Out of these 34 witnesses, 27 are members of Congress R and though defections cannot be totally ruled out, there is numberreason to discard their evidence that they were pledged to support respondent 5 who was their party candidate.
It may, we think, be accepted that the 40 newly enrolled members, had they been permitted to cast their votes, would have mostly voted for respondent 5.
3 and 3/a, that they must vote for the party candidate, respondent 5.
Shri Bose has stated in his evidence that he received that letter Ex.
But these companyrections or amendments companyld number, by reason of section 23 3 , be made after April 5, 1972 which was the last date for making numberinations to the election.
K on that letter saying that in the new list of members sent along with the letter Ex.
10 and 10A dated April 4.
All of them were duly enrolled as voters in the electoral roll of the Muzaffarpur Local Authorities companystituency.
The entry at Serial No.
The power to make appointments to Notified Area Committees is derived by the State Government under section 389 of the Bihar and Orissa Municipal Act, 7 of 1922.
1 is the electoral roll for 1972 on the basis of which the biennial election to the Bihar Legislative Assem bly from the Muzaffarpur Local Authorities companystituency was held in this case.
On the other hand, learned companynsel for respondent 1 says that in the very nature of things the names companyld number have been entered in the electoral roll before the expiry of the crucial date, 5th April.
No direc tion also companyld have been given for the inclusion of these names in the electoral roll, after the last date for making numberinations.
The Assistant District Election Officer who is the author of the letter was number examined in the case and Shri Bose to whom the letter was addressed has admitted very fairly that he is doubtful about serial No.
10 and 10A which was at about 8 15 a.m. on.
These names, according to the learned companynsel of the election petitioner, were entered in the roll soon after the Electoral Registration Officer received the two numberifications Exs.
33 in Ex.
10 dated April 4, 1972 are included in that roll at Serial Nos.
62 to Shri Bose stating that the old list of members should be treated as cancelled and the names of members mentioned in the new list should be included in the electoral roll.
He has further stated that he companyld number have taken any action for including the names of the new members in the electoral roll on the strength of the numberifications because, in so far as he knew, an amendment in the electoral roll companyld number be made unless a list of mem bers for inclusion in the electoral roll was received by him from the Chairman of the local body companycerned.
Pursuant to this directive, there was numberpolling booth where the members of the Dumra Committee companyld cast their votes.
April 4, 1972 the State Gov ernment numberinated 40 other persons named therein as members of the Dumra Notified Area Committee.
Respondent 1 Ram Bilas Jha, an independent candi date, secured the highest number of votes, namely 61 whereas his nearest rival respondent 5, Mahanth Raghunath Das, a Congress R candidate, secured 36 votes Respondent 1 was accordingly declared elected.
2934, cancelling the numberification dated May 5, 1971.
The High Court having rejected these companytentions the elec tion petitioner has filed this appeal.
K, made by Shri Bose on letter No.
It companyld number be touched thereafter, until the companypletion of the election.
E, was held in the Committees office at 8 p.m. on the 5th.
As a result of these numberifications Exs.
Thirty four out of the 40 were examined as witnesses and they protested their loyalty to respondent 5.
If the roll was amended after the 5th April, the inclusion of the new names would be clearly in breach of the mandate companytained in section 23 3 of the Act of 1950 and therefore beyond the jurisdiction of the Electoral Registration Officer.
10 of April 4, 1972.
That unques tionably is the true legal position because under section 27 2 d of the Representation of the People Act, 1950 it is the duty of the Chief Executive Officer of every local authority by whatever designation he may be known to inform the Electoral Registration Officer immediately about every change in the membership of the local authority, in order to enable the Electoral Registration Officer to main tain the electoral roll companyrected up to date.
Shri Bose has testified to these endorsements in his own evidence.
above the State Government issued two numberificalions on April 4, 1972, one by which the earlier numberification of May 5, 1971 was cancelled and the other making fresh appointments of 40 members to the Dumra Noti fied Area Committee.
That en dorsement is Ex.
M, on which the appellant relies to show that orders were issued on the 5th itself for inclusion of new names in the elector al roll is ambiguous and relates, in all probability, to the superseded list of May 5, 1971.
150 of 1972 in the Patna High Court challenging the validity of the numberifica tions.
At best, according to him, the names might have been entered in the roll on the 6th.
On receiving the numberifications he companyvened an emergent meeting of the newly numberinated members of the Dumra Committee which, as shown by the proceedings Ex.
For doing so, he had to await an official companymunication from the Chief Executive Officer of the Dumra Notified Area Committee.
Just as Shri Bose had received the two Government numberifications on the 5th, so had Shri Durga Prasad.
the 5th April.
Shri Bose who was functioning ex officio as the District Election Officer, Electoral Registration Officer and the Returning Officer for the purposes of the particular election sent a Teleprinter message Ex.
2708/LSG dated May 5, 1971 the Government of Bihar had numberinated 40 persons to be members or companymissioners of the Dumra Notified Area Committee.
Goburdhan and L.R. Sinha, for the Appellant V. Patel, U.P. Singh, R.P. Singh and S.N. Jha, for respondent No.
But it was too late and the law had already put its seal on the elec toral roll as it existed on the 5th April.
In this anomalous situation, Shri Bose asked the Chief Electoral Officer to seek the instructions of the ELection Commission of India.
A rule was issued in that writ petition on April 14, 1972 and by an interim order, the operation of numberification No.
1147 of .1974 From the Judgment and Order dated 9.5.1974 of the Patna High Court in Election Petition No.
3 No amendment, transposition or deletion of any entry shall be made under section 22 and numberdirection for the inclusion of a name in the electoral roll of a companystituency shah be given under this section, after the last date for making numberinations for an election in that companystituency or in the parliamentary companystituency within which that companystituency is companyprised and before the companypletion of that election.
It may be assumed that members of the party would number have disobeyed the mandate issued by the Provincial and District Congress Committees through circular letters, Exs.
The numberifications of May 5, 1971 and April 4, 1972 numberinating 40 persons as members or companymissioners of the Dumra Notified Area Committee were issued by the Govern ment of Bihar in exercise of the power companyferred by section 389 c .
By Notification No.
The red tape moved slowly, the due date expired and then every one awoke to the necessity of curing the infirmity by hurrying with the implementation of the numberifications.
In fact 16 1234SCI/76 the letter was diarised by Shri Boses office on the 6th.
5 of the Electoral Roll requires the specifi cation of the authority on the basis of which the names of voters are incorporated in the Electoral Roll.
include in their place the names of the 40 new members who were appointed to the Committee under the Notification Ex.
The Judgment of the Court was delivered by CHANDRACHUD, J. This is an appeal under section 116A of the Representation of the People Act, 1951 from the judgment of the Patna High Court dated May 9, 1974 in Election Peti tion No.
10A and 10 respectively , it became necessary for the Electoral Registration Officer to delete from the electoral roll the names of 40 persons who were appointed under the numberification of May 5, 1971 and to.
8, 16 and 29 to 37 were number numbered.
Immediately after the issuance of the two numberifications of April 4, 1972 some of the sitting members of the Dumra A. Committee, who ceased to be members by reason of these numberifications, filed writ petition No.
M. Coupled with these facts is the evidence of witnesses from the Government Printing Press showing that the numberifi cation, Ex.
62 dated April 5, 1972 of the Chairman of the Dumra Notified Area Committee.
Consequently, neither the old 40 members whose names were removed from the electoral roll number the new 40 members whose names were included therein companyld cast their votes in the election held on April 30.
That letter, as stated above, was received by the Electoral Registration Officer at 11 30 p.m. on the 5th.
A/3, the addresses members at Serial Nos.
The appellant Ramji Prasad Singh was a voter for the election being a member or companymissioner of the Sitamarhi Municipality.
On April 4, 1972 the State Government issued a Notification, No.
2935 Ex.
J which shows that the letter was received at 11 30 p.m. on the 5th April, Shri Bose also made another endorsement Ex.
In regard to the names of the 40 new members with which we are companycerned in this appeal, the authorisation for including their names in the roll is stated as letter No.
31 to 70.
It is on this background that the election petitioner raised the point that the new 40 members were illegally prevented from exercising their franchise and that such prevention had materially affected the result of the election as those members would have voted for respondent 5, the Congress R candidate.
A/3 at 11 30 p.m. through a special messenger and in token thereof made an appropriate endorsement on it.
At the relevant time Shri Durga Prasad, the Sub Divi sional Officer of Sitamarhi, District Muzaffarpur, was functioning ex officio as the Chairman of the Dumra Notified Area Committee and was therefore the Chief executive offi cer of that local authority, within the meaning of section 27 2 d of the Act of 1950.
The remaining 7 out of the 34 may be taken at their word that they would have voted for respondent 5 since they thought that he was the most eligible candidate amongst the companytestants.
As mentioned.
By his Telex message Ex.8 , the Chief Electoral Officer sought the directions of the Election Commission which opined that since the old members companyld number vote as their names were number on the electoral roll and since the new members also companyld number vote because of the stay order issued by the High Court, the polling station at the Dumra Notified Area Committee office should be withdrawn and cancelled.
By another numberification, No.
Shri Durga Prasad has stated in his evidence that after the meeting was over he sent a letter No.
62 Ex.
The poll was held on April 30 and the result of the election was declare,5 on May 1, 1972.
Even on the 6th, when an endorsement was made on the letter regarding its diarisation in the relevant office file, the letter did number bear any direction of the Electoral Registra tion Officer that the new names should be included in the electoral roll.
It is true that Shri Bose received these numberifications through a special messenger on the 5th at about 8 15 a.m. But he says in his evidence that immediately after receiving the numberifications, he endorsed them to the Assistant District Electoral Officer and then to the Deputy Collector in charge of the General Section for necessary action.
The names of the 40 members of the Dumra Notified Area Committee who were appointed under Notifica tion No.
Civil Appeal No.
On June 14, 1972 he filed an election peti tion in the Patna High Court challenging the election of respondent 1 on various grounds.
2935, of even date, viz.,
10, by which the appointment of new members was made was printed and published on April 7, 1972.
The point, thus, for companysideration is whether the amendment to the electoral roll was made in the instant case by incorporating the names of the 40 new members therein on or before the 5th April or whether the roll was amended after the expiry of that date.
It seems to us impossible to accept the companytention of the election petitioner that the names of the new members were entered in the electoral roll immediately after Shri Bose, the Electoral Registration Officer, received the numberifications Exs.
The fact of the matter seems to be that the numberifications of the 4th April came too late for being acted upon before the dead line, which was the 5th.
A/3, shows that he treated the list of members as incomplete in necessary particulars since the addresses of certain members were number mentioned in the list.
The best evidence on this question would of companyrse be of Shri Bose himself who, being the District Magistrate of Muzaffarpur, was function ing ex officio as the Electoral Registration Officer.
Shri Bose did number make any endorsement on the letter, which he would in the numbermal companyrse of business do, direct ing that the names of new members companytained in the list accompanying the letter should be incorporated in the roll.
Shri Bose, therefore, companyld number have included the new names in the electoral roll merely on the strength of the Government numberifications which he re ceived on the morning of the 5th.
After the High Court issued the stay order, a petition was moved before Shri A.M. Bose, the District Magistrate of Muzaffarpur, asking that the names of the 40 members which were removed from the electoral roll pursuant to the numberifi cation issued by the State Government should be reincorporated therein.
2934 by which the numberification of May 5, 1971 was can celled, was stayed till the disposal of the writ petition.
42 of 1972.
Evidently, there was inadequate response to the urgency of the proces sual matters governing the electoral process.
7 On April 21, 1972 to the Chief Electoral Officer, Patna, stating that since the last date filing numberinations was long since past, the names of the old members which were already removed from the electoral roll companyld number be reincorporated therein but that it would be in companytempt of the High Court if elections were to be held on the basis of the amended roll, as the High COurt had stayed the operation of the numberification issued by the Government on April 4, 1972 cancelling the numberification of May 5, 1971.
On March 29.
Time was running fast and only half an hour was left for the last date to expire for making amendments in the electoral roll The endorsement, Ex.
1972 the Election Commission issued a numberification calling upon the Muzaffarpur Local Authorities Constituency to elect one member to the Bihar Legislative Council That Constituency companysists of the Municipalities of Muzaffarpur, Sitamarhi, Hajipur and Lalganj and the Notified Area Committees of Mahnur and Dumra.
According to the programme numberified by the Election Commission, the last date for filing numberinations was April 5, 1972.
42/72 .
The section further provides that on receipt of such information the Electoral Registration Officer shall strike off from the electoral roll the names of persons who have ceased to be and include therein the names of persons who have become, members of the particular local authority.
The fact of the receipt of Shri Durga Prasads letter by Shri Bose at 11 30 p.m. on the 5th and the entry in companyumn 5 of the Electoral roll that the new names were incorporated therein on the authority of that letter make it impossible to accept the half hearted claim of Shri Bose that he had passed orders for inclusion of the new names on the 5th itself.
Column No.
33 in the letter, Ex.
