# u WOPANSAO v. N. L. ODYUO & ORS

- **Citation:** [1971] Supp. 1 S.C.R. 956
- **Court:** Supreme Court of India
- **Decided:** 1971-07-28
- **Case number:** Civil Appeal No. 1792 of 1970
- **Bench:** J. M. Shelat, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/u-wopansao-v-n-l-odyuo-ors-5473
- **Pages:** 7

## Headnote

Representation of the People A.ct, 1950-Section 20(3) & 30-Service·
Personnel-Statutory fiction does not take away right to get registered in
constituency where personnel ordinarily residing, though place of .service
alsv---Electoral roll-Finality of.
The appellant challenged the election of respondent No. I to the Naga
Land Assembly on the ground that the result of the election in so far as
it concerned the respondent had been materially affected by the improper
reception of votes cast in his favour by the personnel of the 12th Battalion
Assam Rifles. It was urged (i) that the Electoral Registration Officer had
no jurisdiction to register the personnel of the 12th Batallion Assam Rifles
as voters, because, the service personnel under s. 20(3) of the 1950 Act
would be deemed to be ordinarily resident on any date in the constituency
in which, but for his having such service qualifications he would have been
ordinarily resident on that date and (ii) that the service personnel were not
Indian citizens. The High Court dismissed the election petition. Dismissing the appeal to this Court,
HELD: (i) Section 30 of the 1950 Act does not confer jurisdiction
on a civil court to entertain or adjudicate upon a question whether a
person is or is not entitled to register himself in the electoral roll of a constituency or to question the illegality of the action taken by or under the
authority of the Electoral Registration Officer or any decision given by
the authority appointed under the 1950 Act for the revision of any such
roll. The civil court therefore would have no jurisdiction to adjudicate
upon a question whether the personnel of the 12th Battalion Assa1n Riff.cs
in the present case were validly registered as service electors. [958E, F]
B. M. Ramaswamy v. B. M. Krishnamurthy. [1963] 3 S.C.R. 479 and
Kabul Singh v. Kundan Singh, [1970] I S.C.R. 845, referred to.
(ii) But lack of power in the Electoral Registration Officer to register
voters in violation of the provisions of the relevant statutes would lead to
the ground of improper reception, refusal or rejection of any vote or reception of any vote which is void and would. therefore, be a ground for
avoiding the election under s. 100(1) (d) (iil) of the 1951 Act.
[959GJ
Baidyanath Panjiar v. Sitaram Mahto, [1970] I S.C.R. 839, referred to.
(iii) In the present case the Electoral Registration Officer was within
his jurisdiction to register the personnel of the 12th Batallion as ordinary
residents in the constituency by reason of their statements in the prescribed forms. The effect of s. 20(5) of the 1950 Act is that statement of a member having service qualification is to be accepted as correct in the absence
of evidence to the contrary. There was no evidence to displace the state·
ments in tho present case. [960E)
Under 1. 20(3) a fiction is created that members having service qualification would be deemed to be ordinarily resident at their home town or
place but for their service qualification. The statutory fic\ion is intended
WOPA!CSAO V. N. L. ODYUO (Ray,J.)
957
to confer the riaht to be reaistered as electors at their homo town or viiA
!age but the fii;tion cannot take away the riaht of persons possessinc
service qualification to aet themselvea reaistered in a constituency in which
they were ordinarily residina tbouah 1uch place happens to be their place
of service. [961B)
!iv) There was no evidence to substantiate the alleaation that the mom.
bers of the service personnel were not Indian citizens. On the contrary
it was in evidence that the Electoral Registration Officer was satisfied about'
B
the declarations of the members of the service personnel about their citi·
zenship. [962F]

## Text

956
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WOPANSAO
v.
N. L. ODYUO & ORS.
July 28, 1971
[J. M. SHELAT AND A. N. RAY, JJ.]
Representation of the People A.ct, 1950-Section 20(3) & 30-Service·
Personnel-Statutory fiction does not take away right to get registered in
constituency where personnel ordinarily residing, though place of .service
alsv---Electoral roll-Finality of.
The appellant challenged the election of respondent No. I to the Naga
Land Assembly on the ground that the result of the election in so far as
it concerned the respondent had been materially affected by the improper
reception of votes cast in his favour by the personnel of the 12th Battalion
Assam Rifles. It was urged (i) that the Electoral Registration Officer had
no jurisdiction to register the personnel of the 12th Batallion Assam Rifles
as voters, because, the service personnel under s. 20(3) of the 1950 Act
would be deemed to be ordinarily resident on any date in the constituency
in which, but for his having such service qualifications he would have been
ordinarily resident on that date and (ii) that the service personnel were not
Indian citizens. The High Court dismissed the election petition. Dismissing the appeal to this Court,
HELD: (i) Section 30 of the 1950 Act does not confer jurisdiction
on a civil court to entertain or adjudicate upon a question whether a
person is or is not entitled to register himself in the electoral roll of a constituency or to question the illegality of the action taken by or under the
authority of the Electoral Registration Officer or any decision given by
the authority appointed under the 1950 Act for the revision of any such
roll. The civil court therefore would have no jurisdiction to adjudicate
upon a question whether the personnel of the 12th Battalion Assa1n Riff.cs
in the present case were validly registered as service electors. [958E, F]
B. M. Ramaswamy v. B. M. Krishnamurthy. [1963] 3 S.C.R. 479 and
Kabul Singh v. Kundan Singh, [1970] I S.C.R. 845, referred to.
(ii) But lack of power in the Electoral Registration Officer to register
voters in violation of the provisions of the relevant statutes would lead to
the ground of improper reception, refusal or rejection of any vote or reception of any vote which is void and would. therefore, be a ground for
avoiding the election under s. 100(1) (d) (iil) of the 1951 Act.
[959GJ
Baidyanath Panjiar v. Sitaram Mahto, [1970] I S.C.R. 839, referred to.
(iii) In the present case the Electoral Registration Officer was within
his jurisdiction to register the personnel of the 12th Batallion as ordinary
residents in the constituency by reason of their statements in the prescribed forms. The effect of s. 20(5) of the 1950 Act is that statement of a member having service qualification is to be accepted as correct in the absence
of evidence to the contrary. There was no evidence to displace the state·
ments in tho present case. [960E)
Under 1. 20(3) a fiction is created that members having service qualification would be deemed to be ordinarily resident at their home town or
place but for their service qualification. The statutory fic\ion is intended
WOPA!CSAO V. N. L. ODYUO (Ray,J.)
957
to confer the riaht to be reaistered as electors at their homo town or viiA
!age but the fii;tion cannot take away the riaht of persons possessinc
service qualification to aet themselvea reaistered in a constituency in which
they were ordinarily residina tbouah 1uch place happens to be their place
of service. [961B)
!iv) There was no evidence to substantiate the alleaation that the mom.
bers of the service personnel were not Indian citizens. On the contrary
it was in evidence that the Electoral Registration Officer was satisfied about'
B
the declarations of the members of the service personnel about their citi·
zenship. [962F]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1792 of
1970.
Appeal under s. 116A of the Representation of the People
Act, 1951 from the judgment and order dated July 17; 1970 of
the Assam and Nagaland High Court in Election Petition No.
1 of 1969.
V. K. Krishna Menon, D. P. Singh, Narayana Net/or and
V. J. Francis, for the appellant.
A. K. Sen, S. K. Ghosh, Naunit Lal, A. R. Barthakur, R. C.
Chaudhary and Swranjit Sodhi, for respondent No. 1.
The Judgment of the Court was delivered by
Ray, J.-This is an appeal from the judgment dated 17
July, 1970 of the High Court of Assam and Naga.land dismissing 1he appellant's election petition .
. The appellant, respondent No. I Odyuo .and respondents No.
2 allfl 3 were candidates at 37-Wokha Constituency.at the election
held in the month of February, 1969 for the purpose of constituting a new Lepslative Assembly of the State of Nagaland.
The respondent Odyuo was declared elected. Odyuo obtained
1517 votes and the appellant 1485 votes.
Odyuo secured 32
votes more than the appellant.
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The appellant
challenged the
election of the respondent
Odyuo as a member from 37-Wokha Constituency in the NagaG
land Constituent Assembly.
The grounds for im~hing the
election were principally these. First, the result of the election
in so far as it concerned the respondent Odyuo had been mate·
rially affected by the improper reception of 348 votes cast in his
favour by the personnel of the 12th Battalion Assam Rifles then
posted at Wokha and also by the wives of some of them who in view
H
of section 20(3) of the Representation of the People Act, 1950
referred to for the sake of brevity as the 1950 Act were not eli·
gible to be enrolled as voters in the electoral roll of the Wokh31
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SUPREME COURT REPORTS
[1971] SUPP. s.c.R.
Constituency. Second, the majority of those 348 voters were not
citizens of India, and, therefore, the votes cast by them in favour
of the respondent Odyuo were void. Third, if the aforesaid 348
votes or the majority of them as void votes were left out of
account, the appellant had secured a majority of valid votes.
Among the ten issues framed at the trial counsel for the
appellant advanced arguments only on two issues. First, whether
the personnel of the 12th Battalion, Assam Rifles whose names
are registered as service electors in the last part of the Electoral
Roll for 37-Wokha Constituency would, but for their service qualification, have been ordinarily resident of Wokha Constituency
within the meaning of section 20(3) of the Representation of the
People Act, 1950. Second, whether any of the electors registered
as service electors in the last part of the said Electoral Roll were
not Indian citizens.
This Court in B. M. Ramaswamy v. B. M. Krishnamurthy
& Ors.(') held that the finality of the electoral roll cannot
be challenged in a proceeding
impeaching the validity of the
election. The effect of section 30 of the 1950 Act was construed
by this Court in the recent decision in Kabul Singh v. Kundlm
Singh & Ors.(') to be that sections 14 to 24 of the 1950 Act are a
complete code in the matter of preparation and maintenance
of electoral rolls and section 30 of the 1950 Act does not confer
jurisdiction on a civil court to entertain or adjudicate upon a
question whether a person 'is or is not entitled to register himself
in the electoral roll in a constituency or to question the illegality
of the action taken by or under the authority of the Electoral
Registration Officer or any decision given by the authority
appointed under the 1950 Act for the revision of any such roll.
The civil court
therefore would have no
jurisdiction to
adjudicate upon a question whether the personnel of the 12th
Battalion Assam Rifles in the present case were validly registered
as service electors. The contention on behalf of the appellant
in the present case was that the Electoral Registration Officer
had no jurisdiction to register the personnel of the 12th Battalion
Assam Rifles as voters in
Wokha Constituency
because the
service personnel under section 20(3) of the 1950 Act would he
deemed to be ordinarily residents on any date in the constituency
in which, but for his h3ving such service qualification, he would
have been ordinarily resident on that date.
The gist of the
appellant's contention is that the members having service qualification cannot be registered as voters in the constituency in
whieh they are posted or stationed in service and the Electoral
(!) [1963] 3 S.C.P.. 479.
(2) [1970] I S.C.R. 845·
__,
WOPANsAO V. N. L. ODYUO (Ray,J.)
Registration Officer would have no jurisdiction to register the
persons having service qualification as voters in the constituency
in which they are stationed In service.
The jurisdiction of the
Electoral Registration Officer who registered the personnel of the
12th Battalion Assam Rifles as voters in Wokha Constituency
wall impeached on the ground that the service personnel were in
th~ eye of law not ordinarily resident In the Wokha Constituency
and as such they were not eligible to be registered as voters in
the electoral roll of the said constituency.
The other grounds on which the qualification of the service
personnel to be registered as voters in the Wokha Constituency
was questioned was that they were not Indian citizens.
Article
326 of the Constitution confers voting rights on citizens of India.
Section 16 of the 1950 Act disqualifies a person for registration
as a voter if he is not a citizen of India. Section 62 of the
Representation of the People Act, 1951 called the 1951 Act
prohibits a person from voting at an election in any constituency
if he is subject to any disqualifications mentioned in section 16
of the 1950 Act. Under section !OO(l)(d)(iii) of the 1951 Act if the
result of the election in so far it concerned the returned candidate
has been materially affected by the improper reception, refusal
or rejection of any vote or reception of vote whlch is void, the
court would have jurisdiction to declare such an election void.
Therefore, if the allegation that the personnel of the 12th Battalion
Assam Rifles were not Indian citizens was established;'"" it was
submitted that the election would be declared void.
The jurisdiction of the Electoral Registration Officer to
register the voters was submitted on behalf of the appellant to
be an infraction of the provisions contained in sectio11 20 of the
1950 Act on the ground of the service personnel not being
entitled to be voters at Wokha Constituency, and of section 16
of the 1950 Act read with section 62 of the 1951 Act challenging
the
qualification of the voters on the ground of citizenship.
This Court in Baidyanath Panjiar v.
Sitaram Mahto & Ors.(')
held that the lack of power of the Electoral Registration Officer
to register voters in violation of the provisions of the relevant
statutes would lead to the ground of improper reception, refusal
or rejection of any vote or reception of any vote which is void
and would. therefore. be a ground for
avoiding the
election
under section I OO(l)(iii) of the 1951 Act.
Section 20 of the 1950. Act gives the meaning of the words
'ordinarily resident'.
Under section 20(3) of the 1950 Act any
person having a service qualification shall be deemed to be ordinarily resident on any date in the constituency in which, but for
his having such service qualification, he woald have been 0rdinarily resident on that date. Service qualification is defined in section
(\) [IJ7J] I S. C.R. 839.
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IUPlllll! COVllT RIPOllTS
[1971] SUPP. s.c.ll.
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20(8) of the 1950 Act to mean inter alio a member of the Armed
i:orces of the Union, or a member of a force to which the provi·
s1ons of the Army Act, 1950 have been made applicable. Section
20(5) of the 1950 Act enacts that the statement of any person
as is referred to in section 2()(3) in the Act made In the prescribed
form and verified in the prescribed manner, that but for his
having the service qualification he would have been ordinarily
resident in the specified place on any daote, shall, in the absence
of evidence to the contrary, be accepted as correct.
Under
section 20(6) of the 1950 Act tile wife of any such person as is
referred to in sub-section (3), shall if she be ordinarily residing
with such person be deemed to be ordinarily resident in the
constituency specified by such person under sub-section (5).
The personnel of the 12th Battalion Assam Rifles at Wokha
had indisputably service qualification. It is In evidence that the
personnel of the 12th Battalion had been residing at Wokha lO
years prior to the time of the preparation of the electoral rolls
and at the time of preparation of the electoral rolls res:ded at
Wokha.
The service personnel made statements under section
20(5) of the Act that but for their having the service qualification
they would have been ordinarily residents at Wokha. They also
made statements that their wives were residing with them. They
submitted forms in the prescribed forms. These statements made
under Rule 7 of the Registration of Electoral Rules, 1960 were
submitted to the Registration Officer. The effect of section 20(5)
of the
1950 Act is that statement of a member having service
qualification is to be accepted as correct in the absence of evidence
to the contrary. There was no evidence to displace the statements
in the present case. The evidence Is that the Electoral Registration Officer accepted the statements as correct and registered the
names of the personnel of the 12th Battalion.
Tile contention on behalf of the appellant was that a member
h&ving service qualification can only be ordinarily residen~ at
the constituency in which but for his having service qualification
he would have been ordinarily resident on that date, and, therefore, since Wokha was the place for service, Wokha could not
be tl:c place for ordinary residence and his home town
or village would be the only place where he would be
ordinarily resident.
Such a construction would be misrea·
ding section
20(3)
of
the
1950
Act,
.hav!ng
se~vice
qualification would
be deemed
to be
o~dinarily
res1d~nt
at their home town or place but for their service qualification. When the personnel made statements to the effect that
they ordinarily resided at Wokha, they did not want to take
advantage of the fiction of being ordinarily resident at their home
r
WOPAN!IAO v. N. L. ODYUO (Ray, J.)
town or village but they stated that they were ordinarily resident
at Wokha..
The Electoral Registration Officer was within his
jurisdic1io.n to register the personnel of the 12th Battalion as
ordinary residents at Wokha by reason of their statements in
tile prescribed forms. The statutory fiction is intended to confer
the right to be registered as electors at their home town or village
bat the fiction cannot take away the right of persons possessin3
service qualification to get themselves registered at a constituency
in which they are ordinarily residing though such place happens
to be their place of service.
A contention was advanced on behalf of the appellant that
i; registering the service electors the Registration Officer did not
exercise his discretion but merely carried out the orders and directions of the Chief Ele<;toral Officer. The l{igh Court referred to
the directions and instructions for preparation of electoral rolls
for
Armed
Forces personnel and held that
the
staten1ents in form No. 2 as prescribed by Rule 7 of the Regist·
ration of Electoral Rules, 1960 were checked PY 'the Pfficer·
in -<'.barge of the Record Office and were thereafter forwarded to
the Chief Electoral Officer concerned in whose office the statements were sorted out according to the constituency and thereafter
forwarded to the Electoral Registration Officer concerned.
We
agree with the reasons and conclusion of the High Court that
the decision of the statutory authority which acted on the declara·
tions submitted by the service. personnel verified and found to
be correct was beyond any challenge on the materials on record.
The contentions on behalf of the appellant were that of the
348 service electors 37 were not Indian citizens, 35 of them being
Nepa.ti and 2 Sikkimese and further that out of the remaining
service .electors excepting 69 the rest were not Indian citizens.
lbese 'fere the allegations of the appellant in the particulars furnilihed by him in an application dated 4 October, 1969.
The appellant in his evidence stated that he was not clear
whether the service electors were citizens of India or foreigners.
It was also his evidence that when he asked the Record Officer
at Shillong he learnt that many of the service personnel were not
Indian citizens. The evidence of the appellant is not substantive
evidence, or any proof of the allegation. Part of it is hearsay and
is not corroborated. The other part is not of evidentiary vaAue.
The appellant relied heavily on the evidence of P. W. 6,
Dhrubajyoti Lahiri in proof of the allegation that the majority of
the service personnel were not Indian citizens. Lahiri said that
there was a Long Roll in two volumes which were marked Exhibill 17 and 18. The Long Roll was the register containing the
l"llRidential particulars of the personnel, the date of enrolment. and
61-1 S.C. Indi•/71
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other heads of entries, namely, serial number in the book, number
of personnel, rank, name, father's name, religion and class or
caste, residential particulars giving village, neacest railway station,
Post Office, Tehsil and Thana, District and Province, date of birth,
enrolment, discharge, Education. There is no column or heading
regarding nationality in the Long Roll. Exhibit 19 which was
tendered in evidence was a list in tabular form. Exhibit 19 was
prepared by Lahiri. He said that he himself compared it with
the Long Roll. Lahiri's evidence was that there was no column
in the Long Roll for citizenship. Lahiri's evidence was that the
home address of some of these service personnel was Nepal. ln
cross-examination,
Lahiri said
that the service personnel
were
called
Nepali
by common
parlance.
Lahiri
also
said that the service personnel filled up the forms declaring that
they were Indian citizens and Lahiri himself also asked the
service personnel about their citizenship. His evidence was that
these members of the service personnel were Indian citizens.
It is in evidence that the Electoral Registration Officer said
that he was satisfied about the declarations of the members of the
service personnel about their Indian citizenship. The High Court
correctly found that in the sta.tements furnished by the service
per~onnel being Exhibit 6 series and Exhibit A series, they declared themselves to be citizens· of India and the statements were
verified by the Record Officer.
The High Court also correctly
held that no objection was taken at any stage and no notice was
given to any member of the service personnel that their names
would be objected to on the ground thwt they were not Indian
citizens and they have not been given any opportunity of being
heard in respect of the allegation. No such member of the service
personnel was examined. There is no evidence to substantiate
the allegation which was made that members of the service personnel were not Indian citizens. On the contrary, the evidence
oral as well as documentacy is overwhelming and unrebutted that
each member of the service personnel made a statement declaring
himself to be an Indian citizen.
The contentions advanced on behalf of the appellant fail.
The appeal is dismissed with costs.
K.B.N.
Appeal dismisNd.