LexHARIPRASAD MULSHANKER TRIVEDI versus V. B. RAJU AND OTHERS
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548
HARIPRASAD MULSHANKER 1RIVEDI
v.
V. B. RAJU AND OTHERS
August 28, 1973
[A. N. RAY, c. J., K. K. MATHEW, M. H. BEG, s. N. Dwirnm
A
AND Y. V. CHANDRACHUD, JJ.]
B
Representation of the People Act, 1950, Sections 16, 19, 2i to 24, 30-
Rcpresematioa of rlicP-<:op/e Act, 1951, Section 2(l)(e), 3, 10()(1) (a), 100{1)
(d)(i), (iii), (iv)-Question whetner retuined candidate was ordinarily re~fdent
in t!ze constituency on 1'1'hose ele1.:toral rolls. he was borne not one of jurisdictforral
f-ac1-Sche111e of 1950 and 1951 Acts 1nanifests intention of Parliament to tXtlude
judicial review-Jurisdictional question one <>/'public policy as re,ff.ected· ir: the
statute.
The respondent No. 1, Raju, filed an election petition against the appe1iwit and
respondent No. 5 challenging the ,election to the Council of State~ from Gu.iarat,
on the ground that their names were illega1ly entered in the electoral rol!S', a8
they were not electors within the meaning of Sec. 2(1}{e) of the Representation
of People Act, 1951. It was contended that they were not ordinarily resident
in any of the parliamentary constituencies in Gujarat Sta.te as required by Sec. 19
of the 1950 Act.
The qµestion was treated as a preliminary question by the
Gujarat High Court. The High Court, relying on some decisions of the Supreme
Court, held that ordinary residence in a constitu~ncy was a jurisdictional fit9:t and
the Registration Officer cannot, by an erroneous decision, detern1ine the juri:]dic··
tional fact and clothe himself with jurisdiction and enter the names of the said
respondents in lhe electoral rolls. The preliminary question was answer~d by the
High Court in favour of respondent No. 1, Raju.
The appellant before the
Supreme. Court challenged the High Court's order on the ground that it \lo'~ not
competent for the High Court to go behind the decision of the Registration Offic;:e.r
and -decide· whether his decision decJari.ng the respandents as ordinarily '.·e-:;ldent
iu the respective parliamentary constituencks, was correct or not.
Contesting the appellant's claim, respondent No. 1; inter alia contendeJ.; that
if the decision of the Registration Officer regarding ordinary residence \\·as to be
final on the question of the entitlement of a citizen to be entered in the e1ectoral
rolls, there is no recourse to a Civil Court u /s 30 of the Act. Courts caanot
imply the ouster oCtbe jurisdiction of Courts trying an election petition because
if the officer decides the question wrongly, a citizen will have no remedy to protect
his statutory right to be a voter and to contest electioas.
Respondent No. l
further contended that a wrong decision by the officer would raise a question
of jurisdictional fact and' the High Court has jurisdiction to decide such a qur.sti.on.
Rejecting the contentions,
HELD : ( l) The intention of Parliament to oust the jurisdiction of 1he Court
trying an election petition to ftO into the question whether a person is ordin~:ily
resident in the constituency in the electoral roll of whicl;l his name is e=ntered is
manifest from the scheme of Representation of Peo;>le's Act, 1950 and .1951.
Art. 327 of the Consiitution gives full power to Parhament, subject to the provi·
sions of the Constitution, to make laws with respect to all matters relating to or
in connection with the elections ihcluding the preparation of electoral rolls. It
was, therefore, open to Parliament to prescribe the mode of the preparat!-~ ef
the electoral roll and say that it .. is not Hable to 1be challenged except m the
manner provided.
The Parliament was, therefore, competent, subject t(} the
provisions of the Constitution, to exclude the jurisdiction of the Civil Court or
the Tribunal trying an election petition to go into the question whether the na~
of any person has beeti entered therein ·illegally. The right to stand for .. eiec~on
is a statutory right and the statute can, therefore, regulate the manner in which
the right has to be enforced or the remedy for_ enforcing it: The 1950 Act pro-
vides a complete code so far as the preparation and maintenance of electoral
tolls are concerned. The Act enacts a complete machinery to enquire into the
cla~ms and objections as regards re,.Wration as voters and for appeals froct.• the
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H. M. TRIVEDI v. v. B. RAJU (Mathew, J.)
049
de<:ision of tho Registering Officer. Sec. 30 of the Act makes it clear th;;! Civil
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