Subhash Kisan More v. Abhayankar Jagannath Motiram

1. This application is filed by respondent no.1 in the election petition. The applicant prays for the rejection of the election petition under Order VII Rule 11 of the Civil Procedure Code, 1908 (“CPC”). The election petition is filed under Section 81 of the Representation of the People Act 1951 (“the 1951 Act”) to challenge the biennial election of respondent no.1 to the Maharashtra Legislative Council from the Mumbai Teachers Constituency held on 26th June 2024. The election result was declared on 1st July 2024, and the applicant was declared a successful candidate. The petitioner also prays for a declaration that he be declared duly elected in the election to the said constituency.

2. The petitioner has contended that there were a total of 15,839 voters in the said constituency, out of which 1200 voters exercised their right to vote. There were 402 invalid votes, and the remaining 11598 were considered valid. The petitioner has contended that a quota of 5800 was fixed for the winning candidate. It is further contended that in the first round, the applicant received 3079 first-preferential votes, whereas the petitioner received 3011 first-preferential votes. Thus, the petitioner contended that there was only a difference of 68 votes between the applicant and the petitioner. The petitioner further contended that in the 11th round, i.e. the second last round before declaring the result, the applicant’s votes had reached 3642, whereas the petitioner’s votes reached 3434, and there was a difference of only 208 votes. The petitioner thus contended that if the election of respondent no.1 in the election petition (“the applicant”) is declared null and void, the petitioner, being the second highest candidate, would be entitled to be declared elected.

ARGUMENTS FOR REJECTING THE ELECTION PETITION

AT THE THRESHOLD:

3. The application for rejection of the election petition is filed on the ground that the petition raises an objection on the final electoral list, which cannot be made a subject matter of challenge in the election petition. Learned senior counsel for the applicant submitted as under: a) In view of the schedule published by the Election Commission, the electoral roll was published on 23rd November 2023. The election commission had published a draft electoral list on 16th October 2023 and 25th October 2023. Until 6th November 2023, time was available to seek any claims or objections to these lists. The last date for nomination was 7th June 2024. Therefore, the objection regarding the addition of ineligible candidates not raised before the last date of filing nomination cannot be made the subject matter of challenge in the election petition. The only exception available to challenge the electoral roll is on the ground that the names were added after the last date of submission of the nomination. Irrespective of the objections to the eligibility, the objection raised after the last date of nomination cannot be made a subject matter of challenge in the election petition. b) The sole allegation in the petition is that ineligible voters were enrolled in the electoral roll and they had voted in the election held on 26th June 2024. The allegation against the applicant is that the addition of ineligible voters was made under the undue influence of the applicant, through the Headmasters/Principals of the respective schools. However, the petition is bereft of any particulars regarding the illegal addition of voters by the concerned Headmasters/Principals. The allegations are vaguely made against the applicant. The Headmasters/Principals who are authorised to add the names to the electoral roll are not made a party to the petition. c) According to the petitioner, primary and pre-primary teachers were ineligible to be voters, and only secondary school teachers and above secondary school teachers were eligible. The allegations regarding the ineligibility of the voters are based on a vague allegation that the minimum age required was not considered, and non-teaching staff were enlisted as voters. The procedure to prescribe the qualification for the teachers constituency is provided under Section 27(3) of the Representation of the People Act 1950 (“the 1950 Act”). The petition is filed on a misconception that primary and pre-primary teachers are excluded. The Election Commission of India issued the revised guidelines dated 5th September 2016 regarding the preparation of the electoral rolls of the Teachers Constituency. The provisions indicate that the electors must be teaching in institutions not lower in standard than that of a secondary school. The qualification is with regard to the level of the Institutions; hence, all the eligible teachers of the Institutions having a secondary section would be eligible to be added as voters. The Notification dated 8th October 1985, published by the State Government notifying the standard of the Institutions for the purpose of election of the said constituency, is misinterpreted in the petition. Hence, the ground to challenge the election, as raised in the petition, would not constitute any cause of action. d) The electoral roll in the teachers constituency is finalised after certification by Headmasters/Principals, and if a discrepancy is found, the form is rejected. Hence, there is no basis for the vague allegation that there was collusion between the applicant and the concerned Headmasters/Principals for adding the names of ineligible voters. The vague allegations without any material particulars regarding any undue influence by the applicant in preparing the electoral roll, the petition would not warrant any trial. e) Section 30 of the 1950 Act bars the civil court’s jurisdiction to adjudicate upon any question regarding the electoral roll. For the purpose of the election petition, the High Court is a civil court. In view of Section 27(4) of the 1950 Act, the provisions of Sections 15, 16, 18, 22 and 23 shall apply in relation to the teachers constituency. However, only if Section 23(3) is not followed can it be questioned through the election petition. As per the General Administration Department guidelines dated 8th October 1985, all the teachers from the educational institutions listed in the guidelines are eligible to be added to the electoral roll. In view of the well-settled legal principles and the applicable Rules for preparing the electoral roll in the teachers constituencies, the allegations made in the election petition would not warrant any trial. Thus, the election petition is liable to be rejected at this stage. f) Learned senior counsel for the applicant relied upon the decision of the Hon’ble Apex Court in the case of Indrajit Barua and Others V/s Election Commission of India and Others[1]. He submitted that the Hon’ble Apex Court has taken the view that preparing the electoral roll is not a process of election. As held by the Hon’ble Apex Court, in a suitable case, a challenge to the electoral roll for not complying with the requirements of the law may be entertained subject to the rule indicated in the decision of N.P. Ponnuswami Vs. Returning Officer, Namakkal

Constituency[2]. Learned senior counsel for the applicant relied upon paragraph 12 of the said decision, which referred to the view taken by the Hon’ble Apex Court in the case of N.P. Ponnuswami. g) Learned senior counsel for the applicant relied upon the decision of the Hon’ble Apex Court in the case of Hariprasad Mulshanker Trivedi Vs. V.B. Raju and Others[3]. He submitted that the Hon’ble Apex Court held that the process of finalising the electoral roll cannot be questioned in the election petition, as the same cannot be termed an election process. He also relied upon the decisions in the case of Samar Singh Vs. Kedar Nath alias K.N. Singh and Others[4] and in the case of B.M. Ramaswamy Vs. B.M. Krishnamurthy and Others[5], to support his submission that the objections to the final electoral roll pertaining to allegations regarding the preparation of the electoral roll or adding members to the electoral roll before the last date of submission of 2 1952 SCR 218

4 1987 (Supp) SCC 663 5 (1963) 3 SCR 479 the nomination cannot be the subject matter of the election petition. The election petition on the sole ground of objection to the preparation of the electoral roll would not constitute any cause of action. The well-established legal principles regarding rejecting an election petition at the threshold if the petition does not constitute any cause of action, squarely apply to the present petition. Thus, the petition must be rejected at the threshold under Order VII Rule 11 of CPC.

ARGUMENTS ON BEHALF OF THE PETITIONER:

4. Learned senior counsel for the petitioner submitted as under: a) The petitioner has pleaded the particulars of the illegality of adding ineligible names to the electoral roll. The particulars pleaded in the petition would warrant trial. Hence, the petitioner would be entitled to lead evidence to support the allegations of adding ineligible names to the electoral roll. b) The Election Commission of India has issued guidelines dated 5th September 2016. Clause 1.[3] provides for the eligibility of voters in the teachers constituencies. He relied upon the relevant provisions to support his contentions that the teachers of the primary and preprimary schools are not qualified to be added as eligible voters. c) After the election program is declared, the candidate who subsequently decides to file a nomination is left with no remedy to challenge the electoral roll, as the election program is already declared. The objection regarding the addition of ineligible names in the voters list can be made subject matter of challenge in the election petition. As per the regulation issued by the Election Commission of India, the voters in the teachers constituencies have to be from the secondary section. The General Administration Department guidelines dated 8th October 1985 provide the list of educational institutions not lower in standard than that of a secondary school, which are notified for the purpose of election to the Maharashtra Legislative Council from Teachers Constituencies. The list contains pre-primary, montessori, primary, etc, as eligible institutions; however, the voters would be eligible only from the secondary section. d) Learned senior counsel for the petitioner relies upon paragraph 18 of the decision of the Hon’ble Apex Court in the case of Hari Prasad Mulshankar Trivedi. He submitted that if any name is entered or deleted and there is an irregular exercise of the power, the court trying the election petition can go into the question whether there was a violation of Section 23(3) of the 1950 Act. Learned senior counsel referred to the decision in the case of Indrajit Barua and submitted that even as per the legal principles settled by the Hon’ble Apex Court, in a suitable case challenge to the electoral roll for not complying with the requirements of the law can be entertained, subject to the rule indicated in the decision of N.P. Ponnuswami. e) Learned senior counsel for the petitioner further submits that even otherwise, all the legal principles relied upon by the learned senior counsel for the applicant are not with reference to the election of the Legislative Council. The right of appeal under Section 24 of the 1950 Act is not available in the elections of the Teachers Constituency of the Legislative Council. Thus, in the absence of any remedy to raise objections to the illegality in the preparation of the electoral roll, the petitioner cannot be deprived of raising objections by way of the election petition. The material particulars pleaded in the petition to support the allegations would warrant a trial, as sufficient cause of action arises to challenge the election of the applicant. He thus submits that the petition cannot be rejected at the threshold as contended by the applicant.

CONSIDERATION OF THE SUBMISSIONS:

5. I have perused the papers of the petition and the application and considered the rival submissions. The petition is filed to declare the election of the applicant to the Maharashtra Legislative Council from Mumbai Teachers Constituency null and void. The petitioner also prays to declare that the petitioner is duly elected. To consider the submissions on behalf of the applicant for rejection of the petition at the threshold, it is necessary first to examine the pleadings in the petition. The pleadings in the petition can be summarised as under: a) The election of the applicant is void under section 100(1) (d)(iii) and 100(1)(d)(iv) of the 1951 Act. The applicant received votes that are illegal and void. In gross violation of the provisions of the Constitution of India and the 1950 and 1951 Acts and the Rules framed thereunder, and in breach of the orders and guidelines, 587 ineligible persons were registered under the applicant’s influence and power. A list of 587 ineligible voters is annexed to the petition. b) The applicant was the Chairman of the Maharashtra State Scheduled Castes and Scheduled Tribes Commission and also the Minority Commission and worked on other important and influential posts. The applicant retired from the post of Deputy Secretary, School Education Department. The applicant is an office bearer of important educational institutions. Hence, by taking undue advantage of the post he held in the past, the applicant influenced the registration of ineligible persons as voters. The petitioner referred to various educational institutions in the petition and contended that the applicant, through the Headmaster/Principal of those institutions, facilitated the registration of 518 voters who are working as teachers in pre-primary and primary schools and also nonteaching staff. Around 69 voters are between 18 and 25 years old, which shows that they have no requisite experience of three years. Thus, a total of 587 ineligible electors were registered in the electoral roll who voted for the applicant. c) Pursuant to Section 27(3)(b) of the 1950 Act, the State Government notified a list of educational institutions not lower in standard than a secondary school by notification dated 8th October 1985. As per the government circular dated 26th September 2023, a person who has been for atleast three years in the last preceding six years from 1st November 2023, been engaged in teaching in such an institution in the State, not lower in standard than that of a secondary school, can be held eligible to vote. d) There were a total of 15,839 voters in the said constituency, out of which 1200 voters exercised their right to vote. There were 402 invalid votes, and the remaining 11598 were considered valid. A quota of 5800 was fixed for the winning candidate. In the first round, the applicant received 3079 first-preferential votes, whereas the petitioner received 3011 first-preferential votes. Thus, there was only a difference of 68 votes between the applicant and the petitioner. In the 11th round, i.e. the second last round before declaring the result, the applicant’s votes had reached to 3642, whereas the petitioner’s votes reached 3434, and there was a difference of only 208 votes. Thus, if the election of the applicant is declared null and void, the petitioner, being the second-highest candidate, would be entitled to be declared elected.

6. The applicant contends that there is no allegation that illegal addition of votes was done after the last date of nomination or declaration of the final electoral list; hence, according to the learned senior counsel for the applicant, any objection raised regarding the illegal addition of names of the electors before the last date of submitting nominations cannot be made the subject matter of an election petition. A perusal of the election petition indicates that the grounds for challenging the election are only the illegal addition of the names of ineligible electors, by illegal use of power and undue influence. Thus, it is necessary to discuss all the decisions relied upon in this case, to understand the legal position as to whether the preparation of the electoral roll is a process of an election and whether an objection to the electoral roll can be raised in an election petition.

LEGAL POSITION:

7. The Hon’ble Apex Court in the decision of Indrajit Barua was dealing with the challenge to the validity of the elections to the Assam Legislative assembly in a number of writ petitions filed under Article 226 of the Constitution of India in the Gauhati High Court. A more or less similar allegations were made, substantially challenging the electoral rolls and questioning the validity of all the elections to the Legislative Assembly, and praying for the dissolution of the house. At the instance of the Election Commission, these petitions were transferred before the Hon’ble Supreme Court. It was held in paragraph 3 as under: “3. ………………….We are of the view that once the final electoral rolls are published and elections are held on the basis of such electoral rolls, it is not open to anyone to challenge the election from any constituency or constituencies on the ground that the electoral rolls were defective. That is not a ground available for challenging an election under Section 100 of the Representation of the People Act, 1951. The finality of the electoral rolls cannot be assailed in a proceeding challenging the validity of an election held on the basis of such electoral rolls vide Kabul Singh v. Kundan Singh [(1969) 2 SCC 452: (1970) 1 SCR 845: 42 ELR 325]. Article 329(b) in our opinion clearly bars any writ petition challenging the impugned elections on the ground that the electoral rolls of 1979 on the basis of which the impugned elections were held were invalid.” (emphasis applied by me)

8. In the decision of Indrajit Barua, while dealing with the point as to whether preparation and publication of the electoral rolls are a part of the process of election within the meaning of Article 329(b) of the Constitution, the Hon’ble Apex Court referred to the decision in N.P.Ponnuswami, where the Apex Court had to decide the amplitude of the term ‘election’. The relevant observations from the judgment in the decision of N.P.Ponnuswami, was referred to and quoted in paragraph 12 as under: “……………… The discussion in this passage makes it clear that the word ‘election’ can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process.”