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2001 DIGILAW 596 (KER)

P. T. Rajan v. T. P. M. Sahir

2001-10-24

M.R.HARIHARAN NAIR

body2001
Judgment :- M.R.Hariharan Nair, J. Issues 1,2 and 3 raised in this case were heard as preliminary points today. The issues concerned are the following: 1. Has the petitioner adequate cause of action to challenge the declaration of results made on 13.5.2001? 2. Whether the E.P. is liable to be dismissed for non-joinder of necessary parties? 3. Whether the E.P. is liable to be rejected/ dismissed for want of adequate pleadings?" 2. Issue No.2: This is a case where there is an allegation that after the last date for filing the nominations viz. 23.4.2001, the final voters list relating to No.25 Kozhikode II Assembly constituency was meddled with in such a way that 19045 names were deleted and 6828 voters were added thereto. It is also alleged that the changes aforementioned were made by the District Electoral officer, electoral Registration officer and Tahsildar (Election) in collusion with the first respondent with the intent of giving undue benefit to the 1st respondent and that the result of the election was materially affected due to the illegal reception and rejection of votes. 3. According to the learned counsel for the first respondent, in view of the allegations against the Electoral Officers as above, they are necessary parties to the Election Petition. In this regard reliance is also placed on the decision in Lakshmi Chara Sen and others V. A. K. M. Hassan Uzzaman and others ( AIR 1985 S.C. 1233). It was observed therein , while deciding the question whether an election can be allowed to be held as per the alleged defective electoral roll and while finding that it is not possible to issue any writ of mandamus to the Electoral Registration Officers for inclusion or exclusion of names of persons from the electoral rolls, it was found that the authorities actually responsible for the lapse are the Electoral Registration Officers, and when they have not been made parties to the petition, no writ of mandamus can be issued against them. 4. It is obvious forms a perusal of the said judgment that therein the question of correctness of the electoral roll was considered in an Original Petition Where allegations had been raised against an Electoral Registration Officer and before conduct of the election. It was in that context that the observation regarding his being a necessary party was made. 4. It is obvious forms a perusal of the said judgment that therein the question of correctness of the electoral roll was considered in an Original Petition Where allegations had been raised against an Electoral Registration Officer and before conduct of the election. It was in that context that the observation regarding his being a necessary party was made. Unlike the said case, here is a case of post-election dispute and the question of imp leading does not arise here in any Original Petition seeking mandamus. What is involved in the present case is the effect of tampering with the electoral rolls on the result and the relief that can be given to the defeated candidate or other affected party based on the alleged misdeeds of the electoral officers. 5. As far as the impleadment of the Electoral Registration Officers in an Election Petition is concerned, it is decision in Jyoti Basu and others V. Debi Ghosal and other (AIR 1982 S.C. 983) that applies. After a survey of the entire case law on the point the Apex Court found therein as follows: "We are of the opinion that no-one may be joined as a party to an Election Petition otherwise than as provided by Sections 82 and 86(4) of the Act. It follows that a person who is not a candidate may not be joined as a respondent to the election petition. XXX XX" 6. The matter again came up for consideration of the Apex Court in B. Sundara Rami Reddy V. Election Commission of India & others (1991 Supp (2) SCC 624). The position was re-iterated therein as follows. "Under the code(Civil Procedure Code) even if a party is not necessary, he is required to be joined as a party to a suit or proceedings if such person is a proper party, but the Representation of the People Act, 1951 does not provide for joinder of a party to an election petition. The concept of joining a proper party to an election petition is ruled out by the provisions of the Act. The concept of joinder of a proper party to a suit or proceeding underlying Order I of the C.P.C. cannot be imported to the trial of election petition, in view of the express provisions of sections 82 and 87 of the Act. The concept of joinder of a proper party to a suit or proceeding underlying Order I of the C.P.C. cannot be imported to the trial of election petition, in view of the express provisions of sections 82 and 87 of the Act. The Act is a self-contained Code which does not contemplate joinder of person or authority to an election petition on the ground of proper party. Only those may be joined as respondents to an election petition who are mentioned in 'sections 82 and 86(4) and not others. However desirable and expedient it may appear to be, none else shall be joined as respondents." 7. The observation aforementioned clinches the issue. It is obvious that the Electoral Registration Officer or any other Election Officer related to the election challenged in an Election Petition is not a necessary party to the proceedings. The contention of the first respondent is without merit. The point is found in favou-r of the petitioner. 8. Issues 1 and 3: These are considered together for the sake of convenience. The substance of the arguments advanced by the first respondent is that the defects in the electoral roll cannot come within the purview of an election petition; that it is a pre-electoral process in respect of which there are adequate remedial measures provided for in the Act and the Rules and that no one can rely on the defects in the list as a ground for invalidating the result of an election. In this regard learned counsel for the first respondent took me through the decision in Shyamdeo Pd. Singh v. Nawal Kishore Yadav (AIR 2000 SC 3000) in extenso. 9. I find absolutely no merit in the contention of the first respondent. The decision aforementioned (Shyamdeo's case) was not one where there was any challenge that the final electoral roll as available on the last date for filing nominations was interfered with by the Electoral Registration Officer. Singh v. Nawal Kishore Yadav (AIR 2000 SC 3000) in extenso. 9. I find absolutely no merit in the contention of the first respondent. The decision aforementioned (Shyamdeo's case) was not one where there was any challenge that the final electoral roll as available on the last date for filing nominations was interfered with by the Electoral Registration Officer. The dictum in the said case can be found in Para 24 and that was only that inclusion of person of persons in the electoral roll by an authority empowered in law to prepare the electoral rolls, though they were not qualified to be so enrolled, cannot be a ground for setting aside an election of a returned candidate under sub-clause (iii) or (iv) of Clause (d) of sub-section (1) of Section 100 of the Representation of the People Act, 1951. It was also held that a person enrolled in the electoral roll by an authority empowered by law to prepare it or to include a name therein is entitled to cast a vote unless disqualified under subsections (2) to (5) of Section 62 of the Representation of the People Act, 1951 and that a person whose name is found in the electoral roll cannot be excluded from exercising his right to cast v ote on the ground that he did not satisfy the eligibility requirement as laid down in Section 19 or 27 (5) of the Representation of the People Act, 1950. 10. A perusal of the above judgment show that there was no allegation therein that the electoral roll in question was tampered with after it attained finality on the last date for filing nominations. On the other hand, the allegation was only that in the final electoral roll a large number of ineligible persons found their place and consequently there was improper reception of vote. There is an ocean of difference between a contention that in the final electoral roll there were defects and in a contention that after the last date for filing nomination the final electoral roll is tampered with. There is an ocean of difference between a contention that in the final electoral roll there were defects and in a contention that after the last date for filing nomination the final electoral roll is tampered with. Further, even in the aforesaid decision, it is held in paragraph 22 that the last date for making nomination for election in a constitueny and the date of declaration of result are the terminus a quo and terminus ad quem between which the electoral rolls must remain untouched and that amendments which will include inclusion, transposition or deletion of entries in electoral rolls are all taboos in this interregnum. In fact the question involved in the present case is only the impact of the taboo aforementioned on the result of the election. In other words, the real question here is whether the Polling Officers were right in permitting persons who were not in the final electoral roll of 23.4.2001 to vote and also in not permitting those who were in that roll to vote. The said question is not covered by the decisions cited by the 1st respondent. 11. In view of the findings as above, it is unnecessary to deal at length with regard to the pleadings in the case. Suffice it to say that here is a case where the petitioner has specifically alleged that the Electoral Registration Officer had acted contrary to the provisions of law and against known norms for holding a democratic election in so far as the voters list became final on 23.4.2001 and the deletion of the names of the 19045 voters from the final electoral roll was made after 23.4.2001; without notice to the concerned voter and without opportunity to them of being heard. It is further alleged that in view of the aforesaid illegal acts of the Electoral Registration Officer, a large number of voters who were unaware of the changes in the list had turned up for voting at the respective polling stations; that the Polling Officers and staff did not allow them to vote on the ground that their names stood deleted from the voters list and that they were not entitled to vote in the election. It is also alleged that most of the persons so turned up were known supporters of the left Democratic Front and that thus there was improper refusal of nearly 15000 voters, which has affected the result of the election the margin of difference being as thin as 787 votes. 12. This is not a case where the petitioner alleges that eligible persons were deleted from the final electoral roll or that ineligible persons found their place in the final electoral roll; but a case where the one and the only allegation is that after the final electoral roll had attained total finality on 23.4.2001, against all known principles and requirements of law, the electoral roll was illegally tampered with resulting in improper reception of some votes and improper refusal or rejection of valid votes against the provisions of the Act and the Rules. On the pleadings available in the case, there is absolutely no justification to reject the election petition as not maintainable. 13.The learned counsel for the first respondent submitted that the averments are all vague and unsupported by evidence. It cannot be said that the allegations are vague in so far as the petitioner has produced along with the Election Petition the list of 19045 voters mentioned in the Election Petition as Document 1(A) as also the list of 6828 voters added to the final list after 23.4.2001 as Document No.1 (B). Then the question is whether there was in fact tampering with the final electoral roll as published on 23.4.2001. In the petition itself the petitioner has stated that the exact number of voters as on 23.4.2001, the correct number of voters deleted from the list, and the correct number of voters added to the list after 23.4.2001 can be ascertained only by production of the original files and records kept by the Electoral Registration Officer and the District Election Officer. Obviously, this is a matter for evidence and at is too premature now to deal with it. The case, therefore, has to go for evidence. These issues are found against the first respondent and in favour of the petitioner. 14. The list of witnesses will be filed within a period of seven days from today. Post the case on 5.11.2001 for fixing the schedule for trail.