LexD.B. RAJU versus H.J. KANTHARAJ AND OTHERS
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
D.B. RAJU
v.
H.J. KANTHARAJ AND OTHERS
JULY 13, 1990
B
[LAUT MOHAN SHARMA AND N.M. KASLIWAL, JJ.]
c
Representation of People Act, 1951: Final Electoral roll-To be
made available before expiry fixed for filing nomination papers.
Karnataka Zilla Parishads, Taluk Panchayat Samithis, Manda/
Panchayats and Nayaya Panchayats Act, 1983: Section 5(9), 40(1)-
Final electoral roll to be made available before expi.ry fixed for filing
nomination papers.
The appellant contested the election to the Karnataka State
Legislative Council from the Chitradurga Local Authorities Consti-
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tuency, comprising 121 Manda! Panchayats. The last date and time
fixed for receiving nomination papers was 3.00 p.m. on 3.6.1988, and
revision, if any, of the electoral roll had to be completed before that
time. The polling took place on 3. 7 .1988 and the appellant was declared
as the successful candidate.
E
Earlier, a decision had been taken by the Chitradurga Zilla Paris-
had on 28.5.1988 to nominate two members from each Manda!
Panchayat, that is, a total number of 242 members. With a view to
complete the nomination, the Deputy Commissioner took the necessary
steps in accordance with the Karnataka Zita Parishads, Taluk
Panchayat Samithis, Manda! panchayats and Nyaya Panchayats Act,
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1983, read with the rules framed thereunder, and sent out the names for
affixing the same on the notice boards of the office of the concerned
Tehsildar and Manda! Panchayat and in the Chavadis. On his satisfac-
tion that the publication of 2 /3rd of the total number of the names was
complete, the Deputy Commissioner was free to proceed further and tc
revise the electoral roll under the Representation of the People Act,
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1950 by including all the nominated members. In this regard, in his
written statement before the High Court the Deputy Commissioner
stated that the electoral roll had been up-dated and a copy pasted in the
office on 3.6.1988 at 8.55 p.m.
Sub-section ( 1) of section 40 of the Parishads Act made it
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abundantly clear that a nominated person became the member of a
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D.B. RAJU v. H.J. KANTHARAJ
337
Pancbayat only on the publication of bis name under section 5(9) of the
~· Parisbads Act read with rule 73 of the Parisbads Rules.
A petition was filed in the High Court challenging the appellant's
election on the ground that the inclusion of the 242 nominated members
in the electoral roll took place after the period for nomination was over
and they were, therefore, not included in the electoral roll in the eye of
law.
Aller examining the evidence led by the parties the High Court
held that the names were not incl.:ded in the electoral roll by 3.00 p.m.
on 3.6.1988. Accordingly, the High Court set aside the election of the
appellant and direct~ recount of votes after exclndin~ those of 242
members.
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Before this Court in appeal it was inter alia contended on behalf of
the appellant that (i) the evidence on the record established that infor-
mation of the publication of the names of more than 2 {3rd of the total
number of nominated persons bad reached the Deputy Commissioner in
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time for the amendment of the Council Constituency roll, and that the
Deputy Commissioner bad actually made an order for the inclusion of
the names in the roll on 2.6.1988 (ii) putting the final voters list on the
notice board was not a necessary requirement under the law; and (iii)
__ since the burden was on the election petitioner to prove such facts
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which may vitiate the election, he must fail in the present state of
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evidence.
On behalf of the respondents it was contended that the electoral
roll must be held to have been modified in the eye of law only at 8.55
p.m. on 3.6.1988 when the alleged inclusion of the names was made
public and not earlier.
Dismissing the appeal, this Court,
HELD: (1) A plain reading of the evidence suggests that both the
up-dating· of the electoral roll and pasting a copy thereof took place on
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3.8.1988 at 8.55 p.m. [346G]
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(2) The circumstances that (i) the Deputy Commissioner was not
-~ able to assert in his evidence before the Court that the revision of the
roll had taken place before 3.00 p.m.; (ii) he was under an impression
that the revision was permissible till the midnight; and (iii) in spite of
the documents available to him he was not in a position to assert that the
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SUPREME COURT REPORTS
[ 1990] 3 S.C.R.
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