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The Representation of the People Act, 1951
Section 21 in The Representation of the People Act, 1951
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Section 30 in The Representation of the People Act, 1951

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Punjab-Haryana High Court
Bimal Kaur Khalsa vs Sujan Singh And Ors. on 10 June, 1986
Equivalent citations: AIR 1987 P H 145
Bench: R Mittal

ORDER

1. The petitioner and the respondents contested the election to the Punjab Legislative Assembly in Sept., 1985 from Pakka Kalan (SC) Constituency in which respondent No. 1 Shri Sujan Singh, an Akali candidate, was declared elected. The total votes polled m the election were 63862 out of which 59455 were valid votes. Respondent No. 1 obtained 17017 votes and the petitioner 16602 votes. The votes obtained by the petitioner were the highest amongst the candidates who lost the election. The elections for the Parliament from the Punjab were also held simultaneously with the Assembly elections. Pakka Kalan (SC) Assembly Constituency was a segment of Bhatinda (SC) Parliamentary Constituency.

2. It is averred in paras Nos. 5 to 7 that R. 29 (In fact the rule to which reference has been made by the counsel for the petitioner is R. 22 and not R. 29. The matter has been clarified in the replication.) of the Conduct of Election Rules, 1961 (hereinafter referred to as the Rules) provides that every ballot paper shall be of such design as may be approved by the Election Commission. According to the instructions of the Commission no space was to be left on the ballot paper below the name of the last candidate. However, lot of space was left vacant below the name of the petitioner, whose name was printed at the end. Her symbol was lion and that of Sujan Singh respondent No. 1 was scales. The total number of votes polled by the-candidates in the Bhatinda (SC) Parliamentary Constituency was 5,92.839 out of which the number of valid votes was 5,65,588. Shri Chet Ram was ore of the candidates to the Parliamentary Constituency and his election symbol was the same as that of the petitioner. It is alleged that he was independent candidate and had no personal influence in the Constituency. The total number of votes polled by him was 11254 out of which 6836 polled in Pakka Kalan (SC) Assembly segment and the remaining 4418 votes in the other 8 Assembly segments.

3. In paras 8 to 10, it is alleged that the polling in both the Constituencies, i.e., Parliamentary Constituency and the Assembly Constituency, was held on 25th Sept., 1985. The District Election Officers against the provisions of S. 26 of the Representation of the People Act, 1951 (hereinafter referred to as the I951 Act appointed the same presiding officers, polling officers in all the polling stations for Parliamentary and Assembly Constituencies. The polling stations were also the same.

4. It is further pleaded in para 11 of the petition, that in each polling booth 5 polling officers assisted electors in casting their votes; the first one checked the identity of the elector, the second one marked with indelible ink his left forefinger, the third one issued to him one ballot paper, the fourth one issued to him second ballot paper and instrument for marking and the fifth one received the ballot papers, folded them and put them in the same ballot box. After having received both the ballot papers, the elector used to mark them in the compartment reserved for the purpose with the instrument provided to him. Thereafter he went to the 5th polling officer and handed over the ballot papers to him for being put in the ballot box. The procedure, it is alleged in para 12, was violative of the procedure laid down by R. 39(2). Under the said rule the elector after receiving the 1st ballot paper and before receipt of the 2nd ballot paper was required to proceed forthwith to one of the voting compartments, to mark and insert the same in the ballot box. In para 13 the petitioner alleges that the issuing of second ballot paper before the first ballot paper w~ put in the ballot box tantamounts to multiple voting, which was not permissible under any rule, the provisions of the Constitution of India and the 1951 Act.

5. In paras 14 and 15 it is pleaded that the colours of the ballot papers of the Parliament and those of the Assembly were practically the same. In a large number of cases the electors who wanted to vote in favour of the petitioner marked the parliamentary ballot paper on the symbol of lion. This was the reason that Shri Chet Ram got 6836 votes in Pakka Kalan Assembly segment of the Bhatinda (SC) Parliamentary Constituency. On the average he got 515 votes from each of the remaining 8 Assembly segments of the Bhatinda (SC) Parliamentary Constituency. The maximum votes obtained by him in the Assembly segments were 862. Even if he is given the credit of 862 votes, the remaining 5974 votes i.e. 6836 minus 862, are those of the petitioner. The election has thus been materially affected to the prejudice of the petitioner. In case 5974 votes were added to 16602 votes obtained by her, the total number of votes polled in her favour would have been more than those polled in favour of the returned candidate. Thus under S. 100(1)(d)(iv) of the Act the election of the returned candidate is liable to be declared void. She is, however, it is next pleaded, unable to give the particulars of 6836 votes, as in the Parliamentary election she had no polling, counting or election agent.

6. Shri Teja Singh Dardi, it is averred in para l6, was a candidate of Akali Dal from Bhatinda (SC) Parliamentary Constituency. His symbol was scales. He received 20221 votes in Pakka Kalan Assembly segment and 34456 in Nathana Assembly segment. In other segments he received votes varying from 24905 to 33939. Thus out of all the Assembly segments he got the least number of votes in Pakka Kalan Assembly segment. It is alleged that the reason was that when an elector went to the compartment with both the Parliamentary and Assembly ballot papers, he marked on the symbol of lion on one ballot paper and on the symbol of scales on the other ballot paper. After marking the Parliamentary ballot paper on the symbol of lion, i.e., in favour of Shri Chet Ram he marked the Assembly ballot paper on the symbol of scales, i.e., in favour of Sujan Singh though his intention was to mark the ballot paper relating to the Assembly in favour of the petitioner and that of the Parliament in favour of Shri Teja Singh Dardi. Due to the confusion not less than 4000 votes, which would have been cast in favour of the petitioner, have been cast in favour of Shri Sujan Singh respondent. The said votes are liable to be deducted from the votes of Shri Sujan Singh and added to her votes. In this way, the total number of valid votes of the returned candidate stand reduced to 13017 (17017-4000) and those of the petitioner stand increased to 20602 11b602 + 4000). The election of the returned candidate is liable to be set aside and the petitioner is entitled to be declared elected on this ground.

7. It is alleged in para 17 that in Pakka Kaian (SC) Assembly Constituency 4407 ballot papers and in Pakka Kalan segment of Bhatinda (SC) Parliamentary Constituency 4114 ballot papers were rejected. The number of rejected ballot papers in Pakka Kalan segment is the maximum as compared to the other segments of the Bhatinda (SC) Parliamentary Constituency. The rejected votes in other 8 segments varied from 2338 to 3155. Thus more than eight thousand ballot papers for both Pakka Kalan (SC) Assembly Constituency and Pakka Kalan segment were rejected. Out of them, nearly 4000 votes were marked at two places, i.e., on the symbol of scales and the symbol of lion. About one half of those votes pertained to Pakka Kalan (SC) Assembly Constituency and the other half pertained to Pakka Kalan segment. lt is alleged by the petitioner that the intention of the elector was to vote for Shri Teja Singh Dardi in the Parliamentary seat and for the petitioner in the Assembly seat as the propaganda was to put mark on the symbol of scales or the upper seat and to put the symbol on the symbol of lion for the lower seat. In the Assembly ballot paper the symbol of scales was at a higher place than the symbol of lion. By putting his mark on the symbol of scales the elector intended to vote for Shri Teja Singh Dardi and by putting his mark on the lion he intended to vote for the petitioner. Because the elector was given both the ballot papers simultaneously, he put the mark on symbol of scales and the symbol of lion on the same ballot paper, little realising that the ballot paper was meant for the Assembly seat. It is further averred that due to the illegal procedure of conducting the election 2000 votes of the petitioner were wrongly rejected and she is entitled to the credit of those votes. By adding 2000 votes polled by her the total number comes to 18602 116602 + 2(~0) which number is more than that of respondent No. 1. Thus by the rejection of 2000 votes the result of the election has been materially affected and the petitioner is entitled to be declared elected.

8. It is next averred in para No. 18 that out of 4407 rejected ballot papers in Pakka Kalan (SC) Assembly Constituency 1000 ballot papers were such which borne only one mark at the bottom in the margin of the ballot paper. The name of the petitioner and her symbol were shown at No. 8 which was the last number in the ballot paper. The elector. it is stated, had been held to vote in her favour by marking the ballot paper at the bottom. The intention of the electors. earmarking the ballot paper in the margin was to vote in her favour. However, the ballot papers were rejected as the mark was not in the column in front of her symbol. It is alleged that a lot of empty space had been provided, in the ballot paper below the name of the last name in violation of the statutory instructions issued by the Election Commission under R. 29 of the Rules. The said 1000 votes could not be rejected as the intention of the electors was to vote in her favour. With the addition of the said number of votes she gets 17602 votes (16602 + 1000) which were more than ' the votes secured by the returned candidate. The election of the returned candidate is liable to be set aside and the petitioner is entitled to be declared elected on this ground too.

9. When thc elector, it is pleaded in paras 19 and 20, approached the polling officer, he used to be asked to put his signature/thumb-impression on the counterfoil. When he received the ballot paper some impression of the wet thumb got on the ballot paper. 100 such ballot papers which were marked in favour of the petitioner were rejected on the ground that they bore the thumb-impression which in fact had been inadvertently put by the electors. This did not disclose the identity of the elector and as such these ballot papers were not liable to be rejected. These ballot papers should be counted in her favour. At Kal Jharani polling station it was discovered at the time of counting that both the Parliamentary and Assembly votes were found folded together in one fold which was in violation of R. 39 of the Rules.

10. In para 21 it is averred that the intention of the Legislature is that there should be no confusion or intermingling when the elections to the Parliamentary and Assembly Constituencies are held simultaneously. Rule 37(3) of the rules provides that where a poll is taken simultaneously in a Parliamentary Constituency and Assembly Constituency, an elector whose left forefinger has been marked with indelible ink or who has produced his identity card at one such election shall notwithstanding anything contained in sub-rr. (1) and (2) be supplied a ballot paper for the other election. This means that the two elections, one to the Assembly and the other to the Parliament are separate elections. It is alleged that in view of the abovesaid provision they may be held simultaneously but have to be kept in two separate watertight compartments.

11. In para 22 it is stated that on 23rd Sept., 1985, Shri Parkash Singh Badal, Ex-Chief Minister, Punjab, went to village Kot Shameer and addressed a meeting in support of the returned candidate. Shri Sujan Singh also addressed that meeting and said that as the petitioner was the widow of Shri Beant Singh who had murdered Mrs. Indira Gandhi all the supporters of the petitioner would be arrested. Shri Devinder Singh, Sarpanch and Shri Manjit Singh Sidhu, Member, Panchayat Kot Shameer who were the supporters of the petitioner had been arrested by the police on 23rd September, 1985, in order to terrorise her supporters and to prevent them from voting in her favour. Thus the returned candidate is guilty of corrupt practice as defined in S. 123(2) and his election is liable to be set aside on this score.

12. It is averred in para 23 that S. 15 of the Representation of the People Act, 1950 (hereinafter referred to as the 1950 Act) provides that for every Constituency there shall be an electoral roll which shall be prepared in accordance with its provisions. Section 17 says that no person shall be entitled to be registered in the electoral roll of more than one Constituency. The returned candidate was enrolled as a voter in an electoral roll in the State of Haryana and on that basis he had been elected as a member of the Haryana Legislative Assembly from Jundla Constituency, in the election held in 1982. However, he also got himself registered in village Kot Bhai Tahsil Muktsar, District Ferozepur as a voter which he was not entitled to do. As at all material times, i.e., at the date of filing the nomination the date of scrutiny, the date of poll and the date of declaration of result he was enrolled as an elector for Haryana Legislative Assembly and was a member of that Assembly on Lok Dal ticket, his election is liable to be set aside on this ground as well.

13. In para 24 the petitioner pleaded that the returned candidate contested the election to the Punjab Assembly as a nominee of the Akali party. The returned candidate continued to be a member of the Lok Dal on the date of filing the nomination paper, the date of scrutiny and the date of declaration of the result of Pakka Kalan Constituency. His resignation from the membership of Haryana Legislative Assembly was accepted by the Speaker on 1st October, 1985. It is alleged that he was disqualified for being a member of the Punjab Legislative Assembly, under para 2 of the Tenth Schedule of the Constitution of India and as such his election was liable to be set aside under the provisions of S. 100(1)(a) of the 1951 Act.

14. Consequently a prayer has been mad. that the election petition be accepted, election of the returned candidate to the Punjab Legislative Assembly be set aside and the petitioner be declared as elected as a member of the said Assembly.

15. The election petition has been contested by respondent No. 1 who controverted the allegations of the petitioner and inter alia pleaded that the petitioner has challenged the election on the ground of corrupt practices. However, in violation of the mandatory requirement of law she did not attach an affidavit in the prescribed form as was required to be done under the Act and the Rules. The affidavit in the prescribed form was filed after the expiry of the period of limitation for filing the election petition. It is pleaded that the Registrar or his delegate could not entertain the election petition when it was not accompanied by the affidavit in the prescribed form and he could not enlarge the time for filing the affidavit beyond the period of limitation. The failure to file an affidavit, it is alleged, is a fatal defect and the election petition is liable to be dismissed on this ground alone.

16. It is further pleaded that the election petition does not disclose any complete or triable-cause of action. The allegations contained in paras 5 to 21 of the election petition are liable to be struck off and/or expunged under O. 6, R. 16 of the Code of Civil Procedure. Even if the allegations contained therein are assumed to be correct, they did not provide the legal ground to the petitioner for claiming the relief prayed for. There is no violation of any provisions of the Act or the Rules as alleged by the petitioner.

17. The petitioner filed a replication to the written statement. Therein she reasserted her allegations in the petition. She further said that through typographical mistake R. 29 has been mentioned instead of R. 22 in para 5. Rule 22 is regarding the form of the ballot papers and that the directions of the Election Commission to the effect that no space should be left vacant before the name of the last candidate have been violated. On the pleadings of the parties the following preliminary issues were framed by me on 11th April, 1986:

l. Whether the petition is liable to be dismissed for filing the affidavit in due form under S. 83 of the Representation of the People Act after the expiry of the period of limitation for filing the petition? OPR

2. Whether the petition does not disclose complete and triable causes of action? OPR

3. Whether paras 5 to 21 of the petition are liable to be struck off under O. 6, R. 16 of the Code of Civil Procedure on the ground that they are vague and lacking in material facts? OPR

4. Whether paras 22, 23 and 24 of the petition do not disclose triable cause of action? OPR.

Issue No. 1

18. It is contended by Mr. Tulsi that in violation of the mandatory requirement of law the petitioner did not attach affidavit in the prescribed form. It was filed on the objection of the registry after the expiry of the period of limitation. Consequently the election petition is liable to be dismissed, as the defect is a fatal one.

19. I have duly considered the argument but do not find any substance therein. In S. 83 of the Act it is provided that where the petitioner alleges any corrupt practice, the petition shall be accompanied by an affidavit in the prescribed form in support of the allegation of the corrupt practice and the particulars thereof. Rule 94A deals with the form of affidavit and it save that an affidavit shall be in form 25. Form 25 reads as follows: "I................ the petitioner in the accompanying election petition calling in question the election of Shri/Shrimati.... (respondent No..................... in the said petition) make solemn affirmation/oath and say (a) that the statement made in paras.......... of the accompanying election petition about the commission of the corrupt practice of............ and the particulars of such corrupt practice mentioned in paras............... of the same petition and in paras............ of the Schedule annexed thereto are true to my knowledge. (b) that the statements made in paras......... of the said petition about the commission of the corrupt practice of.........and the particulars of such corrupt practice given in paragraph........of the said petition and in paragraphs.............of the schedule annexed thereto are true to my information; (c) and (d)

etc. Signature of deponent.

Solemnly Shri/Shrimai affirmed/sworn by

.....at..........this.......... day of..................... 19

Before me. Magistrate of the first class/ Notary/Commissioner of Oaths."

20. It is evident from the language of the form that Clause (a) is applicable if the facts given in the petition are true to the knowledge of the petitioner and Clause (b), if the facts given therein are true to his information. In the present case the petitioner had no personal knowledge but had information regarding the facts given in para 22 of the petition. Therefore. she was required to give the affidavit in the form having Clause (b). In the said clause. the details required to be given were the numbers of the paragraphs of the petition containing the statement of commission of the corrupt practice and particulars of the corrupt practice, the description of the corrupt practice and the numbers of the paragraphs of the schedule if annexed with the petition. In the present case the allegation of corrupt practice has been made in para 22 which reads as follows: "That on 23-9-1985 Shri Parkash Singh Badal, ex-Chief Minister, Punjab went to village Kot Shameer and addressed a meeting in support of Shri Sujan Singh respondent No. 1. Shri Sujan Singh also addressed the said meeting and announced that as the petitioner is the widow of Shri Beant Singh who had murdered Mrs. Indira Gandhi, all the supporters of the petitioner would be arrested. Actually Shri Devinder Singh, Sarpanch and Shri Manjit Singh Sidhu, Member Panchayat. village Kot Shameer were arrested by the Police on 23-9-1985 by registering a false case against them. Shri Devinder Singh and Manjit Singh Sidhu were supporters of the petitioner. They were arrested in order to terrorise the supporters of the petitioner and to prevent them from voting in favour of the petitioner. Thus the respondent No. 1 is guilty of corrupt practice as defined by S. 123(2) of the Representation of the People Act, 1951. The election of the respondent No. 1 is liable to be set aside on this score." The affidavit dated 13th Nov. 1985 annexed. with the petition reads as follows:

"............

Affidavit of Smt. Bimal Kaur Khalsa wd/o. Shri Beant Singh, resident of H.No. 1016, Ward No. 21. Bhatinda.

I, the above named deponent do hereby d solemnly affirm and declare as under:

"(..................................)

Note: "Here para 22 of the petition is given.

Dated: 13-11-85

Sd/- Bimal Kaur Khalsa

(Bimal Kaur)    

Deponent.   

Verification.

I, the above named deponent, do hereby, solemnly affirm and declare that the contents of my affidavit are based on information; derived from S/Shri Devinder Singh, Sarpanch and Manjit Singh Sidhu, Member Panchyat of village Kot Shameer, which 1 we believe to be true and correct. Dated: 13-11-85

Sd/- Bimal Kaur Khalsa

(Bimal Kaur)    

Deponent.   

21. In the affidavit the deponent has reproduced whole of para 22 and in the verification clause she has affirmed that the contents of the affidavit were based on information derived from Devinder Singh, Sarpanch, etc. Instead of giving the number of paragraph in affidavit she has reproduced whole of the para. The section under which the corrupt practice falls has been given in the para itself. Thus she has given the particulars of the corrupt practice as well as its name. She has also given the source of her information. In my view, she has complied with the form in which the affidavit is required to be given. Therefore, the registry could not ask the petitioner to file a fresh affidavit. The said affidavit was filed along with the petition and. therefore, the petition cannot be dismissed under S. 83 of the Act.

22. The matter may be examined from another angle. Even if there is some formal defect in the affidavit, that is not of such nature which entails dismissal of the petition. The object of introducing the provisions for filing the affidavit is that the petitioner may not make wild allegations with impunity regarding corrupt practices. In this view I am fortified by the observations of a Division Bench of Rajasthan High Court in Satish Kumar v. Election Tribunal, Alwar, AIR 1963 Raj 157. In that case an affidavit filed along with an election petition was defective in part inasmuch as it was not in the prescribed form though it substantially complied with the form and further it did not mention which facts were true to the election petitioner's knowledge and which of them he believed to be true on the basis of information. The Tribunal permitted him to file a new affidavit in the prescribed form according to law. The said order of the Tribunal was challenged. It was held by the learned Bench that it was not incumbent on the Tribunal to dismiss the petition. The election petitioner had verified the facts and the only mistake committed by him was not to make a clear distinction as to which of them were true to his own knowledge and which he believed to be true on the basis of the information derived from others. By allowing him to file a new affidavit the Tribunal did not permit him to make any new allegations which were not already contained in the petition: The order did not, therefore, prejudice the opposite party. It was further held that it was not obligatory for the Election Tribunal to dismiss the election petition on account of every non-compliance of S. 83. The above judgment was followed by the same High Court in Smt. Kamla Beniwal v. Dhir Singh, AIR 1968 Raj 282.

23. A similar matter came up before the Supreme Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, AIR 1964 SC 1545. In that case an argument was raised that the affidavit was neither in the prescribed form nor it was properly sworn as required by the Rules. The Tribunal observed that verification of the affidavit of the petitioner was apparently not in the prescribed form but reading as a whole the verification carried the same sense as intended by the words mentioned in the prescribed form. The mistake of the Oath Commissioners in verifying the affidavits could not be sufficient ground for dismissal of the petition of the petitioner summarily as the provisions of S. 83 were not necessarily to be complied with, in order to make a petition valid and such affidavit could be allowed to be filed at a later stage also. The High Court affirmed the view of the Tribunal. S. K. Dass, J., speaking for the Supreme Court, observed that they agreed with the view expressed by the Tribunal and that the defect in verification due to inexperience of the Oath Commissioner was not such a fatal defect as required the dismissal of the election petition.

24. The counsel for the petitioner referred to Virendra Kumar Saklecha v. Jagjiwan, AIR 1974 SC 1957. In that case the source of information in the affidavit had not been given. The Court did not express any opinion on the point. After taking into consideration all the aforesaid circumstances, I decide issue No. 1 against the respondent. Issues Nos. 2, 3 and 4.

25. All the above issues are inter connected and, therefore, I propose to decide them together. The election of the returned candidate has been challenged by the petitioner on the following grounds: (i) That the result of the election has been materially affected by non-compliance with the provisions of the Rules, the 1951 Act and the Constitution of India; (ii) that the returned candidate was guilty of corrupt practice;

(iii) that the returned candidate was not validly registered elector in the State of Punjab: and

(iv) that the returned candidate was disqualified to be chosen as a member of the Punjab Legislative Assembly under para 2 of the 10th Schedule of the Constitution of India.

26. On analysing the petition it will be seen that the first four paragraphs are introductory. Paragraphs 5 to 21 relate to ground No. (i), para 22 to ground No. (ii), para 23 to ground No. (iii) and para 24 to ground No. (iv). I shall deal with each ground separately. Ground No. (i)

27. The petitioner in the petition has alleged infringement of S. 26 and Rr. 22, 37(3) and 39. Paragraphs 5 to 7 and 18 refer to the infringement of Rule 22. The details allegations in the said paras have been given above. The grievance of the petitioner in nut shell is that the ballot papers were not printed according to the design as approved by the Election Commission and lot of space in the margin was left blank which could not be done. The electors, therefore, were mis-led and some electors instead of marking the ballot papers in the space provided against the name of petitioner, marked it in the margin under her name. There were 1000 such electors and consequently, their votes were rejected. If the ballot papers had been printed according to the instructions, the petitioner would have received 1000 more votes. Rule 22 is as follows:--

"(1) Every postal ballot paper shall have a counterfoil attached thereto, and the said ballot papers and the counterfoil shall be in such form, and the particulars therein shall be in such language or languages, as the Election Commission may direct. (2) The names of the candidates shall be arranged on the postal ballot paper m the order in which they appear in the list of contesting candidates.

(3) If two or more candidates bear the same name, they shall be distinguished by the addition of their occupation or residence or m some other manner."

From a reading of the Rule, it is evident that it applies to postal ballot papers and not to the ordinary ballot papers. Consequently, the petitioner cannot get any benefit from the Rule. Even if it may be assumed that it applies to other ballot papers as well, it prescribes that the ballot papers shall be m such form as the Election Commission may direct. No. instructions of the Election Commission have been brought to my notice in which the width of the margin around the ballot paper was prescribed by it. In the circumstances, it cannot be held that R. 22 has been infringed.

28. Section 100(1)(d)(iv) says that if the High Court is of the opinion that the result of an election in so far as it concerns the returned candidate, has been materially affected by any non-compliance with the provisions of the Constitution or of the Act or any Rules or Orders made under the Act, it shall declare the election of the returned candidate to be void. It is evident from the section that the election can be set aside if the petitioner alleges and proves two things-firstly, that there is non-compliance of the provisions of the Constitution or of the Act or of the Rules or the Orders made under the Act and secondly that the result has been materially affected by the said non-compliance. In the present case, as already observed above, the petitioner failed to prove non-compliance of the Rules in the afore mentioned paras. Consequently, I am of the opinion, that the said paras do not disclose any triable cause of action and are liable to be struck off.

29. Paragraphs 11, 12, 14, 16, 20 and 21 relate to infringement of Rr. 37(3) and 39. In para 11 the procedure adopted for casting vote at the polling station has been given. It is stated that there were 5 polling officers. Third and fourth polling officers used to issue first and second ballot papers. Thereafter the elector used to mark them with the instrument provided to him in the voting compartment. The grievance of the petitioner is that two ballot papers should not have been given simultaneously to the elector for marking. The procedure, it is alleged in para 12, is violate of R. 39(2). In paras 14 and 16 it is pleaded that the procedure led to confusion in the minds of the electors on account of issuance of two ballot papers simultaneously and some of them marked the ballot papers wrongly. In paras Nos. 20 and 21 the allegations are that at a polling station at Kaljharni it was found that at the time of counting votes for both the Parliamentary and Assembly Constituencies ballot papers were folded together m one fold which was violative of the Rules. The detailed allegations in the said paras have been given above.

30. Rule 37(1), (2) and (3) and Rule 39(2) and (3) are reproduced hereunder:

"37. Safeguards against personation.--(1) Every elector about whose identity the presiding officer or the polling officer, as the case may be, is satisfied, shall allow his left forefinger to be inspected by the presiding officer or polling officer and an indelible ink mark to be put on it. (2) If any elector--

(a) refuses to allow his left forefinger to be inspected or marked in accordance with sub-r. (1) or has already such a mark on his left forefinger or does any act with a view to removing the ink mark, or (b) fails or refuses to produce his identity card as required by sub-r. (3) of R. 35, he shall not be supplied with any ballot paper or allowed to vote.

(3) Where a poll is taken simultaneously in a Parliamentary Constituency and an Assembly Constituency, an elector whose left forefinger has been marked with indelible ink or who has produced his identity card at one such election shall, notwithstanding anything contained in sub-rr. (1) and (2), be supplied with a ballot paper for the other election. "39. Maintenance of secrecy of voting by electors within polling station and voting procedure.-

.............."

(2) The elector on receiving the ballot paper shall forthwith-

(a) proceed to one of the voting compartments;

(b) there make a mark on the ballot paper with the instrument supplied for the purpose on or near the symbol of the candidate for whom he intends to vote;

(c) fold the ballot paper so as to conceal his vote;

(d) if required, show to the presiding officer the distinguishing mark on the ballot paper; (e) insert the folded ballot paper into the ballot box; and

(f) quit the polling station.

(3) Every elector shall vote without undue delay.

31. It is evident from sub-rr. (1) and (2) of R. 37 that the polling officer after satisfying the identity of an elector is required to mark his left forefinger with indelible ink. Thereafter the elector is supplied with a ballot paper. In case his left forefinger is already marked with indelible ink, he is not entitled to get a ballot paper. Sub-rule (3), however, provides that if the elections in Parliamentary Constituency and Assembly Constituency are being held simultaneously, in that case the elector is supplied with another ballot paper in spite of the fact that his left forefinger is marked with indelible ink. Sub-rule (2) of R. 39 provides that after obtaining the ballot paper the elector should proceed to one of the voting compartments mark the ballot paper with the instrument supplied for that purpose, and fold and insert the same into the ballot-box without undue delay. It is thus clear that the intention of the rule making authority is that two ballot papers should not be delivered to an elector together and he should not be allowed to enter the voting compartment to mark them together. The reason is that if an illiterate elector is allowed to take two ballot papers together for marking, the confusion is likely to arise in his mind, especially when the symbols of the candidates at both the ballot papers are the same. It is true that the colours of the ballot papers are different, however, it cannot be ruled out that the elector may forget which ballot paper relates to Parliamentary seat and which to Assembly seat and thus he may not be able to cast his vote properly. In the above view I am fortified by the instructions issued by the Chief Election Commissioner of India in Annexure XIX-B at page 227 in ''Handbook for Returning Officers" which reads as follows: ".......... Then your left forefinger will be marked with indelible ink. Thereafter you will be given two ballot papers, one in pink colour for Assembly election and the other in white colour for Parliamentary election........................................................................................................................ With the two ballot papers given to you by Polling Officers, proceed to the next table. A Polling Officer will take back both the ballot papers. He will fold the Assembly ballot paper first vertically and then horizontally. He will unfold it and give you the Assembly ballot paper together with an inked rubber stamp. Take the ballot paper and the rubber stamp and go inside the first voting compartment.

Only one member is to be elected and you should therefore mark only for one candidate.

Place the pink ballot paper on the table and mark with the rubber stamp clearly on the symbol of the candidate for whom you wish to vote.

Remember, you are now voting for the Assembly candidate.

After marking, fold the ballot paper in the same way it was previously folded and come out of the voting compartment.

Drop the folded ballot paper into the ballot box kept on the table and return the rubber stamp to the Polling Officer sitting there. He will now give you the Parliamentary ballot paper (white) after folding it and an inked rubber stamp. Proceed to the second voting compartment and mark the white ballot paper with the rubber stamp on the symbol of the candidate you have chosen. Remember you are now voting for the Lok Sabha candidate. Remember also all the "don'ts" mentioned above. Fold the ballot paper in the same way, come out of the voting compartment, drop the ballot paper into the same ballot box and return the rubber stamp to that Polling Officer. If you have any doubt or difficulty, do not hesitate to ask the Presiding Officer. He is there to help you."

The above book has been marked "For official use only". The purpose of the book has been explained by the Chief Election Commissioner of India in the foreword which is as follows: "......................... An attempt has been made in this Handbook to explain in adequate detail, the powers, duties and functions of the Returning Officers during the various stages from the date of notification of election to the filing of accounts of election expenses by contesting candidates. While every endeavour has been made to cover all salient points, this is no substitute for the relevant provisions of the R. P Act, 1951 and the rules made thereunder insofar as they relate to the functions of the ROs. They are advised to familiarize themselves with these provisions The last edition was brought out in 1982. Since then there is practically no change in the election law and procedure. However, the Commission had issued a number of directions/instructions to streamline polling and counting. These have been incorporated in this Handbook. Moreover, in the light of the experience gained during the elections held during 1982 and 1983, certain additions and alterations have also been made. Further, the opportunity has been seized to re-arrange the Handbook into a larger number of Chapters, each dealing with a specific item. It is hoped that this will serve as a vademecum to the Returning Officers in the discharge of their duties."

32. It is true that it consists of instructions issued by the Chief Election Commissioner of India from time to time and these instructions are no substitute for the 1951 Act or the Rules and are only for the guidance of the officers on election duty. In the circumstances the breach of the instructions do not give a cause of action to an aggrieved party and the Courts are not bound to take into consideration the said instructions while deciding the election petition. But these instructions do support the contention of Mr. Khoji. After taking into consideration the aforesaid facts, I am of the view that paragraphs 11, 12, 20 and 21 of the petition disclose a cause of action.

33. In order to determine as to whether or not paras 14 and 16 of the petition disclose cause of action, it is necessary to read the said paras which are as follows: "14.A That the above mentioned practice led to confusion in the minds of the electors. 'When an elector was issued both the ballot papers for the Assembly and Parliamentary Constituency he used to get confused. The colour of the Parliamentary ballot papers and that of the Assembly was practically the same. In a large number of cases, the elector who wanted to vote in favour of the petitioner (the symbol of the petitioner being Lion) marked the Parliamentary ballot paper at the symbol of the Lion (although in fact his intention was to vote for the petitioner). This is the reason why Shri Chet Ram got exceptionally large number of votes in Pakka Kalan Assembly segment of the Bhatinda (SC) Parliamentary Constituency. In Pakka Kaian Assembly segment Shri Chet Ram got 6836 votes whereas from the remaining eight Assembly segments of the Bhatinda (SC) Parliamentary Constituency Shri Chet Ram could not get more than 4418 votes in all.A Bon the average Shri Chet Ram got 515 votes from each of the remaining eight Assembly segments of the Bhatinda (SC) Parliamentary Constituency. The maximum votes polled by Shri Chet Ram in these eight Assembly segments are 862 in the Bhatinda Assembly segment. Even if Shri Chet Ram is given the credit of 862 votes, the remaining 6836-862 = 5974 votes are the petitioner's votes where the intention of the elector was to vote in favour of the petitioner. As the election has been held in violation of the provisions of the Representation of the People Act 1951 and the Conduct of Election Rules, 1961. in particular, R. 39 thereof and the result of the election has been materially affected so far as it concerns the returned candidates as by the addition of 5974 votes to the I6602 votes of the petitioner, the petitioner gets more valid votes than the votes polled by the returned candidates, i. e., the respondent No. l.B C Thus under S. 100(1)(d)(iv) of the Representation of the People Act, 1951, the election of respondent No. 1 is liable to be declared void.C "16.A That Shri Teja Singh Dardi was a candidate of Shiromani Akali Dal for Bhatinda (SC) Parliamentary Constituency. His symbol was "Scales". That the segment-wise breakup of the votes polled by Shri Teja Singh Dardi is as follows:-- 109 Talwandi Sabo 33939

110 Pakka Kalan 20221

111 Bhatinda 24905

112 Nathana SC 34456

113 Rampura Phool 26806

114 Joga 29711

115 Mansa 33434

116 Budladha 26258

117 Sardulgarh 30396

Shri Teja Singh Dardi got the least number of votes in Pakka Kalan Assembly of the Bhatinda 1 SC) Parliamentary Constituency. The reason was that when an elector went to the compartment with both the Parliament and Assembly ballot papers, he marked one ballot paper on the symbol of 'Lion' he marked the remaining ballot paper on the symbol of the 'Scales'. After marking Parliamentary ballot paper on the symbol of Lion (in favour of Chet Ram) the electors marked the Assembly ballot paper on the symbol of 'Scales' in favour of Sujan Singh, although the intention of the voter was to mark the Assembly ballot paper in favour of the petitioner and mark the Parliamentary ballot paper in favour of S. Teja Singh Dardi.A Due to this confusion not less than four thousand votes, where the intention of the elector was to vote in favour of the petitioner have gone to Shri Sujan Singh respondent. These four thousand votes are liable to be deducted from the votes of Shri Sujan Singh and are liable to be added to the votes of the petitioner. The valid votes polled by Shri Sujan Singh respondent are reduced to 17017-4000 = 13017. By giving the credit of four thousand votes to the petitioner, her votes come to 16602 + 4000 = 20602 votes.B C The election of respondent No. 1 Shri Sujan Singh is liable to be set aside and the petitioner is liable to be declared elected.C" (Note: The letters 'A', 'B', 'C' in the above paras are marked by me.)

In portions marked A to A in both the paras the petitioner has mentioned that by handing over both the ballot papers together to the electors a confusion arose in their mind by which the result of the election has been materially affected. In portions marked B to B the petitioner on the basis of conjectures pleaded that she was entitled to the addition of certain number of vote; to the votes secured by her and by doing so, she would have secured more than those of respondent No. 1 In portion marked C to C in para I4 she pleaded that the election of respondent No. 1 was liable to be declared void under S. 100(1)(d)(iv) of the 1951 Act. In portion marked C to C in para 16 she alleges that the election of respondent No. 1 was liable to be set aside and she was entitled to be declared elected. The portion marked B to B m both the paras is based on surmises and conjectures' and therefore does not disclose any triable cause of action. That portion is thus liable to be struck off. The remaining portions of the paras, i.e.. A to A and C to C disclose a triable cause of action. However: the petitioner is liable to give the particulars of the persons who were misled by the said procedure.

34. Mr. Khoji has argued that it is not necessary to give the particulars of the electors who became confused on having received both the ballot papers together as the illegality committed in this case is per se enough to set aside the election. In support of his contention he relies on A. C. Jose v. Sivan Pillai, AIR 1984 SC 921.

35. I do not agree with the contention. As already observed that in case allegation in the election petition is of non-compliance with the provisions of the 1951 Act or the Rules an election cannot be set aside under S. 100 unless it is further proved that the result of the election had been materially affected by non-compliance with the provisions. The facts of A. C. Jose's case (supra) are distinguishable. In that case in pursuance of the direction of the Election Commission of India out of 30450 votes, 11268 votes were cast manually, according to the conventional method provided in the Rules and 19182 votes by means of electronic machines. It was held by the Supreme Court that it was not open to the Commission to override the Act or the Rules or pass orders in direct disobedience to the mandate contained in the Act or the Rules. The word 'ballot' in its strict sense would not include voting by the use of voting machines. The act of framing the Rules completely excluded the mechanical process which if resorted to, would defeat in a large measure the mandatory requirements of the Rules. Consequently the order of the Commission directing casting of ballot by electronic machines was held to be without jurisdiction. I do not think the ratio in the above case is applicable to the facts of the present case.

36. Paragraphs Nos. 8, 9 and 10 refer to the infringement of S. 26. In paras 8 to 10 it is pleaded that the polling in both the Constituencies, i.e., Parliamentary Constituency and the Assembly Constituency was held on 25th Sept. 1985 at the same polling stations. The District Election Officers against the provisions of S. 26 of the 1951 Act appointed the same Presiding Officers and Polling Officers at all the polling stations.

37. Section 26 does not forbid the appointment of the same officers as presiding and polling officers for the election to the Assembly and Parliamentary Constituencies. There is no other provision in the Act that both the elections cannot be held simultaneously. On the other hand, sub-r. (3) of R. 37 goes to show that the elections to both the Constituencies can be held simultaneously. Consequently I am of the view that paras 8, 9 and 10 do not disclose any triable case of action.

38. In para 13 it is alleged by the petitioner that the issuing of second ballot paper before the first ballot paper was put into the ballot box tantamounts to multiple voting which is not permissible under the Rules. No rule has been brought to my notice by the counsel for the petitioner according to which it amounts to multiple voting. Consequently I am of the view that the above para does not disclose any triable cause of action.

39. Paras Nos. 15, 17 and 19 contain general allegations. In para No. 15 it is stated that the petitioner is unable to give the particulars of 6836 votes as she had no counting and election agent in the Parliamentary election. In para No. 17 the petitioner alleges that in Pakka Kalan (SC) Assembly Constituency 440" ballot papers were rejected whereas in Bhatinda (SC) Parliamentary Constituency 4114 ballot papers were rejected. Out of them nearly 4000 ballot papers were marked at two places, i.e., on the symbols of "scales" and "lion" She is entitled to the credit for 2000 votes out of them. In para No. 19 it is stated that when the elector received the ballot papers some impression of the wet thumb appeared on the ballot papers which were rejected on the ground that the identity of the elector had been disclosed. Those ballot papers should be counted in favour of the petitioner. No rule has been shown under which m these circumstances she is entitled to the counting of the said ballot papers. I am, therefore, of the view that the aforesaid paragraphs, i.e., paras 15, 17 and 19 do not disclose any triable cause of action.

40. In paragraph No. 22 of the petition the allegation is that Shri Parkash Singh Badal addressed a meeting on 23rd Sept. 1985 in support of the returned candidate and said that the petitioner was the widow of Shri Beant Singh, a murderer of Smt. Indira Gandhi and whosoever would support her would be arrested by the police. The para has been reproduced above while deciding Issue No. 1. Mr. Tulsi contends that the allegations do not fall within the definition of "undue influence". In fact Mr. Badal announced a policy of Akali Dal that strong action would be taken against those who indulged in terrorism in the State in case his party came into power. He further contends that whatever is alleged to have been said by Mr. Badal in the meeting was protected under clause (b) of the proviso to sub-section (2) of S. 123. In support of his contention he places reliance on Bachan Singh v. Prithvi Singh, AIR 1975 SC 926, and Nem Chandra Jain v. Giani Zail Singh, (1984) 1 SCC 390: (AIR 1984 SC 309). 4l. I am not impressed with the submission of the learned counsel. Section 123 reads as follows:

"123. The following shall be deemed to be corrupt practices for the purposes of this Act:

(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right: Provided that--

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community,; or .......................................................................................................................................

(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause."

42. A reading of the para shows that the allegations prima facie fall within the purview of S. 123{2) and these are not protected by clause (b) of the proviso to the said sub-section. The argument of Mr. Tulsi is far-fetched and it cannot be inferred that Shri Badal by making the aforesaid announcement deprecated the acts of terrorism and referred to the policy decision of Akali party that when it would come into power, it would deal with terrorism with strong hand. The petitioner is also stated to be present at that time. In Bachan Singh's case (AIR 1975 SC 926) (supra), it was observed that the prefix "undue" indicates that there must be some abuse. of influence. "Undue influence" is used in constituting to "proper influence". In Nem Chandra Jain's case (AIR 1984 SC 309) (supra), Chandrachud, C. J., speaking for the Court, observed that the act alleged as constituting undue influence must be in the nature of a pressure or tyranny on the mind of the candidate or the voter. It was not possible to enumerate exhaustively the diverse categories of acts which fall within the definition of undue influence. The observations in both the cases, in my view, do not help the returned candidate; rather they help the petitioner. After taking into consideration of the above circumstances, I am of the view that the para contains material facts which disclose a triable cause of action.

43. It is stated in para 23 of the petition that Sujan Singh respondent was registered as an elector in the Haryana State and was elected as a member of the Haryana Legislative Assembly from Jundla Constituency in the elections held in 1982. He in violation of S. 17 of the 1950 Act, which provides that no person shall be entitled to be registered in the electoral roll of more than one Constituency, got himself registered as an elector in the Punjab in Village Kot Bhai, Tehasil Mukhtsar, District Faridkot. He, it is alleged, was not entitled to be registered as an elector in the Punjab as at all material times, i.e., at the time of filing of nomination papers, at the time of scrutiny, at the time of poll and at the time of declaration of result, His enrolment as an elector and a member of Haryana Legislative Assembly continued. His election is, therefore, liable to be set aside on the ground that he was not a validly registered voter in the State of Punjab.

44. Mr. Tulsi, learned counsel for the returned candidate, has argued that the petitioner cannot challenge the correctness to electoral roll in a petition under S. 100 of the 1951 Act. He further argues that the 1950 Act is a Code in itself and whatever objections one has got against the registration of a person as an elector in any Constituency, he can raise the same according to the procedure prescribed in the I950 Act and not otherwise. In support of his contention he places reliance on Kabul Singh v. Kundan Singh, AIR 1970 SC 340, Hari Prasad Mulshankar Trivedi v. V. B. Raju, AIR 1973 SC 2602, Nripendra Bahadur Singh v. Jai Ram Verma, AIR 1977 SC 1992 and Sumer Chand v. Shiv Parshad, Election Petn. No. 17 of 1982, decided by K. S. Tiwana, J. on 23rd May, 1983.*

45. I have given my thoughtful consideration to the argument and find force therein. Section 16 of the 1950 Act relates to the disqualifications for registration in an electoral roll. It reads as follows "16 Disqualification for registration an electoral roll-(1) A person shall be disqualified for registration in an electoral roll of he

(a) is not a citizen of India; or

(b) is 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 which it is included:

Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause t c I of sub-s. (1) shall forthwith be reinstated in that roll if such disqualification is. during the period such roll is in force, removed under any law authorising such removal."

46. It is evident from a reading of subs. (1) that it prescribes three disqualifications which debar a person from being registered as an elector. It does not contain any disqualification to the effect that if a person is registered as an elector in one Constituency he cannot be registered as such in another Constituency. Under sub-s. (2) the name of an elector an be struck off from the electoral rolls in case he suffers from disqualification (s) mentioned in sub-section (i) after he has beer registered as an elector.

47. Section 21 relates to preparation and revision of electoral rolls, S. 22 to correction of entries in electoral rolls and Section 23 to inclusion of names in electoral roll. Section 21 prescribes the procedure for preparing the electoral rolls. Section 21 for correction of entry in them. Powers have been conferred on Electoral Registration Officer to amend or delete an entry from the electoral rolls on an up application made to him or on his 'own motion under the said section. Section 23 prescribes the procedure for inclusion of a name in electoral rolls.

48. Section 30 relates to the jurisdiction of the civil Court which reads as follows:

"30. Jurisdiction of civil Courts barred. No civil Court shall have jurisdiction-

(a) to entertain or adjudicate upon any question whether any person is or is not entitled to be registered in an electoral roll for a constituency; or

(b) 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 this Act for the revision of any such roll."

49. It is clear from Ss. 21, 22 and 23 that a procedure has been prescribed in the 1950 Act for deletion, amendment and addition of an entry m the electoral rolls and that can be done by the Prescribed Authority under that Act. Section 30 excludes the jurisdiction of the civil Court to adjudicate upon the aforesaid questions.

50. In the above view I am fortified by the observations of the Supreme Court in thc cases referred to by Mr. Tulsi. In Kabul Singh's case, (AIR 1970 SC 340) (supra) the question arose as to whether the vote of Tarsem Singh was invalid. His name was found in the electoral rolls in the Constituency. The argument was that as he had taken up Government service subsequent to the inclusion of hrs name in the electoral rolls, he became disqualified to be a member of any local Board and, therefore, he was not entitled to vote fur electing a member of the Punjab Legislative Council from Local Authorities Constituency. The contention was repelled. Hegde, J., speaking fur the Court after noting S. 16 observed thus "It is nut 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 pure y a statutory right, the validity of any vote has to be examined on the basis of the provisions of the Act. Vide cannot travel outside these provisions to find out whether a particular vote was a valid vote or not. In view of S. 30 of the 1950 Act, Civil Courts have no jurisdiction to entertain or adjudicate upon any question whether any person is or is nut entitled to register himself electoral roll in a constituency or to question the illegality of the action taken by or under the authority o the electoral registration officer or an decision given by an authority appointed under that Act for the reversion o any such roll. Part III of the 1950 Act deals with the preparation of rolls in a constituency. The provisions contained therein person be the qualifications for being registered as a voter S. 19, disqualifications which disentitle a person from being registered as a voter (S. 16), reversion 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 Section 24. Sections 14 to 24 of the 1950 Act are intergrated provisions. They form a complete Code themselves in the matter of preparation and maintenance of electoral rolls. It is clear from those revisions that the entries found in the electoral roll are final and they are not open to challenge either before a Civil Court or before a Tribunal we considers the validity of any election. In B. M. Ramaswamy v. B. M. Krishnamurthy, AIR 1963 SC 458, this Court came to the conclusion that the finality of the electoral roll Cannot be challenged in a proceeding challenging the validity of the election."

51. Similar view w as taken in Hari Prasad Mulshankar Trivedi's case, (AIR 1973 SC; 2602) (supra). The contention was that respondents Nus. 4 and 5 in the election petition were not ordinarily resident in any of the Parliamentary Constituency in the State of Gujarat and as they had not fulfilled the conditions for being entered in the electoral rolls of any Parliamentary Constituency in Gujarat. they were suit electors within the meaning of S. 2(1)(e) of the 1951 Act and were ineligible to stand as candidates in the electron. Mathew, J. speaking for the Bench. observed thus "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. Parliament 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 whether 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 of the remedy for enforcing it. We think that the 1950 Act provides a complete Code so far as the preparation and maintenance of electoral rolls are concerned. The Act enacts a complete machinary to enquire into claims and objections as voter and for appeals from the regards registration as voter and for appeals from the decision of the registering officer (see Ss. 21 to 24 of the 1950 Act both inclusive). Elaborate rules have also been made or enquiry into claims to be registered as voters and for considering and disposing of objections thereto (See Rr. 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 person whose name is actually entered in the electoral roll for the time being and who is not subject to any of the disqualifications in S. 16 would be an elector." The above two cases were followed in Nripendra Bahadur Singh's case, (AIR 1977 SC 1992) (supra). The facts in that case were that 17 persons whose names were recorded as electors in the electoral rolls grounded on the requisite qualifications that 13 of them were Presidents of their respective Cooperative Societies and the remaining 4 were co-opted members of Kshettra Samitis. But since they had ceased to be the Presidents or co-opted members on the new office bearers being subsequently elected in their places long before the notification of the election, they, it was alleged, were wrongly continued in their electoral rolls and as such were not entitled to vote, notwithstanding the presence of their names in the electoral rolls. Their participation in the election, it was further alleged, had materially affected the result. It was observed therein as follows: "It is not disputed that the persons whose names were recorded in the electoral roll and participated in the voting were not disqualified under S. 16 of the 1950 Act. That being the position it would have been wrong on the part of the Presiding Officer not to allow the voters whose names were recover in the electoral roll of the constituency to participate in the voting, even though their names could have been earlier at the appropriate time legitimately excluded the electoral roll. These voters are electors within the meaning of S. 2(1)(e) of the 1951 Act and were entitled to vote under Section 62 of the 1951 Act. .................................................................................................................................

.........in a catena of cases this Court has consistently taken the view that the finality of the electoral roll cannot be challenged in an election petition even if certain irregularities had taken place in the preparation of the electoral roll or if subsequent disqualification had taken place and the electoral roll had on that score not been corrected before the last hour of making nominations. After that dead-line the electoral roll of a constituency cannot be interfered with and no one can go behind the entries except for the purpose of considering disqualification under S. 16 of the 1950 Act." In Shri Sumar Chand's case, (1983 Recent Law 13) (Punj & Har) (supra) it was held by K. S. Tiwana, J., that the electoral rolls become final, if the mistakes in them are not rectified. These cannot be questioned at a later stage by the unsuccessful candidates or anybody aspousing his cause by challenging the election of the returned candidate by way of election petition. I am in respectful agreement with the above observations.

52. Mr. Khoji has argued that in the present case there is violation of S. 18 of 1950 Act and in view of that section he could not be registered as an elector in the Punjab State when he was registered as such in the Haryana State. That matter, he contends, can be gone into by the Court in an election petition. In support of his contention he places reliance on Sher Singh Budh Singh v. State of Punjab, AIR 1965 Punj 361, Chirala Goverdhanareddy v. Election Tribunal, Baptla, AIR 1970 Andh Pra 56 (FB) and Narendra Madiyalapa Kheni v. Manikrao Patil, AIR 1977 SC 2171.

53. Section 1,8 of the Act provides that no person shall be entitled to be registered in the electoral roll for more than one constituency. It is true that the section forbids a person to get himself registered in the electoral roll as a voter in two constituencies, but if he gets himself registered in two constituencies, he does not suffer from any of the disqualifications mentioned in S. 16. If an objection is raised regarding his registration in a constituency by any person at the relevant time before an electoral registration officer, the same can be rectified by him, but if it is not done, it cannot be made a ground to challenge an election in an election petition, as the jurisdiction of the Court is barred in this regard under S. 30 of the 1950 Act. The matter falls within the jurisdiction of the electoral registration officer under the said Act.

54. The cases referred to by the learned counsel are not applicable to the facts of the present case. In Sher Singh's case, (AIR 196'5 Punj 361) (supra) the electoral roll on the basis of which Sarpanch was elected was challenged through a writ petition on the ground that supplementary electoral roll was illegal. The learned Judge observed that if the electoral roll was illegal. no election on its basis could proceed or be allowed to stand. It may, however, be mentioned that the learned Judge noticed the observations of Mysore High Court in Javaregowda v: Lakkigowda, AIR 1958 Mys 73, wherein it was held that the Election Tribunal had no jurisdiction to go behind the electoral roll and decide whether the particular voter had been validly enrolled or not and agreed with them. That goes to show that the learned Judge decided the matter taking into consideration the facts and circumstances of the case. Mr. Khoji cannot get any assistance from the observations therein. In Chirala Goverdhanareddy's case, (AIR 1970 Andh Pra 56) (FB) (supra) the decision of an Election Tribunal was challenged through a writ petition. The dispute in that case was regarding the age of a candidate. It was observed that a mere entry in the electoral roll was not final or conclusive in regard to the age of the candidate and it was open to the Election Tribunal to enquire in an election petition into the age of the candidate and to find out whether he was duly qualified to seek the election,. This case also is distinguishable on facts.

55. In Narendra Madiyalapa Kheni's case, (AIR 1977 SC 2171) (supra) the names of some electors were included in the electoral roll after the last date of filing nomination papers in that constituency. It was observed by Krishna Aiyer, J., speaking for the Court, that there was a blanket ban in S. 23(3) of the 1950 Act on any amendment, transposition or deletion of any entry or issuance of any direction for inclusion of the name in the electoral roll after the last date for making nominations for election in that constituency. This prohibition was based on public policy and served a public purpose. Any violation of such a mandatory provision conceived to pre-empt scrambles to thrust into the rolls, after the appointed time, fancied voters by anxious candidates or parties spells invalidity and if in flagrant violation of S. 23(3), names had been included in the electoral roll, the bonus of such illegitimate votes shall not. accrue, since the vice or voidance must attach to such names. Such void votes cannot help a candidate win the contest' In our electoral scheme as unfolded in the 1951 Act, every elector ordinarily can be a candidate. Therefore, his name must be included in the list on or before the date fixed for nomination. Otherwise he loses his valuable right to run for the elective office. It is thus vital that the electoral registration officer should bring in the names of all the electors into the electoral roll before the date and hour fixed for presenting the nomination paper. Mr. Khoji has argued that the Court should follow the observations in this case in preference to the observations in Nipendra Bahadur Singh's case, (AIR 1977 SC 1992) (supra). I regret my inability to accept it. The facts of the above case are distinguishable and, therefore, the observations therein are not applicable to this case. Moreover, the facts in Nipendra Bahadur Singh's case (supra) are similar to those of the present case. It is also relevant to point out that both the cases were decided by the same Bench on the same date. It is well settled that in such a situation it is in the discretion of the Court to follow either of the decisions. I prefer to follow the observations in Nipendra Bahadur Singh's case (supra).

56. After taking into consideration all the abovesaid circumstances I am of the view that para No. 23 does not disclose triable cause of action and, therefore, is liable to be struck off.

57. The allegations in para 24 of the petition in short have already been given above. It is not necessary to reproduce them as Mr. Khoji has fairly conceded ;that the plea taken in the para can be gone into by the Speaker of the Punjab Legislative Assembly and cannot be the subject-matter of an election petition. Consequently he has no objection if the para is ordered to be deleted. Consequently the said para is also liable to be struck off.

58. Before parting with the judgment it may be mentioned that Mr. Tulsi also argued that on the basis of the allegations in the petition, the petitioner is not entitled to inspection of the ballot papers. He made reference to some precedents of this Court as well as of the Supreme Court. I, however, do not propose to deal with the matter as the petitioner has not yet made any request for inspection of the ballot papers. The matter shall be dealt with when she makes as request in that regard.

59. For the aforesaid reasons I partly accept the objections and hold that the affidavit filed by the petitioner along with the petition was in due form, that the registry could not ask her to file a fresh affidavit and consequently the petition is not liable to be dismissed under S. 83 of the 1951 Act. I further hold that paras 5, 6, 7, 18, 8, 9, 10, 13, 14 (portion 'B to B'), 16 (portion 'B to B'), 15, 17, 19, 23 and 24 do not disclose triable cause of action and are liable to be struck off. However paras 1 l, 12, 14 (portions A to A and ~ to C), 16 (portions A to A and C to C), 20, 21, and 22 disclose triable cause of action.

60. The petitioner is directed to file the amended petition on or before 25th June, 1986 with copy to Mr. Tulsi who shall file written statement within ten days thereafter. The petitioner shall file replication on or before 11th July, 1986. To come up for issues on 11th July, 1986. The petitioner shall pay Rs. 1000/- as costs to the contesting respondent.

61. Petition partly allowed.