HARIPRASAD MULSHANKER TRIVEDI versus V. B. RAJU AND OTHERS

HARIPRASAD MULSHANKER 1RIVEDI

V. B. RAJU AND OTHERS August 28, 1973

[A. N. RAY, c. J., K. K. MATHEW, M. H. BEG, s. N. Dwirnm AND Y. V. CHANDRACHUD, JJ.]

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 preliminary question by the Gujarat High Court. The High Court, relying on some decisions of the Supreme Court, held that ordinary residence in constitu~ncy was 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 citizen to be entered in the e1ectoral rolls, there is no recourse to 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, citizen will have no remedy to protect his statutory right to be voter and to contest electioas. Respondent No. l further contended that wrong decision by the officer would raise question of jurisdictional fact and' the High Court has jurisdiction to decide such 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 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 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 complete code so far as the preparation and maintenance of electoral tolls are concerned. The Act enacts complete machinery to enquire into the cla~ms and objections as regards re,.Wration as voters and for appeals froct.• the

H. M. TRIVEDI v. v. B. RAJU (Mathew, J.)

de<:ision of tho Registering Officer. Sec. 30 of the Act makes it clear th;;! Civil Courts have no jurisdiction to adjudicate the question. In these circumstances, we do not think that it would be incongruous to infer and imply ouster l)f the jurisdiction of tho Court trying an election petition. That inference is stren&fhened by the fact that u/s IOO(J)(d) (iv) of the 1951. Act tl!e result llf .t~o election must have been materially affected by non-compltance with the provmons of the Constitution or of that Act or of Rules and orders made under that Act In order that High Court may declare an election to be void. Non-comp\iance widl the provisions of s. 19 of the Act cannot furnish ground for declanng an election void under that clause. The matter is concluded by the decision of this C<iurt in P. R. IJe/agali v. B. D. Jatti (AJ.R. 1971 S.C. 1348), (555C, 557F, BJ B. V. Ramaswamy v. B. M. K;ishnam11rthi A.I.R. 1963 S.C. 458 refemd to. Vaidya1wth l'a11iiar v. Sita Ram Mahtu, A.l.R. 1970 S.C. 314, Kabu! Sincfl v. K1111da11 Singh, A.1.R. 1970 S.C. 340 and Wopansao v. N. L Od)'110 A.t.R, 1971 S.C. 2123, held applicable. (2) Neither the decision of this Court in Vaidyanalh Panjiar whic:t took the view that violation of s. Z3(3) of the 1950 Act in entering or deletin9 the names of persons in the ele<:toral rolls after the last date for making nomination relates to lack of power, nor the decision in Wopansao '\Vhich alsQ suggests that where there was lack of power, the question can be gone into by the court trying an election petition, can by analogy, be extended to an entry in the electoral roll on the basIS of wrong adjudication of the question of ordinary residence. The concept .of. jurisdiction for the purpose of judicial revie1"i' is one of public policy rather than one of logic. Viewed from the aspect of public poltcy aS reflected in the provisions of the 1950 and 1951 Acts, wrong decision on question of ordinai"y ieSidence for the purpose of entering person's name in the electoral roll should not be treated as jurisdictional error v;hich can b~ reviewed either in Civil Court or before an election tribunal. [5560!. Ani.'itnil;it· '" Foreign Compensation Tribunal, ( 1967) 3 W. R _ L. :.s2~ Hli/lfam Murray Estep v. U.S.A. [1945] 324, U.S. 114 at-page 142. Dis~·t'li!htq jr1dgn1tnt o.f Brandirs J. in Letus N. Crowell v. Charles Benson (i<J31] :!85. lJ.S. :!2 referred to. roll (3) 1s qualified The question whether under the Constitution person and whose name whether he suffers is entered in the from ar..y 1.![ectoral of the disqualifications specified in Sec. 16 can always be qone into by the court tryin_; an election petition. The eletoral roll is never conclusive or final in rl!·•;iect of these matters. · (555H] ·

A.I.It 1971 S.C. page 1348 followed.

(4) Respondent No. 1 had challenged the election of respendents ?\(',,. 4 and S. on the ground that they were not qualified or disqualifieO to be chosen to· fill t~e seat as required by sec. lOO(l)(a) of the 1951 Act. There was no allega-tion that they were disqualified u/s 16 of the 1951 Act. As the names of te5PQn-den~ 4 ~nd 5 were. entered in the electoral roll and' they did not suffer any dis-qual1ficatrons, they were electors within .the definition of s. 2(1) (a) of fae 1951 Act. They were, therefore, qualified to be chosen as candidates u·/s : of the 1951 Act. f556E]

Appeal partly allowed.

CIVIL APl'ELLATE JURISDICTION : Civil Appeal No. 2650, i NCE) of 1972 ..

Appeal by special leave from the judgment and order dated the I.2th/13th October, 1972 of the Gujarat High Court in Election Peti-tion No. 9 of 1972.

B. Sen and /. N. Shroff for the appellant.

S. K. Bisaria, for respondent No. I. The 1 ud)µnent of the Court was delivered by

. ¥ATH~W, !.-In this appeal, by special leave. the questio;1 for consideration 1s whether the findings arrived at by the High O>utt

cl Gujarat in Election Petition No. 9 of 1972 on issues and 5; which were tried as preliminary issues, are correct.

An election fo elect four members of the Council of States from the State of Gujarat was to be held on April 8, 1972.

The appellant aud respondents No. 1 to 5 filed

nominations.

On scrutiny, the returning officer held them to be valid. On April 8, 1972, the election was held at Gandhi Nagar and the appellant aJJd respondents 2, 3 and 5 were declared elected.

On May 1, 1972, respondent no, 1 filed the election petition to declare the elections of the appellant and respondents 2, 3 and

5 l'Oid.

'.f,he main ground urged . in the election petition for declaring the

election of respondents 4 and 5 in .the election petition (respondent 5 and the appellant respectively here) void-with which alone we are concerned in this appeal-was that iliey were not ordinarily resident in the area covered by any parliamentary constituency in the· State of Gujarat and that their names had been illegally entered in the electro! roll of the respective constituency in Gujarat and as they were not 'electors' within the meaning of s. 2(1)(e) of the Representation of P_eople Act, 19 51, they were not eligible to become candidates in the election. Respondent No . .1 also raised -several ·O.ther contentions in support of the declaration prayed for.

The court framed issues No. 1 to 5 and tried them preliminarily and !)ntered findings thereon in · favour of respondent no. 1

Mr. Rajl,!.

In this appeal, the appellant challenges the correctness of the findings on issues no. 1 and 5. These issues are :

'.' 1. Whether there is misjoinder of parties and causes of action?

5. Whether this Court has jurisdiction to decide whether the entries in the electoral roll regarding respondent No. 4 and/ or respondent No. 5 are valid or not ?"

Mr. B. Sen, Counsel for the appellant, did not

address any

".rgument as regards the correctness of the finding on issue No. 1.

We are. therefore, only concerned with the correctness of the finding on issue No. 5. As already stated, the coiltention . on _ the basis of which this issue was raised was that f!)Spondents No. 4 and 5 in the election petition were not ordinarily resident in any of the parliamentary constitutencies in the State of Gujarat and, as they had not fuJfiJled the condition for being entered in the electoral roll of any parliamentary constituency in Gujarat, they were not elec· tors within the meaning of s. 2(1 )(e) of the Representation of the Pe0ple Act, 1951, and were ineligible to stand as candidates in the election.

The High Court on review of the decisions of this Court found that the Court has jurisdiction to go into the question whether respon-dents No. 4 and 5 in the election petition were ordinarily resident in any of the parliamentary constituencies in the State of Gujarat as that was condition precedent to the registering officer getting jurisdiction ro. ,enter their names in the electoral roll. The reasoning of the Court W3$ 'that ordinary residence in constituency was jurisdictional fact

2nd the registering officer cannot, by an erroneous decision, determine the jurisdictional fact wrongly and clothe himself with jurisdiction and enter the names of respondenis 4 and 5 in the election petition in the. electoral roll in violation of the provisions of s. 19 of the Representa-;ion of the People Act, 1950. It is, therefore, necessary to examine the decisions of this Court to see whether the finding of the High Court is justified by those decisions. Before doing so, we think it proper to refer to the provisions of

Before doing so, we think it proper to refer to the provisions of 1he Constitution and the Representation of the People Act, 1950 :md 1951 (hereinafter called the '1950 Act' and '1951 Act' respec-rdvelY) which have beanng on the subject.

Article 326 of the Constitution provides that the electfons to the House of the People and to the Legislative Assembly of every State shall be on the basis ol adult suffrage; that is to say, every person ·,,·ho is .a citizen of India and who is not less than twenty-one years ,,f age on such .date as may be fixed in that behalf by or under any "aw made by the appropriate legislature and is not otherwise dis-q_ualified under the Constitution or any law made by the appropriate "egislature on the ground of non-residence, unsoundness of mind, .:rime or corrupt or illegal practice, shall be entitled to be regis-D 1ered as voter at any such election. Article 327 states that subject :o the provisions of the Constitution, Parliament may by law make provision with respect to all matters relating to, or in connection with. dections to either House of Parliament or to the House or either House of the Legislature of State including the preparation of electoral rolls, the delimitation of constituencies and all other matters tcecessary for securing the due constitution of such House or Houses. Scctio;; 3 of the 1951 Act provides for qualification for member-ohip of the Council of States : "A person shall not be qualified to be chosen as representative of any State or Union' Territorty in the Council of States unless he is an elector for Parliamentary constituency 'n that State or territory". Section 2(1) (e) of that Act defines an ·elector' : "2(1) (e)-'elector' in relation to constituency means person whose name is entered in the electoral roll of that constituency for the time being in force and who is not sub-ject to any of the disqualifications mentioned in s.16 of the Representation of the People Act, 1950' .

. Sect~on 16 of the 1950 Act lays down the disqualifications for 1:~g1stratlon in an electoral roll and it provides that person shall be n!squalified .for registration in an electoral roll if he is not citizen c:t I~d1a ~r 1s of uns?und ll!ind ~nd sl'.lnds so declared by competent c~~1t. or is for the time bemg disqualified from voting under the prc-<tStons _of any law r~lating to corrupt practices and other offences in ~nnect10n with elections. Sub-section (2) of s.16 provides that the name of an:,: person who becomes so disqualified after ·registration shal! forthwith be struck off the electoral roll in which it is included. ~ect1on _19 of the 1950 Act .Jays down the conditions of registration. Jt provides :

"Subject to the foregoing provisions of this Part every person who-'

[ 1974 J 1 s.c.R.

(a) is not less thali twenty-one years of age on the qualify'mg date, and ·

(b) is ordinarily resident in .a C011Btitumcy, shall be entitled

to. be registered in the electinl roll for thai constitutney". Section 30 of the t 950 Act bars the jurisdiction of the Civil Court to ~ntertain or adjudicate .upon any question whether any pers~n is or is not entitled to be registered in an electoral roll for constituency; .or to question the legality of any action ~en by or ur:ider t_he authority -0f an electoral registration officer, or. of any decision given by ;my authority appointed under the Act for the revision of any such roll. Sectio~ lOO(l}(a) of the 1951 Act provides that the eloction of returned candidate can be declared void by the High Court on the ground that on the date of his election, the returned candidate was not qualified to be chosen to fill the seat in question either in the light of the provisions of the Constitution or in the light of the provisions .of the Act.

Under s.lOO(l)(d)(i) and (iv) of the 1951 Act, the election of .a returned candidate can be declared to be void by the High Court on the ground that the result of the election, in so far as it concern; the returned candidate has been materially affected (i) by the improper acceptance ol any .nomination or (ii) by any non-<:ompliauce with the provisions of the Constitution or of the Act or any rules or orders lllQde under .the 1951 Act.

In B. M. Ramaswamy v. B. M. Krishnamurthy([1]) this Court v.as .concerned with the provisions of the Mysore Village Panchayat and Local Boards Act, Act 10 of 1959. Under the provisions of that Act, the relevant part of the electoral roll of the Mysore Legislative Assembly was deemed to be the list of voters for the panchayat consti-tuency and the. se<:retary of the panchayat had to maintaiff duly authenticated separate list of voters -0f the said constituency. It was because of this that this Court w~ required in that case to consider the question of the applicability of the provisions of the 1950 Act. Snbba Rao, J. in delivering the judgment of the Conn said that no civil court bas jurisdiction to question the legality of any decisk>n taken by or under the authority of the electoral registration officer as the terms of s. 30 of the 1950 Act were clear that the action of the registration officer in including the name of the appellant there in the electoral roll, th-Ougb illeg_al, -cannot be questioned in civil court and that it could be rectified only in· the manner prescribed by law or by resorting to any other proper remedy. This Court in effect held that the Court trying an election petition has no jurisdiction to go behind the electoral roll and find out wlietlter the name of any person entered therein was illegally entered.Tn Baidyanath Panjiar v. Sita Ram Mahto,([2 ]) the question was whether in view of the provisions of s.23(3) of the 1950 Act, the mme of any person can be entered in the electoral rQll subsequent to the last date for making nominations and whether that question can be gone into by the court when trying an election petition. Section 23 [ 3) of the 1950 Act provides that no amendment, transposition or deletion of any entry shall be made under s.22 and that no direction for the inclusion of name in the electoral rcll of constitnency ~hall

(I) A.I.R 1963. S. C. 458.

(2) A. T. R. 1970 S. C. 3Ji..

be given after the la.st date for ~aking nominati~ns for an. el~tion. iu that constituency or in the. parliamentary constituency V'.llhin which that constituency is compnsed and before the compleclion of that election. The submission before this Court was that 35 names. were entered in \ltolation of the provisions of s.23(3) and that was w1thQut power and therefore the votes cast by these persons were invalid. ffqJ!e, J. in dclive~ the judgment of the Court said that there was no power in the registering officer to include an}'. name or delete any name in violation of s.23(3), as the sub-section gives maudate to ~e electoral registration officer not to amend, transpose, delete :uiy entry m the cleetoral roll of the constituency after the last date for making nominatioc for election in that constituency and before the completion of that election. Re held that if any name is entered or deleted it was case where there was lack of power and not case where there was an irregular exercise of it and, therefore, the court trying the elec-c tion petition could go into the question whether the.re was violation oli s.23(3} <•r not.

In Kabul Singh v. Kundan Singh, (1) the question before this O:iurt wa, whether the vote of person whose name was entered in the elec-total roll of the constituency after the last date for making the nomi-nation was valid. In view of the earlier decision in Baidyanath v. Sita Ram([2]) this OJurt held that the registering officer bas no power to enter his name in the electoral roll in violation of the mandatory pro-vision of s. 23(3) and as it was case of lack of power, the court trying the election petition had jurisdiction to go into the question. The learned Judge; in the course of the judgment, was careful to add that the right to vote being purely statutory right, the validity of any vote has to be examined on the basis of the provisions of the relevant Acts and that in-view of s.30 of the 1950 Act, Civil O:iurts have no jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled to register himself in the electoral roll ill" constituency or to question the illegality of the action taken by or U!Jder the authority of the ·electoral registration of!icer or any decision given by any authority appointed under that Act for the revision of any such roll. He also said that sections 14 to 24 of the 1950 Act are integrated prqvisions which form complete Code by themselves in the matter of preparation and maintenance of electoral rolls and that entries found in the rolls are final and that they are not open to chal-lenge either "before CiviL Court or before tribunal which consider~ the validity of any election" .. ~P.R. Belaga/i v: J!. D. Jotu('), tlte.qnestion was about the validity of the election of B. D. J atti to the legislature of the State iu question from J amkhandi constit~ncy and one of the contentions was that as he was not an ordinary res1dent in Jamkhandi constituency, he was not an elector in that constituenoy and, therefore, the election was yoid. Grover, J. delivering the judgment of this Court•observed that m order to stand for election to the legislative assembly of State, person must be an elector in any assembly constituency in that State, and he must not be. subiect to any of the disqualifications men-H tioned ins. 16 of the 1950 Act or the disqualifications given in Chapter III of the Act. He also observed that the condition of being ordinarily

(2) A.I.R. 1970 S.C. 314.

(3) A.J.R. 1971 S.C. 1348 •.

Tesident in constituency for the purpose of registration has nothing to do with the disqualifications for registration which are prescribed by s. 16 of the 1950 Act and which alone are relevant to the definition o1' the word 'elector' occurring in s. 2 (1 )( e) of !he Act. He fu!(her sai<! that the entire scheme of the 1950 Act is that entries·made iniiii elec-toral roll of constituency can be challenged only in accordance witk the machinery provided by it and not in any other forum unless some question of violation of the provisions of the Constitution is involved. The Court, therefore, held that the question whether Jatti was ordinarily resident in Jamkhandi constituency during the material period and wa' entitled to be registered in the electoral roll of that constituency could not be the subject of an enquiry except in accordance with the pro· visions of the 1950 Act and that only on the non-compliance with the provisions of the Constitution or of the 1951 Act or of any rules or orders made under that Act coald the High Court declare the election of the returned candidate to be void under clause (l)(d)(iv) of s. 100 of the 1951 Act. The attention of the Court was not drawn to tee decision in Baidyanath v. Sita Ram(!), where it was held that non· rompliance with the provisions of s. 23 (3) of the 1950 Act would result in improper reception, refusal, . rejection of vote which is void and would, therefore, be ground for avoiding the election under s. !OO(l){d)(iii) of the 1951 Act.

In Wopan.sao v. N. L. Odyuo and other.s([2 ]) this Court after refer· ring to the decision in Baidyanath v. Sita Ram(') held that lack of power of the electoral registration officer to register or not to register persons as voters resulting from violation of the mandatory provisions of the relevant statutes might lead to improper reception, refusal or rejection of vote and would, therefore,. be ground for avoiding the election under s. 100(1) (d) (iii) of the 1951 Acl

_Mr. Raju, respondent No. 1 submitted that the right of citizen who fulfils the requirement of law as to age and who is not subject to any disqualifications as provided by law passed by Parliament to be registered as voter, is constitutional right granted by article 326 and the remedy to enforce the right in civil court cannot be taken away by Parliament by law and therefore s. 30 of the 1950 Act is ultra vires the Constitution. He also said that if the decision of the rej!istering .officer regarding ordinary residence in Constituency were to be final on the question of the entitlement of citizen to be entered ·in the electoral ~pll and if he is to have no recourse to civil court in case the officer decides the question wrongl1v. the rule of law which is fundamental postulate of our democratic polity would be seriouslv im· paired and. therefore. imo[1]ied ouster of the iurisdiction of the Court trying an election: petition to go into the question cannot be inferred.

We are not concerned in this with the constitutional validity of s. 30 of the 1950 Act. for the reason that no citizen has sought to enforce his constitutional rie:ht of being rPei.;:tere<l as voter in court and has been denied it. It is wise tradition with court not to adindi-cate constitutional ouestion unless it is absolutely necessary to ' the a;snnsql of the case in hand.

(!) A.I.R. 1970 S.C. 314. (2) A.I.R. 1971 S.C. 21,23.

"Supremacy of law demands that there shall be an opportunity ti} have some court. to decide whether an erroneous rule of law ·was applied aud whether the proceedings in which facts were ;idjudicated were conducted regularly''. This remark was made in St. Joseph Stock Yards Co. v. United States('), by Justice Brandeis. in his dissenting opinion. In that case public utility was challenging rate order as confiscatory. "It is entirely clear that the remark is not the law with respect to much administrative action. The remark may be the law with respect to some adminjstrative action, but if so, that action is no~ clearly identifiable."([2 ]) But the question still remains whether the Brandeis remark has validitv for some types of administrative action, and if so, what types. On this question the opinions are singularly un-helpful. One may surmise that the Brandeis remark has validity in the context in which it was uttered-a public utility rate case in which confiscation was claimed.(') Article 327 gives full power to Parliament subject to the provisions of the Constitution to make laws with respect to all matters relating to or in connection with elections including the preparation of electoral rolls. It was, therefore, open to Parliament to prescribe the mode of the preparation of the electoral roll and say that it is not liable to be challenged except in the manner provided. Pruiia-ment was, therefore,· competent, subject to the provisions 0 of the Constitution, to exclude the jurisdiction of the civil court or the tribunal trying an election petition to go into the question whethet· the name of any person has been entered therein illegally. The right to stand for election is statutory right and the statute can therefore regulate the manner in which the right has to be enforced or the remedy for enforcing it. We think that the 1950 Act provides cooi· plete code so far as the preparation and maintenance of ele<:tQCal rolls are concerned. The Act enacts complete mahim;ty to enquire into claims and obiections as regards registration as voter and for appeals from the decision of the registering officer (see sections 21 to 24 of the 1950 Act both inclusive). Elaborate rules have also been made for inquiry into claims to be registered as voters and for considering and disposing of obiections thereto (see rules 12 to 24 of the Registration of Electoral Rules). The definition of the word 'elector' in s. 2 (1 )( e) of the 1951 Act would indicate that nerson whose name is actually entered in the electoral roll for the time beinii and who is not subiect te any of the disqualifications in s. 16 would be an elector. Any person who is citizen of India and who ha• attained th~ a!(e as prescribed by law, subicct to the minimum as orovided in artiC!e 326, is entitled to be re~stered as voter in the roll of electors .. This is the positive way of exoressing eliglbiJity for re2istration as voter. He should not also be subiect to anv of the di•oualifications orescrihed bv Parliament by law <>n the grouncl• menti,..necl in the artic[1]e. The Parliament has pres-cribed in s. 16 of the 1950 Act t:OO disqualifications.

The question whether person whose name is entered in the elec· toral roll is qualified 1inder the Constitution aiid whether he suffers

(I) 298 u. s. 38.

(') See Kenn~th t)11n D::tvi", "'A.dmini~trative Ltw TreatisP". Vol 4, p. 98.

(3' ~e Kenneth C~ln Davis, uAdministr21tiVe L,,w Trcali~.r. Vcl. 4, p, 102.

from any of the disqualifications specified in s. 16 can always be gone intQ by the Court trying an election petition. The electoral roll is never conclusive or final in respect of these matters (see the decision in P. R. Belagali v. B. D. Jatti (supra). The argument that the question whether person is ordinarily resident in constituency for the pur-pose of registering him as voter is jurisdictional fact and therefore the lj:gistering officer cannot by wrong decision give himself jurisdic-tion to enter his name in the electoral roll, revives all the casuistic· difficulties spawned by the doctrine of jurisdictional fact and the practical difficulty of formulating' test to distinguish jurisdictional fact from other facts. See in this connection the concurring judgment of Justice Frankfurter in William Murray Estep v. U.S.A.(') and the dis· sentiog judgment of Brandeis, J. in Letus N. .Crowell v. Charles Benson("). The basis for identifying jurisdictional facts has never been clarified. And, reflection on many of the reported decisions dealing with the subject will only serve to induce feeling of desperation. We infer an intention to withhold judicial review in the situation with which we are concerned as we think that the Parliament was acting upon the con· victioo that it was dealing with matters which were fully lodged in the exlusive jurisdiction of the registering officers and the appellate authorities.

As already stated, the prayer in the election petition was to declare the electi01i of the respondents 4 and 5 void under sub-section 100(1) (a) for the reason that these respondents were not qualified, or, dis-. qualified to be chosen to fill the seat under the Constitution or the 1951 Act. 'Ihern was no case for respondent No. 1 that these respondents suffered from any of the disqualifications mentioned ins. 16. Nor was there any ground taken in the election petition that they had not the positive qualifications as required by the Constitution or the Acts.

The only question is whether the ground taken in the election peti-tion that since these respondents were not ordinarily resident in any of the Parliamentary constituencies of Gujarat, they had not fulfilled one of the conditions necessary to be satisfied for registration in the electoral roll, can be gone into by the High Court in trying an eleetion petition.

We think that neither the decision of this Court in Baidyanath Panjiar v. Sita Ram Mahto (supra) which took the view that violation of s. 23 (3) of the 1950 Act in entering or deleting the names of persons in the electoral rolls after the last date for makinJ?; nomination relates to lack· of power nor the decision in Wopansao v. N. L. Odyuo (supra) and others· which aloo suggests that where there was lack of power, the question can be gone into by the cour~ trying an election petition, cai:i, by analogy, be e~te~ded to an entry m the eiectoral ~oil on the basis of wron~ adiud1cabon of the question of ord1narv ;es1dence. Thou~h the dividing line between lack of jurisdiction or power and erroneous exercise of it has become thin with the decision of the House of Lords in The Anisminic Case([8 ]) we do not think that the distinc· tion between the two has been completed wiped out. We are aware of

(2) 285 u. s. 22.

(I) 327 u. s. 114, 142.

(3) 1967 (3) W. L. R. 382.

... --· ..

the difficulty in formulating ao exhaustive rule to tell when there is lack of pi>wer and when there is an erroneous exercise of it. The difficulty has arisen because the word "jurisdiction" is ao expression whjch is uSed in a·variety of serises and takes·its colour from its context, (see per Diplock, J. at p. 394 in the Anisminic Case). Whereas the 'pure' theory of jurisdiction would reduce jurisdictional control to vanishing point, the adoption of narrower meaning might result in more useful legaf 8 conc;ept even though the formal struct\)re of law may lose something of its logical S(Ymmetry. "At bottom the problem of defining the con-cept of jurisdiction for purpose of judicial review has been one of public policy rather than one of logic".( 1) And viewed from the aspect of public :{>QU~Y as reflected in the provisions of the 1950 and 1951 Acts, we do not think that wrong decision on· question of ordinary resi· dence for the purpose of entering person's name in the electoral roll should .be treated as jurisdictional error which can be judicially re· viewed either in civil court or before an election tribunal.

And concerned as we are in this case only with the question whether the High Court trying an election petition has jurisdiction t9 try and decide whether these respondents were ordinarily resident in the respective parliamentary constitJ!Cncy in Gujarat, we shOul<l think the matter is concluded' by the decision of this Court in Jatti's case (supra).

The requirement of ordinary residence as condition for registra-tion in the electoral rolls in one created by Parliament by s. 19 of the 1950 Act, and .as we said, we s~ no reason why Parliament should have no power to entrust to an authgtity other than a: court or tribunal trying an election petition the ex&l~ive power to decide the matter finally. We have already referred to.the observation of this Court in Kabul Singh's case (supra) that sections 14 to 24 of the 1950 Act are in· tegrated provisions which form complete code in the matter of prepa-ration and maintenance of electoral rolls. Section 30 of tliat Act makes it clear that civil courts have no power to adjudicate the ques· tion. In these circumstances we do not think that it would be incon-gt11om to infer an implied ouster of the jurisdiction of the court trying an election petition to go into the question. That inference is streng· thened by the fact that under s. lOO(l)(d)(iv) of the 1951 Act the result of the electi~n must have been materially affected by non-compliance with the provisions of the Constitution or of that Act or of the rules, orders made under that Act in order that High Court may declare an eltction to be void. Non-compliance with the provisions of s. 19 of the 1950 Act cannot furnish ground for declaring an elec-G tion void under that clause.

We, therefore, return to the question whether these. respondents

were not qualified or were disqualified to be chosen to fill the seat under the Constitution or the 1950 Act or the 1951 Act. As we said, there was no allegation that they were disqualified under s. 16 of the 1950 Act. Nor was there any ground taken that they were not qusllfied in the sense. of their being not citizens or under the age ·as r~uired. As their names were entered in the electoral roll and as they did not suffe;

the seat

i.l\ S. A. Smith. "Judicial Revie\V of Administrative Action", 2nd Edn., p. 98.

10-Jsrsup. I/74

from any of the disqualifications mentioned in s. 16 of the 1950 Act, they were electors within the definition of the term in s. 2 ( 1) ( e) of the 1951 Act. They were, therefore, qualified to be chosen as candidates under s. 3 of the 1951 Act.

We think that the· Intention of the Parliament to oust the jurisdic· tion of the court trying an election petition to go into the question whether person is ordinarily resident in the constituency in the elec-toral roll of which his name is entered is manifest from the scheme of the 1950 and the 1951 Acts. It would defeat the object of the 1950 Act if the question whether person was ordinarily resident in constituency were to be tried afresh in court or tribunal, trying an election petition.

We reverse the finding of the High Court on issue No. 5 and allow the appeal to that extent and dismiss it in other respects. In the cir· ctimstances we make no order as to costs,

Appeal partly allowed.