LexNARENDRA MADIVALAPA KHENI versus MANIKRAO PATIL & ORS.
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... 193 NARENDRA MADIVALAPA KHENI v. MANIKRAO PATIL & ORS. \ July 28, 1977 [V. R. KRISHNA IYER AND P. K. GOSWAMI JJ.] Representation of the People Act, 1950 s. 23(3) and Representa1ion of the People Act, 1951--Ss. 33(4) and 123(1)-lnclusion of names in the electoral roll after 3 _p.m. of the last date for filing nominations-Effect of-Collusion with electoral o!Jicer alleged but not proved-If amounts to corrupt practice. Article 171(3) of the Constitution of India provides that of the total num- A B ber of members of the Legislative Council of a State one-third shall be elected C by electorates consisting of members, among others, of local authorities in the State as Parliament may by law specify. Part IV of the Representation of the People Act, 1950 which deals with electoral rolls for council constituencies pro- vides in s. 23(3) that no amendment, transposition or deletion of any entry :o.hall be made under s. 22 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this section after the last date· for making nominations for election in that constituency. Section 33(1} of the Representation of the Poeple Act, 1951 requires that each candidate shall -< • deliver to the Returning Officer a nomination paper "between 11 o'clock in the D forenoon and 3 o'clock in the afternoon." By a notification issued under s. 30 of the Representation of the People Act, 1951 the Electoral Registration Officer appointed April 17, 1974 as the last date for presenting nomination papers from the local authorities constituency. Jn the election that ensued the appellant was declared elected with 64 votes polled by him as against 54 polled by respondent No. 1. In his election petition the respondent alleged that the appellant, in collusion with the electoral officer, surreptitiously introduced names of 16 persons repre· sen ting a taluk board after 3 p.m. on April 17, 197 4 and that this act of his constituted a corrupt practice within the meaning of s. 123 of the 1951 Act and that the election was void. The High Court set aside the election on the ground that any inclusion of additional names in the electoral roll of a constituency after 3 p.m. on the last date for making nominations fixed under s. 30(a} was illegal, and after deduct· Ing the 16 votes cast by those persons from the total votes polled by the appel- lant, declared the respondent duly elected. Allowing the appeal in part and remitting the case to the High Court. HELD : ( 1) There was no telling material other than speculation or weal suggestion that there was corrupt participation on the part of the officers. The material link to make out invalidation of the election on account of corrupt practice under s. 123(7) was missing because it had not been made out in the evidence that there was collusion between the second respondent and the appel- lant. [201AJ 2. (a} The expression 'last date for making nominations' must mean the last hour of the last date during which presentation of nomination papers is permitted under s. 33 of the 1951 Act. In shorts. 23(3) of the 1950 Act and s. 33(1), (4) and (5) of the 1951 Act interact, fertilise and operate as a duplex of clauses. So viewed the inclusion of the names in the electoral roll after 3 p.m. E F G on April 17, 1974 is illegitimate and illegal. [204F] H The sixteen names brought into the electoral register subsequent to 3 p.m. of April 17, 1974 must be excluded from the reckoning to determine the returned candidate.. [205El • 194 SUPREME COURT REPORTS (1978] I S.C.R. A Baidyanath [1970] I S.C.R. 839 and Ramji Prasad Singh [1977) I S.C.R. 741 referred to. ,.........._ , B c D E F G H (b) The prohibition contained ins. 23(3) of the 1950 Act is based on public p_olicy and. serves a public purpose. Any violation of such a mandatory provi- sion conceived to pre-empt scrambles to thrust into the rolls. after the appointed time, fancied voters by anxious candidates or parties spells invalidity and there can be no doubt that if, in flagrant violation of s. 23(3), names have been included in the electoral roll, the bonus of such illegitimate votes shall not accrue, since the vice of viodance mllbt attach to such names. [202F] (c) In our electoral scheme as unfolded in the 1951 Act every elector ordi- narily can be a candidate. Therefore, his name must be included in the list on or before the date fixed fo
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