the two notifications of April 4.
1972 some of the sitting members of the Dumra N.A. Committee,
who ceased to be members by reason of these notification:s, filed writ
petition No .. 150 of 1972 in the Patna High Court challenging
the
validity of the notifications.
A rule was issued in that writ petition
on April 14, 1972 and by an interim order, the operation of notification No. 2934 by which the notification of May 5, 1971 was cancelled, was stayed till the disposal of the writ petition.
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After ~he High Court issue~ t~e stay order, a petition was moved
?efore Shn A. M. Bose, the D1stnct Magistrate of Muzaffarpur, askmg that the names of the 40 members which were removed from the
electoral. roll pursuant to the notification issued by the State Government should bo ·re-incorporated therein.
Shri Bose who was functioning ex-officio as the District Election Officer, Electoral Registration Officer and the Returning Officer for the. purposes of the particular election sent a Teleprinter message (Ex. 7) on April 21, 1972 to
the Chief Electoral Officer, Patna, stating that since the last date for
filing nominations was long since past, the names of the old members
which were already removed from the elec_toral roll could no~ be reincorporated therein but that it would be in contempt of tli.e High
Court if elections were to be held on the basis of the amended roll,
as the High Court had stayed the operation of the notification issued
by the Government on April 4, 1972 cancelling the notification
of
May 5, 1971.
"In this anomalous situation",. Shri Bose asked the
Chief Electoral Officer to seek the instructions of the Election Commission of India. By his Telex message (Ex.8), the Chief Electoral
Officer sought the directions of the Election Commission which opined
that since the old members could not vote as their names were not on
the electoral roll and since the new members also could not vote because of the stay order issued by the High Court, the polling station
at the Dumra Notified Area Committee office should be withdrawn
and cancelled.
Pursuant to this directive, there was no polling booth
where the members of the Dumra Committee could cast tbeir votes.
Consequently, neither the old 40 members whose names were removed
from the electoral roll nor the new 40 members whose names were
included therein could cast their votes in the election held on April
30. It is on. this background that the election petitioner raised the
point that the new 40 members were illegally prevented from exercising their franchise and that such prevention had materially affected
the result of the election as those members would have voted
for
respondent 5, the Congress (R) candidate.
It may, we think, be accepted that the 40 newly enrolled members, had they been permitted to cast their votes, would have mostly
voted for respondent 5.
Thirty-four out of the 40 were examined as
witnesses and they protested their loyalty to respondent 5.
Out of
these 34 witnesses, 27 are members of Congress (R) and though defections cannot be totally ruled out, there is no reason to discard
their evidence that they were pledged to support respondent 5 who
was their party candidate. It may be assumed that members of the
party would not have disobeyed the mandate issued by the Provincial and District Congress Committees through circular letters, Bxs.
3 and 3/a, that they must vote for the party candidate, respondent 5.
The remaining 7 out of the 34 may be taken at their word that they
would have voted for respondent 5 since they thought that he was
the most eligible candidate amongst the contestants.
There is also
evidence showing that the newly enrolled members had gone to the
polling station to cast their votes but had to return without exercising
their franchise as there was no booth where they could cast their
votes.
RAMJI PD. SINGH v. RAM BILAS JHA (Chandrachud, J.)
745
The question which then remains to be considered is whether the
newly enrolled members of the Dumra Committee were prevented
illegally from casting their votes in the poll ot 30th April.
The power
to make appointments to Notified Area Committee's is derived by the
State Government under section 389 of the Bihar and Orissa Municipal Act, 7 of 1922. That section provides by clause (c) that the
.State Government may by notification appoint a Committee or make
rules for the appointment or election of a Committee for carrying out
the purposes of the Municipal Act in the Notified Area.
The notifications of May 5, 1971 and April 4, 1972 nominating 40 persons as
members• or commissioners of the Dumra Notified Area Committee
were issued by the Government of Bihar in exercise of the power
conferred by section 389(c). The State Government did have the
power to issue the 2nd notification as much as the first and their jurisdiction in that behalf has not been questioned.
An interesting question however arises by reason of the provisions
.contained in the Representation of the People Act, 43 of 1950. Section 15 of that Act provides that for every constituency there shall
be an electoral roll which shall be prepared in accordance with the
provisions of the Act under the superintendence, direction and control of the Election Commission.
Section 16 prescribes disqualifi-
.cations for registration in an electoral roll.
Section 21 deals with the
preparation and revision of the electoral roll.
Section 22 prescribes
a procedure for correction of entries in electoral rolls and section
24 provides for an appeal from any order passed under section 22.
Section 23(3) which has an important bearing on the point raised
()n behalf of the election petitioner reads thus :-
"23. (3) 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 nominations for an election in that consti,tuency
or in the parliamentary constituency within which that constituency is comprised and before the completion of that election."
As mentioned above the State Government issued two notifications on April 4, 1972, one by which the earlier notification of May
5, 1971 was cancelled and the other making fresh appointments of
40 members to the Dumra Notified Area Committee.
As a result of
these notifications (Bxs. lOA and 10 respectively), it became necessary for the Electoral Registration Officer to delete from the electoral
roll the names of 40 persons who were appointed und-.r the notification of May 5, 1971 and to include in their place the names of the
40 new members who were appointed to the Committee under the
Notification (Ex. 10) of April 4, 1972. But these corrections or
amendments could not, by rea~on of section 23 (3), be made after
April 5, 1972 which was the last date for making nominations to the
election.
No direction also could have been given for the inclusion
of these names in the electoral roll, after the last date for making1
nominations.
The point, thus,
for consideration is
whether the
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amendm.ent to the electoral roll was made in the instant case by iricorporatmg the names of the 40 new members therein on or b..:fore
the 5th Apr;! or whether the roll was amended after the expiry of that
date.
lt the roll was amended after the 5th April, the inclusion of
the new names would be clearly in breach of the mandate contained
in section 23(3) of the Act of 1950 and therefore beyond the jurisdiction of the Electoral Registration Officer.
The best evidenc'c on.
this question would of course be of Shri Bose himself who beincr the
.
.
'
b
District Mag,stratc of Muzaffarpur, was functioning ex-officio as the
Electoral Registration Oflker.
Ex. I is the electoral roll for 1972 on the basis of which the bien-·
nial election to the Bihar Legislative Assembly from the Muzaffarpur
Local Authorities constituency was held in this case.
The names of
the 40 members of the Dumra Notified Area Committee who were
appointed under Notification No. 2935 (Ex. JO) dated Apr~l 4, 1972
arc included in that roll at Serial Nos. 31 to 70.
These names, according to the learned counsel of the election petitioner, were entered
in the roll soon after the Electoral Registration Officer received the
two notifications (Exs. lO and JOA) whcih was at about 8-15 a.m. on
the 5th April.
On the other hand, learned counsel for respondent 1
says that in the very nature of things the names could not have been
entered in the electoral roll before the expiry of the crucial date, 5th
April.
At best, according to him, the names might have been entered
in the rol! on !he 6th.
It seems to us impossible to accept the contention of the election
petitioner that the names cf the new members were entered in ihc
electoral roll immediately after Shri Bose, the Electoral Registration
Officer, received the notifications Exs. JO an cl 1 OA dated April 4.
It is true that Si1ri Bose received these notifications through a special
messenger on the 5th at about ·8-15 a.m. But he says in his evidence
that immediately after receiving the notifications, he endorsed them
to the Assistant District Electoral Officer and then to the Deputy
Collector in charge of the General Section for necessary action.
He
has further stated that he could not have taken any action for including the names of the new members in the electoral roll on the strength
o( the notifications because, in so far as he knew, an amendment in
the electoral roll could not be made unless a list of members for inclusic:1 in the electoral roll was received by him from the Cha;rman
of the local body concerned.
That unquestionably is the true legal
position because under section 27(2) (d) of the Representation of
the People Act, 1950 it is the duty of the Chief Executive Officer of
every local authority (by whatever designation he may be known) to
inform the Electoral Registration Officer immediately about
every
change in the membership of the local authority, in order to enable
the Electoral Registration Officer to maintain the electoral roll corrected up-to-date.
The section _furth.er provides that on. receipt of suer.
information the Electoral Registration Officer shall stnke off fro'11 the
electoral roll the names of persons who have ceased ta be and include
therein the names of persons who have become, members of
th<o
,
RAMJI PD. SINGH v. RAM BILAS JHA (Chandrachud, J.)
747
· particular local authority.
Shri Bose, therefore, could not have included the new names in the electoral roll merely on the strength of
the Government notifications which he received on the morning of
the 5th.
For doing so, he had to await an official communication
from the Chief Executive Officer of the Dumra Notified Area Committee.
At the relevant time Shri Durga Prasad, the Sub-Divisional Officer
of Sitamarhi, District Muzaffarpur, was functioning ex-officio as the
Chairman of the Dumra Notified Area Committee and was therefore
the "Chief executive officer" of that local authority, within the meaning of sa:tion 27(2) (d) of the Act of 1950. Just as Shri Bose had
received the two Government notifications on the 5th, so had Shri
Durga Prasad.
On receiving the notifications he convened an 'emergent meeting' of the newly nominated members· of the Dmnra Committee which, as shown by the proceedings Ex. E, was held in
the
Committee's office at 8 p.m. on the 5th.
Shri Durga. Prasad has
stated in his evidence that after the meeting was over he sent a letter
(No. 62) to Shri Bose stating that the old list of members should
be treated as cancelled and the names of members mentioned in the
new list should be included in the electoral roll.
Shri Bose has stated
in his evidence that he received that letter (Ex. A/3) at 11-30 p.m.
through a special messenger and in token thereof made an appropriate
endorsement on it.
That endorsement is Ex. J which shows that the
letter was received at 11-30 p.m~ on the 5th April, Shri Bose also
made another endorsement (Ex. K) on that letter saying that in the
new list of members sent along with the letter Ex. A/3, the addresses
of members at Serial Nos. 8, 16 and 29 to 37 were not noted.
Shri
Bose has testified to these endorsements in his own evidence.
Column No. 5 of the Electoral Roll requires the specification of
the authority on the basis of which the names of voters are incorporated in the Electoral Roll. In regard to the names of the 40 new
members with which we are concerned in this appeal, the authorisation for including their names in the roll is stated as letter No. 62
dated April 5, 1972 of the Chairman of the Dumra Notified
Area
Committee. That letter, as stated above, was received by the Electoral Registration Officer at 11-30 p.m. on the 5th.
The fact of the receipt of Shri Durga Prasad's letter by Shri Bose
at ll-30 p.m. on the 5th and the entry in column 5 of the Electoral
roll that the new names were incorporated therein on the authority
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of that letter make it impossible to accept the half-hearted claim of
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Shri Bose that he had passed orders for inclusion of the new names
on the 5th itself.
Time was running fast and only half an hour was
left for the last date to expire for making amendments in the electoral
roll.
The endorsement, Ex. K, made by Shri Bose on letter No. 62,
Ex. A/3, shows that he treated the list of members as incomplete in
necessary particulars since the addresses of certain members were
not mentioned in the list. Shri Bose did not make any endorsement
H
on the letter, which he wouid in the normal course of business do,
directing that the names of new members contained in the list ac-
"
companying the letter should be incorporated in the roll.
Jn fact
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the letter was "diarised" by Shri Bose's office on the 6th.
Even on the
~th, ~hen an endrosement was made on the letter regarding its diarisatJon m the relevant office fiie, the letter did not bear any direction of
the Electoral Registration Officer that the new names should be included in the electoral roll.
The fact of the matter seems to
be
that the notifications of the 4th April came too late for being acted
upon before the dead-line, which was the 5th.
The red tape moved
slowly, the due date expired and then every one awoke to tl1e necessity of curing the infirmity by hurrying with the implementation of the
notifications.
But it was top late and the law had already put its
seal on the electoral roll as it existed on the 5th April.
It "ould not
be touched thereafter, until the completion of the election ..
The entry at Serial No. 33 in the letter, Ex. M, on which the appellant relies to show that orders were issued on the 5th itself for inclusion of new names in the electoral roll is ambiguous and relates, in
all probability, to the superseded list of May 5, 1971. The Assistant
District Election Officer who is the author of the letter was not examined in the case and Shri Bose to whom the letter was addressed bas
admitted very fairly that he is "doubtful about serial No. 33" in Ex. M.
Coupled with these facts is the evidence of witnesses from
the
Government Printing Press showing that the notification, Ex. 10, by
which the appointment of new members was made was printed and
published on April 7, 1972. Evidently, there was inadequate response to the urgency of the processual matters governing the electoral
process.
We must, however, make it clear in fairness to Shri Durga Prasad
and Shri Bose, that neither of them is to be blamed for non-inclusion
of the names in the electoral roll within the appointed time.
They
acted with the promptitude possible in the circumstances and the mishap occurred m_ainly because of the last-minute decision of the Government to cancel the previous notification and to issue a new one in its
place. The new notification, Ex. 10, was lacking in essential particulars and in transposing some of the not-so-easily identifiable names of
new members to the electoral roll, whether it was done on the 6th,
7th or later, the Electoral Officers did the best of a bad bargain.
We see ho substance in the argument that since the new names
have found their way into the electoral roll, the entries are conclusive
of the right of those members to vote at the election and accordingly,
the Court has no power or jurisdiction to go behind the entries and
inquire into their validity. In support of this argument the appellant's counsel relies principally on section 62 ( 1) of the Representation of the People Act, 1951 which provides that "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." This sub-section may
be split up into two parts so as to make its meaning and intendment
clear. It provides, in the first place, that a person who is not entered
is an electon11 roll of a constituency shall not be entitled to vote in
RAMJI PD. SINGH v. RAM BILAS JHA (Chandrachud, J.)
149
;that constituency.
Secondly it provides that, except as expressly provided by the 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. It is implicit in these provisions that the name of the
person who claims to be entitled to vote in a constituency must have
been entered in the electoral roll of that particular constituency in accordance with law.
Section 23(3) of the
Representation of
the
People Act, 1950 provides that no amendment, transposition or deletion of any entry shall be made and no direction for the inclusion of
a ·name in the electoral roll of a constituency shall be given after the
last date for making nominations for an election in tl)at constituency
and before the completion of the election. If the name of a person is
entered in the electoral roll in violation of the mandate contained in
this section, he can have no right to vote by reason merely of the
entitlement conferred by section 62(1) of the Act of 1951.
Putting
it briefly, the words "for the time being entered in the electoral roll"
in section 62(1) of the Act of 1951 must be taken to mean "for the
time being entered in the electoral roll in accordance with law."
Learned counsel for the appellant invited our attention to a decision of this Court in Kabul Singh v. Kundan Singh & Ors.(1) which
says that in view of section 30 of the Act of 1950, entries found in
the electoral roll are final and that no civil court has jurisdiction to
entertain or adjudicate upon any question as to whetlier any person
is or is not entitled to be registered in an electoral roll for a constituency or to question the legality of any action taken by or under the
authority of an Electoral Registration Officer or of any decision given
by any authority appointed under the Act for the revision of any such
roll.
In B. M. Ramaswamy v. B. M. Krishnamurthy and Ors.(2)
also this Court had come to the conclusion that the finality of the
electoral roll cannot be challenged in a proceeding in which
the
validity of the election is questioned. These decisions cannot assist
the appellant for two reasons.
Firstly, the question which arises for
consideration before us is not whether any one or more of the 40
members whose names are included in Ex. 10 are entitled to be registered in the electoral roll.
The question is, assuming that they are so
entitled, were their named entered in the roll within the time limited
by law?
Secondly, the legality of the action taken by the Electoral
Registration Officer in- entering the new names in the roll after the
expiry of the last date for making nominations, was in issue before the
High Court in the Election Petition itself filed by the appellant, under
section 81 of the Act of 1951, Section 30(b) of the Act of 1950 cannot affect the jurisdiction of the High Court, while dealing with an
election petition, to set aside an election on the grounds mentioned
in section 100(1) of the Act of 1951, one of which is that the result
of the election was materially affected by the improper reception, refusal
or rejection of any vote.
There is a clear distinction between a challenge to the right of a voter to be registered in an electoral roll and
the jurisdiction of an authority appointed under the Act to enter a name
in the electoral roll.
That jurisdiction has perforce to be exercised
(I) [1970] I S.C.R. 845.
(2) [1963] 3 S.C.R. 479.
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750
SUPREME COURT REPORTS
(1977) 1 S.C.R.
~onsistently ~ith ~he provisions of the law governing the election and
m case there 1s failure to do so, the action of the officer would be open
to challe~ge on the ground of want of jurisdiction. If, as here, the electoral roll is amended after the time-limit set down in section 23(3) of
the .Act of .1950, the amendment would be without jurisdiction con-
~errmg no nght to vote on the persons whose names are thus included
m the roll.
As held by this Court in Baidyanath Panjiar v. Sitaram
Mahto & Ors.,(') the provision contained in section 23(3) is mandatory
not merely because of the language employed in that sub-section but
more so. in view of the purpose behind the particular provision. The
sub-section does not deal with any mode or procedure in the matter of
registering voters.
It interdicts the concerned officer from hfterfering
with the electoral process under the prescribed circumstances. Therefore, when there is a breach of section 23(3), the question is not of
an irregular exercise of power but of the lack of power itself.
It is thus clear that the Election Commission of India was within
its rights in withdrawing the p~lling booth at the Durma Committee
office in order that the new members may not vote at the election. The
reason which weighed with the Election Commission were evidently
different but its ultimate decision can seek its justification in what we
have stated above. It is unfortunate that the existing 40
members
of the Committee also were prevented from voting but they did not complain of the deprivation of their franchise, probably because they
thought that their names, in any case, were deleted from the roll on
the 5th itself.
It is a sad reflection that the sitting members of the Dumra Committee should have been dismembered on the eve of the elections, apparently without rhyme or reason.
The State Government undoubtedly possesses the power under section 389(c) of the Bihar and Oriss11.
Municipal Act, 1922, to make appointments to the Notified Area Committees but that power, it ought to be remembered, must be exercised
for carrying out the purposes of that Act, not for defeating them. The
issuance of the two notifications on the penultimate day, the feverish
activity following in their wake and the unseemly haste and hurry with
which the enrolment of new members was attempted to be rushed
through on the eventful evening of the 5th April lend great weight to
the contention of respondent l's counsel that the cancellation of the
old members and their replacement by the new ones was motivated by
considerations foreign to the good governance of the Area Committee.
We feel greatly uneasy that local machinations should have eventually
led in this case to a denial of the valuable right of franchise to the
whole body of 40 members who constituted the Area Committee. Such
occurrences, we hope, will not happen once too. often.
If they do, the
power of the State Governments to ~ake appomtmen~ to Area Commitees will itself become suspect, sappmg thereby the faith of the people
iri the working of what are believed to be the nurseries of democracies.
That leaves the second of the two contentions to be considered,
namely, that respondent l's election is vitiated because he attempted to
(1) [1970] 1 S.C.R. 839.
RAMJI PD. SINGH v. RAM BILAS JHA (Chandrachud, .I.)
751
bribe the voters Sri Narain Prasad and Ram Swarath Raut.
Having
considered the evidence of these two witnesses who are respectively
P.Ws. 11 and 71 and the evidence of the appellant himself, it seems to
us impossible to accept the allegation of bribery.
The two witnesses,
P.Ws. 11 and 71, are members of a local authority and it is unlikely
that an attempt would be made to bribe them. In the absence of any
evidence of unimpeachable nature and particularly in the absence of
any contemporaneous complaint in regard to the allegation of bribery,
it would be unsafe to accept the bare word of the appellant and his witnesses on such a serious charge.
The charge of bribery is quasicrimin~ in nature and in a series of cases this Court has held that such
a charge must be proved not by a mere preponderance_.of probabilities
but beyond a reasonable doubt.
That proof is lacking here.
Besides,
the High Court has considered the evidence on the question of bribery
fully and carefully and we do not see any reason for departing from
our established practice that, except for substantial reasons, this Court
will not embark upon a detailed assessment of oral evidence.
In the result, the appeal fails and is dismissed with costs in favour
of respondent 1.
P.H.P.
Appeal dismissed.
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