State of Karnataka & Ors. v. G. Nagappa & Ors.

Judgment

The Judgment of the Court was delivered by BHAGWA n, J .-There is a town called Gangawati in the State of Karnataka. It had a Town Municipal Council conscituted under the Karnataka Municipalities Act, 1964. The term of office of the Municipal Councillors elected at the last General Elections expired by efilux of time in 1962, but instead of holding a General Electia.1 to constitute a new Town Municipal Council, the State Government appointed an Administrator to exercise the powers and perform and discharge the functions a;id duties of the Town Municipal Council and also constituted an Advisory Council to advise and assist the Administrator. The appointment of the Administrator and the constitution of the Advisory Council were challenged by one of the residents of Gangawati in the High Court of Karna.tak:a by Writ Petition No. 2405 of 1972.

The writ petition was, however, settled as the State Government gave an undertaking that it would take the necessary steps for holding a General Election within a reasonable time. This happened on 6th February, 1974. The State Government thereafter, in llCCOrdance with the undertaking giveu by it, appointed the Returning Officer on 25th Febrnary, 1974 and it looked as if the General Elections was at last going to be held. But this hope was belied. Before the Returning Officer could issue a notice fixing the calendar of events for the election, the State Government rescinded the Notification which had been issued by it earlier u!nder s.13 of the Act deteniiin1ng inter alia the territorial divisions into which the Municipality shall be divided. The result was that no further steps could be taken by the Returning Officer in the matter of holding the election.

Angered and frustrated by this second attempt on the part of the State Government to baulk the holding of the election, the same individual, who had filed the earlier writ petition, preferred another writ petition, nameLv. Writ Petition No .. 2715 of 1974. for a mandamus to the State Government to hold the election. The High Court made an order on this writ petition on 7th August, 197 4 directing the State Government to hold the election within four months. This time was later extended to 8th March, 1975. . Pursuant to the direction of the High Court, the State Government issued a Notification dated 3rd December, 1974 under s. 13 of the Act determining the territorial divisions into which the Gangawati Municipality shalt be divided for the purpose of holding the election and allotting number of seats to each territorial division.

The Gangawati Municipality was divided into six territorial divisions and each territoriar division was defined and demarcated by reference to census block numbers, wards and also boundaries. The Returning Officer thereafter on 7th December, 1974 issued a notice fixing the calendar of events for holding the election. The Tehsildar, who was the designated officer under s. 14, sub-s. (2), in the meanwhile, prepared the list of voters for each division from the Mysore Legislative Assembly Electoral Roll (hereinafter referred to as the Electoral Roll) by including in the list parts of the Electoral Roll referable to the census block numbers comprised within the division. The list of voters for each division so prepared was authenticated by the designated officer and kept open for inspection in the office of the Municipal Council. A (i 0 SUPREME.COURT REPORTS (1976]

1 S.C.R~ large number of nominations were filed on or before the last date fixed for it in the calendar of events and after scrutiny and withdrawal, a list of the contesting candidates was published by the Returning Officer on 21st December, 1974. The only step which remained to be taken to complete the process of election was the po]] which was fixed on 10th January, 1975. However, on 21st December, 1974, when the question of finalisation of polling stations was taken up by the Returning Officer, the Secretary of the Congress Party raised an objectio•a that the divisionwise lists. of voters prepared and authenticated by the designated officer were defective "inasmuch as voters who reside in one division arc being made to vote in a different division" and that these lists of voters should, therefore, be rectified before fixing up the polling stations. The Re.- turning Officer wasidered his objection and by an order made on tM same date rejected it.

This Order is very material and we will, there-· fore. reproduce1 it in full. It reads inter alta as follows : "It is see!a from the list maintained that the population in the parts of voters list tallies with the proposal made to Government for the. delimitation of the constituencies. Further it is seen that the various parts included in the divisionwise voters list cdaform to the census block numbers which are mentioned in the notification published in regard to the declaration of delimitation of territorial divisions. It also fits into the ward-wise description of constituencies as declared by Government. However, it is too fate in the day to prefer objections about voters list. The voters list was open for inspectio•a all along. Many interested parties have obtained copies of the same. Nominations have been filed by respective parties on the basis of the same voters list and the scrutiny· has been completed and valid nominations have been declared and today at 3.00 p.m.

Last date for withdrawal is also over and the list of polling stations is finalised. At this juncture, it is regretted to declare that parties cannot be allowed to go back to the period prior to scrutiny of the nomination papers, especially so when there was not O'ae word of objection or protest over the voters list at the appropriate time. As per section 23 (3) of the Representation of the People Act, 1950 no amendment or deletion of any entry ra the electoral roll should be made or given effect 'after the last date for making nominations in. that constituency or division.

Any change in the parts of the Division of Voters will amount to an amendment of electoral roll of that .division." lt: appears that three of the contesting candidates and a member of the Legislative Assembly belonging to the Congress Party were dissatisfied with t~is .order a~d '.hey, therefore, made an application to the Deputy Comnusszoner pomtmg out what they thought were defects ·in the <livision·wise lillts of voters: The Deputy Commissioner instructed the ' I- I I KAR'.NATAKA v. G. NAGAPPA (Bhagwati, J.) Returning Officer to make physical verification of these defects and the Returning Officer accordi•,,gly went to the respective pla~es where the mistakes were alleged to have occurred and after verification, made a report dated 27th December, 1974. In this report, the Returning Officer stated that :

"It was found during my random inspection of the various houses on the borders of the different divisions that some voters residing adjacent to one division have been i•acluded in another adjoining division and the voters list in respect of each division has been formed accordingly." The Returning Officer observed that as a result of this physical verification it was found that '"tn.r number of voters in the respective divisio•as would undergo considerable change" and gave figures showing that the change in the number of voters in each division would be in the neighbourhood of twenty-five per cent. Basing itself on this report, the State Government, by an order dated 30th December, 1974, cancelled the calendar of eve•ats published by the Returning Ofliccr and directed him to issue fresh calendar of events "after getting the voters lists completed strictly as per the division notified."

Though this Order did not refer to the provision of law under which it was purported lo be made, the State Government claimed that the source of its power to make this Order lay in rule 75 of the Mysore Municipalities (Election of Councillors) Rules, 1965 (herei,1after referred to as the Rules) made under s.38 of the Act. The petitioners. who arc residents of Gangawati, finding that the State Governmeat had again tried to fish out some excuse for putting off the general election, preferred the pre,ent writ petition questioning the validity of this Order made by the State Govemment.

The High Court, by a judgment and order dated 6th February, 1975 held that the State Government had no power under rule 75 to cal)cel the calendar,of events validly fixed by the Returning Officer and set at naught the election process which had already commenced and in this view, quashed and set aside the Order of the State Government and directed the Returaing Officer to hold the elections "from the Stage at which it was interrupted by the impugned Government Order after fixing convenient dates for the remaining events so that the election may be completed before 8th March, 1975." The State Government challenges the correctness of this view in the present appeal brought with special leave obtained from this Court. The hearing of this appeal concluded on 2nd May, 1975 which was the last working day for the Court before the commencement of the summer vacation.

Since the appeal involves the question as to the holding of the election and delay i·a the pronouncement of the order might defeat the object of filing the appeal, we pronounced our order immediately after the conclusion of the hearing, di,missing the appeal with costs and directing the Returning Officer to complete the election before 10th June, 1975. We now proceed to give our reasons. The question which arises for determioation in the appeal is as to whether the State Government had power under rule 75 to make the impugned order cancelling the calendar of even's and thereby in effect setting at naught the entire election process which had proceeded upto the stage of poll. Rule 75, which is the last amongst the Rules. is in the following terms : 62 51.i'PJ\llMB 001.i'RT REPORTS [1976] 1 s.c.11.

"Notwithstanding anything contained in these rules, the State Government and subject to the general or special orders of the Government, the Commissioner shall have the power of superintendence, direction and control of the conduct of elections under these rules, and may make such orders as it or he deems fit for ensuring that the elections are held in accordance with the provisions of the Act." It is not necessary for the purpose of the present appeal to embark on a discussion on the wider question as to what are the different cir- ·cumstances in which the power conferred under rule 75 can be exercised by the State Government and what kind of order can be made by the State Government in exercise of such power. It would indeed be inexpedient and unwise to draw the precise lines within which the power under rule 7 5 should be exercisable, for there may be infinite valid circumstances which may call for exercise of such power.

What we need consider here is only the limited question whether on the facts and circumstances of the present case, the Sta•e Government had power under rule 75 should be exercisable, for there may be infinite calendar of events fixed by the Returning Officer. If such power could not be found in rule 75, it was common ground that there was no other provision in the Act or the Rules which would justify the making of the impugned order ane it would .plainly be invalid.

Now, the only justification pleaded by the State Government in support of the exercise of the power under rule 75 was that the divisionwise lists of voters prepared and authenticated by the designated officer were defective and if the election were held on the basis of such defective lists of voters, it would not be in accordance with the provisions of the Act and hence the impugned order had to be made by the State Government for ensuring that the election was held in accordance with the provisions of the Act as contemplated under rule 75. This ' justification, plausible though it may seem, is, in our opinion, without merit. To test its validity it is necessary to understand the nature of the defect from which according to the finding of the Returning Officer, the divisional lists of voters suffered and see whether that defect brings the case within the scope and ambit of rule 75. We may first refer to a few relevant sections of the Act. Sec. 13 prov!des that for the purposes of election. of councillors at a general el"':tion., the State .

Government shall, after previous publication, by notification, determme (a) the number of territorial divisions into which the municipality shall be divided, (b) the extent of each territorial division, ( c) the number of seats allotted to each territorial division which shall be not less than three and not more than five and ( d) the number of seats, if any. reserved for the Sclieduled Cast;s and for women in ~ach t<;rritorial division. Jt was in obedience to the requirement of this section that the State Government issued the notification dated 23rd December, 1974 de•erminiiw; inter alia the divisions in whic~ the Ganga~ati Municipality shall be divided for the purpose of holding the election. The extent of each division was defined and demarcated in the Notification with great precision by reference to the I r KARNATAKA v. G. NAGAPPA (Bltillfwali, I.) census block numbers which had been given to the dillere~ ~ the time of the census.

These areas were clearly and definitely identifiable by their census block numbers, parucular~y as the extent .of each ce:nsus block number was well defined and it was known . ~ definiteness and certitude as to which. houses were compnsed ~ it. There was therefore, plainly and manifestly no doubt or uncertain~ about the 'extent of each of the division into which the Ganaawati Municipality was divided by the Notification. Section 14 is the next important section which deala with the subject of list of voters. It has four sul>-sections of which the first three are material. They are as follows : " (1) The electoral roll of the Mysore Legislative Assembly for the time being in force for such part of the constituency of the Assembly as is included in a di vision of a municipality shall, for the purpose of this Act, be deemed to be the list of voters for such division. (2)

The officer designated by the Deputy Commissioner in this behalf in respect of a municipality shall maintain a list of voters for each division of such municipality ...... . (3) Every person whose name is in the JiSt of voters referred to in sub-section (1) shall unless disqualified under any law for the time being in force, be qualified to vote, at the election of a member for the division to which such list pertains." What shall be the qualification of a person to stand as a candidate at an election is laid down ins. 15, sul>-s. (1). That sul>-section provides that every person whose name is in tl!e list of voters for any of the divisions of the municipality shall, unless disqualified under this Act or any other law for the time being in force, be qualified to be elected at the election for that division or any other division of the municipality alld every person whose name is not in such list shall no• be qualified to be elected, at the election for any division of the municipality.

Then follows sub-s. (2) which is of some importance. We quote it : "Subject to any disqualification incurred by a person the list of voters shall be conclusive evidence for the purpose of determining under this section whether the person is qualified or is not qualified to vote or is qualified or is not qualified to be elected as the case may be, at an election." Section 38 confers power on the State Government to make rules to provide for or regulate all or any of the matters set out in the section for the purpose of holding election of councillors under the Act. It was in pursuance of this section that the Rules were made by the Stale Government. It will be seen on a plain reading of sul>-s. (1) of s. 14 that the electoral roll for the territorial area comprised in a division is to be deemed to be the list of voters for such division. The designated officer is merely to perform the operation of scissors and paste--cut (l976]

1 S.C.R. ohr those portions of the electoral roll which relate to the territ'orial area included in the division and paste them together so as to form the list of voters for the division. There is no separate qualification laid down in the Act for being placed in the list of voters for a division as was the case in Chief Commissioner, Ajmer v. Radhey Shyam Dani.(1) In that case, s. 30, sub-s. (2) of Ajmer-Merwara Municipalities Regulation, 1925 laid down two conditions which must be fulfilled in order to entitle a person to be enrolled as an electoral of the Ajmer Municipalities, namely, (I) that he shquld be entitled under the Representation of the People Act, 1950 to be registered in the electoral roll for a Parliamentary Constituency, if the constituency had been co-extensive with the Municipality, and (2) that his name should be registered in the electoral roll for a Parliamentary Constituency comprised in the Municipality.

It was for this reason that it was held by ,this Court that it was not enough that the name of a person should be registered in the electoral roll of Parliamentary Constituency. That did not entitle him straightaway to be included in the electoral roll of the Municipality. It was further required to be seen whether he was entitled to be registered in the electoral roll of the Parliamentary Constituency. That enquiry was necessary to be made before the electoral roll of the Municipality could be prepared. But, here no other qualification is required : the mere fact of a person being in the Elect'oral Roll for the territorial area comprised in a division is sufficient to include him in the list of voters for such division. Vide sub-s. (I) of s. 14. What is required by this sub-section is that the list of voters of a division should correspond ipsissima verba with the Electoral Roll for the territorial area included in the division.

If there 'is any mistake in the Electoral Roll, in that some voters residing in one area or house number are shown as residing in another, it cannot be corrected by the Returning Officer while preparing the list of voters for each division. The Returning Officer has to take the Electoral Roll for the territorial area of the division as it is, with whatever mistak~5 there may be in it and that wonld be the list of vo•ers for the division. The only wa,y in which the mistakes, if any, either in the names of the voters or in their addresses, inclnding house numbers in which they reside, can be corrected is by applying for rectification of the Electoral Roll under s. 22 of the Representation of the People Act, 1950. So long as such rectification is not made, the entries in the Electoral Roll would stand and thev would necessarily be reflected In the list of voters for the division.

But they would not constitnte mistake•. so far as the preparation of the list of voters for the division is concerned. It is only if the list of voters for the division does not correspcnd with the E1ectoral Roll for the territorial area comorised in the division. in the sense that voters shovm in the Electoral Roll as residing in the territorial area of the division are omitted to be included in the list of vo•ers. or voters shown in the Electoral Roll as residing in the territmial area of another division are included in the list of voters. that it can be said that the list of voters is defective and not in accordance with the orovisions of the Act. (1957) S. C.R. 68. I KARNATAKA V, G. NAGAPPA \Bhagwati, J.) 65 Now in the present case, it is clear from the Order of the Returning Otticer dated 21st Decembe_r, 1974 that the list of voters for each division corresponded fully and completeiy with the Electoral Roll for the terntorial area comprised in such division.

The finding of the Retummg Officer was tnat the various pans of the Electoral Roll included in the list of voters for each division conformed to the Census Block numbers of the respective divisionl mentioned in the NoLification dated 3rd December, 1974. Each division was defined and demarcated by reference to Census Block numbers and the parts of the Electoral Roll were also made out on the basis of Census B,ock numbers. There could therefore, be no doubt or confusion as to which parts ol the Eloctoral Roll related to the territorial area comprised in a particular division. The correspoI11dmg parts of the E!ectoral Roll could be easily ascertained and identified by reference to Census Block numbers for preparing the list of voters for each division. That was admittedly done in the present case and there was no complaint about it. No defect was also alleged or found in this respect.

The only defect-if at all it can be called a defect-which the Returning Officer noticed on physical verification was that the voters shown in the Electoral Roll as residing in the territorial area of one division were in fact residing in! another. But, as already pointed out above, that cannot be regarded as a defect in the division-wise list of voters ond it would not stamp them with the vice of not being in conformity with the requirements of the Act. The State Government was, therefore, in any view of the matter, not entitled to make the impugned order under rule 75 on the ground that the divisional lists of voters were defective and the election held on the basis of such lists of voters would not be in accordance with the provisions of the Act. What the State Government did by making the impugned order was to interfere with the election process which was going on in accordance with law and that was clearly not permissible on any interpretation of ru'e 75.

That takes us to the alternative argument advanced by the learned Solicitor General on behalf of the State Government. He contended Ihat in any event even if the impugned order was bad and the election process was liable to be continued from the stage at which it was interrupted, the poll could be taken only on the basis of the revised Electo- 'ral Roll which had come into being, in the meanwhile in Februarv l 975' and. therefore it was necessary for the designated ~fficer to co1:- rect the divisional lists of voters so as to bring them in accord with the revised Electoral Roll. This contention is also without force. It ;, true that there is no pro,~sion in the Act similar to s. 23, suh-s.

(3) .:if the Representation of the People Act, 1950 providing that no amendment, transposi1ion or deletion of any entry in the list of voters for " division shall be made and no direction for the inclusion of anv name in such list of voters shall be given after the last date for makin;, nomination for an election in the division. But the scheme of the Act and particularly sections 14 and 15 male it clear that it is one fist of ?aters for each division that is contemplated to be in force during the entire process of election. The list of voters is to be nrenaren for the election and 'election' means the entire process consisting of several stages and embracing several steps by which an elected member is re- 6-7!4SCI'75 66 turned, whether or not it is found necessary to take a poll. Vide : N. P. Ponnuswam; v. Returning Officer, Numakkal Constituency Ors. { 1) The list of voters must, therefore, a forti,m remain the same throughout the process of election.

There cannot be one list of voters for determini11g the eligibility to stand as a candidate and another for determining the eligibility to vote, at the same ele~tion. That would not only be irrational, but would also introduce confusion and uncertainty in the election process. Candidates would not know at the time when they file their nominations as to what is the strength and composition of the electorate in the division m which they are contesting the election. They would also be handicapped in canvassing for votes. It would indeed be a strange and anomalous position if there were two or more different lists of voters at different stages of the same elecuon. Sub-s. (1) of s.14 does not contemplate a bst 0£ voters which keeps on changing from time to time during the election · process.

It deems the Electoml Roll for the territonal area of the divisimt, in force at the relevant time !o be the list of voters for the division "for the purpose of the Act", that is for the purpose of electio11 which is. the whole process culminating in a candidate being declared elected and not merely polling. The same list of voters is, therefore. to prevail for all stages ill the election. This we find emphasised also in sub-s. (3) of s.14 which enacts that everv oerson wh"se name is in the list of voters referred to ;n sub-s. ( 1) shall be qualified to vote at the election of a member for the division to which •uch hst pertains. Sub-s. (2) of s.15 also points in the same direction. It says that "the list of voters shall be conclusive evidence for the purpose of determining under this section whether the person is qualified or is not qualified to vote or is qualified or is not qualified to be elected as the case may be, at an election."

The reference here, •as a matter of plain grammar, is indisputably to the same list of voters which is to be conclusive evidence for both purposes. It is, therefore, clear, on a proper interpretation of the provision of the Act that the Legislature did not intend that the list of voters should change from time to time during the process of election and the relevant Ellc•oral Roll for the purpose of preparation of the list of voters must consequent! y be taken to be _the Electoral Roll in force at the date when the election process commenced, that is, the date when the calendar of events was published. The same view was takei11 by a Division Bench of the Mysore }-Iigh Court in Shivappa Chanamallappa Jogendra v. Basavannappa Gadlappa Banker. (2) We are in agreement with that view.

The poll in the pre-- sent case must, therefore, be taken on the basis of the list of voters for each division prepared with reference to the Electoral Roll in force on 7th December, 1974, that being the date on which the calendar of eveints was published by the Returning Officer. One other question was oalso raised before us, namely, whether the designated officer can be required to rectify the list of voters for a division, if it can be shown that the list of voters does not correspond exactlv with the Electoral Roll for the territorial area of the division, as for' example, some voters in a particular house i'.1 a Census Rlock: number falling in the division, though shown in the Electoral Roll as (I) [1952] S. C.R. 218. (2) (1965) 2 Mysore L. J. 289, l KARNATAKA v. G. NAGAPPA (Bhagwati, !.) 67 such, are, through inadvertence, omitted to be included in the list of voters for the division.

It is not necessary for the purpose of the pre- • sent appeal to decide this questicm, but we may point out that till the election process has commenced by the issue of 11otice fixing the mlendar of events, there is no reason why the designated officer should not be entitled to rectify such defect in the list of voters and bring the list of voters in conformity with the Electoral Roll. But once the calendar of events is published and the election process has begun, it is extremely doubtful whether any changes can be made in the list of voters for the purpose of setting right any such defect. We, however, do not wish to express any final opinion on this point. These wern the reasons which weighed with us in making the order dated 2nd May, 1975 dismissing the appeal with costs and directing the Returning Officer to complete the election before 10th June, 1975 on the basis of the Electoral Roll in force on 7th December 1974. V.P.S. Appeal dismissed.