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2023 DIGILAW 661 (KAR)

Abdul Jafar Ali v. Election Commission of India

2023-04-27

RAVI V.HOSMANI

body2023
ORDER : 1. Challenging order dated 21.04.2023 passed by respondent no. 3 at Annexure-D rejecting petitioner’s nomination and seeking for direction, directing respondents to enroll name of petitioner in electoral list of Karnataka and consequently permit petitioner to contest election for Karnataka State Assembly by accepting his nomination etc. this writ petition is filed. 2. Sri D.R. Ravishankar, learned Senior Counsel appearing for Sri Manjunath S. advocate for petitioner submitted that prior to going to Dubai for earning livelihood, petitioner was born and brought up in Bangalore. After return to Bangalore recently, he had involved himself in various social activities to serve public. 3. It was submitted that petitioner intended to contest general elections for Legislative Assembly of Karnataka from Shivajinagar, Bangalore constituency. He was issued with ‘B’ Form by Janata Dal (Secular) Party to contest election. 4. Petitioner made online application for registration in electoral list on 20.04.2023. Online platform registered his application as submitted successfully by allotting reference number namely Ref. I.D. ONA468104865. 5. Petitioner also filed nomination paper before respondent no. 3-Returning Officer on 20.04.2023. However, petitioner was shocked when respondent no. 3 proceeded to pass impugned order rejecting petitioner’s nomination. 6. It was submitted that only reason assigned by respondent no. 3 for rejecting petitioner’s nomination was that petitioner was not included in list of electoral roll in Karnataka. It was submitted that as per Para No. 1.7.3 of handbook of Returning Officers 2022 referred to in impugned order, addition of names in electoral roll would be carried out till last date of filing nominations. Though, petitioner had submitted application for entering his name in electoral roll on 20.04.2023 which was last date for filing nomination and therefore, required to be considered. Without such consideration, rejection of nomination was contrary to law. It was submitted that Article 326 of Constitution of India 1950, merely prescribe that applicant should be citizen of India and not less than 18 years of age. Intention of fixing minimum criteria was to enable anyone with said qualification to contest election. It was submitted that Section 4(d) of Representation of the People Act, 1951 (for short ‘RoPA 1951’) as also Section 5(c) thereof only state that candidate should be an elector for any assembly constituency and do not mandate that candidate should be an elector as on date of filing nomination. It was submitted that Section 4(d) of Representation of the People Act, 1951 (for short ‘RoPA 1951’) as also Section 5(c) thereof only state that candidate should be an elector for any assembly constituency and do not mandate that candidate should be an elector as on date of filing nomination. As inclusion of name in electoral roll could be made even after filing nomination, and when petitioner’s application for inclusion of his name in electoral roll was pending, rejection of petitioner’s nomination was contrary to law and called for interference. 7. It was submitted that Section 36 of RoPA, 1951, did not mention non-inclusion of name in electoral roll as ground for rejecting nomination. Therefore, rejection was in violation of Section 33 to 36 of ROPA 1951. 8. It was submitted that procedure for preparation of electoral rolls was governed by Part-II of Registration of Electors Rules, 1960 (‘Rules’ for short) and Rules 16, 17 and 18, were in respect of correction of electoral rolls, while Rule 8 was for preparation of electoral roll. It was submitted that inclusion of name in electoral roll could be made even after filing of nomination. 9. On other hand, Sri. S.R. Dodawad, learned counsel for respondents no. 1 to 3 submitted that writ petition challenging rejection of nomination was not maintainable after publication of calendar of events. Relying upon decision in Election Commission of India vs. Ashok Kumar and Others, 2000 (8) SCC 216 submitted that interference by High Court in election process after its commencement was barred. It was submitted that Hon’ble Supreme Court had observed that only on satisfaction of dual tests viz. (i) order sought from Court did not have effect of retarding, interrupting, protracting, or stalling of counting of votes and declaration of results as only that much of election proceedings had remained to be completed at that stage and (ii) clear case of mala-fides on part of Election Commission inviting intervention of Court was made out, that being the only ground taken in petition. 10. It was submitted that Section 23(3) provided that no amendment etc. and no direction for inclusion of name in electoral roll could be issued after last date for filing nomination. It was submitted that Rule 16(b) of Rules, mandated notifying claim for inclusion in electoral roll. Further Rule 26(3) provided period of such notification to be seven days. 10. It was submitted that Section 23(3) provided that no amendment etc. and no direction for inclusion of name in electoral roll could be issued after last date for filing nomination. It was submitted that Rule 16(b) of Rules, mandated notifying claim for inclusion in electoral roll. Further Rule 26(3) provided period of such notification to be seven days. As petitioner had filed application for inclusion of name in electoral roll only on last date for filing nomination, inclusion of name without following procedure under Rule 26(3) would not be possible upto last date for filing nomination. Therefore, as there was non-compliance with requirement of Section 5(c), rejection of nomination was justified. In support of said submission, he relied upon decision in case of P.T. Rajan vs. T.P.M. Sahir and Others, 2003 (8) SCC 498 wherein it was observed having regard to Section 23(3) prohibiting any amendment etc. after last date for making nomination, only those amendments etc. to electoral roll pursuant to or in furtherance of directions or competent authority upto 3:00 p.m. on last date for filing nomination would be valid. It was held that application has to be filed atleast seven days prior to date specified for filing nomination and not thereafter. 11. It was further submitted that Division Bench of High Court of Madras in C. Lakshmi Narain vs. Chief Election Commissioner and Others, AIR 1997 Mad. 125 held that person alleging omission of his name in electoral roll and not availing remedy under Act, could not invoke jurisdiction under Art. 226 of Constitution of India. 12. Learned AGA for respondent no. 4 supported impugned order. 13. Heard learned counsel, and perused writ petition record. 14. From above, question that would arise for consideration is, whether rejection of nomination on ground of non-inclusion of name in electoral roll even during pendency of application for inclusion of name in electoral roll would be justified? And whether petitioner was entitled to invoke jurisdiction of this Court? 15. There is no dispute about fact that petitioner was not an elector as on date of filing nomination. There is also no dispute about petitioner having filed application for inclusion of name in electoral roll on last date of filing nomination and only reason for rejection of nomination was non-inclusion of name in electoral roll. 16. Part-III of RoPA, 1950 provides for preparation of electoral roll for election to State Assembly. There is also no dispute about petitioner having filed application for inclusion of name in electoral roll on last date of filing nomination and only reason for rejection of nomination was non-inclusion of name in electoral roll. 16. Part-III of RoPA, 1950 provides for preparation of electoral roll for election to State Assembly. Section 19 indeed provides for only two conditions for registration namely, not less than 18 years of age on qualifying date and ordinary resident in the constituency. Section 21 provides procedure for preparation and revision for electoral roll; Section 22 for correction and Section 23 for inclusion of names in electoral rolls. 17. Any person whose name is not included can apply to electoral Registration Officer for inclusion. Section 23(3) which contains limitation of above power, reads as follows: “(3) No amendment.......and before the completion of that election.” 18. Likewise, Rule 26(3) of Rules mandates seven days as minimum period for Registration Officer to publish any request for correction and inclusion of name in electoral rolls. 19. Admittedly, application for inclusion of name was filed by petitioner only on last date fixed for filing nomination. As observed in P.T. Rajan’s case (supra) referring to Section 23(3), there can be no amendment/revision etc. of electoral roll after last date fixed for filing nomination till completion of that election. 20. When there can be no inclusion of name in electoral roll without compliance with minimum period of publication and petitioner having filed application for inclusion of name in electoral roll only on last date for filing nomination, respondents no. 1 to 3 cannot be stated to have committed any error or illegality in not processing petitioner’s application. 21. Since, it is mandate of Section 4(d) and 5(c) that only an elector would be entitled to file nomination. Therefore, rejection of petitioner’s nomination by respondent no. 3 would not call for interference. At time of passing impugned order, respondent no. 3 has observed that petitioner has in fact, mentioned electoral roll number of his proposer as his, which is not even claimed to be a bona-fide mistake, disentitling petitioner to any relief from this Court. 22. Even on ground that invocation of jurisdiction under Art. 226 of Constitution of India would be prohibited after commencement of election process as held in Ashok Kumar’s case (supra), no relief can be granted. 23. Hence Writ Petition is dismissed.