Holding

A declaration by a holder of a declared office under Section 20(4) and (5) of the Representation of the People Act, 1950 is deemed correct and cannot be questioned unless the Electoral Registration Officer possesses evidence to the contrary; in the absence of such evidence the enquiry is illegal and must be quashed.

Summary

Dr. Manmohan Singh, then a Union Cabinet Minister, filed Form No.1 under the Registration of Electors Rules, 1960 stating that but for his office he would be ordinarily resident in the Dispur Assembly constituency of Assam. The Election Commission questioned this declaration, initiated an enquiry and the Chief Election Commissioner issued an order with adverse inferences, directing the Electoral Registration Officer to continue the enquiry. The High Court quashed the enquiry, holding that the statement of a holder of a declared office under Section 20(4) and (5) of the Representation of the People Act, 1950 is conclusive unless the officer has evidence to the contrary. The Supreme Court examined the statutory provisions and held that no such evidence existed and that the Chief Election Commissioner’s order violated natural justice, so the enquiry and related notices were illegal and were quashed. Consequently, the appeal by the Election Commission was dismissed.

Issues considered

Whether a statement made by a holder of a declared office under Section 20(4) and (5) of the Representation of the People Act, 1950 can be questioned without evidence to the contrary.
Whether the Electoral Registration Officer may initiate an enquiry into the ordinary residence of such a holder absent contrary evidence.
Whether the Chief Election Commissioner’s order directing the enquiry violated principles of natural justice and fair play.
Interpretation of the term 'ordinary resident' in the context of a declared office holder.

Legislation cited

Registration of Electors Rules, 1960s. Rule 7
Representation of the People Act, 1950s. 20(4), s. 20(5), s. 20(7), s. 31

Subjects

ordinary residencedeclared officeelectoral rollenquirynatural justiceRepresentation of the People ActElection Commission of IndiaRajya Sabha election

Judgment

A ELECTION COMMISSION OF INDIA AND ANR.
v.
DR. MANMOHAN SINGH AND ORS.

DECEMBER I, 1999

B [S.P. BHARUCHA, R.C. LAHOTI AND N. SANTOSH HEGDE, JJ.]

Election:

C
Representation of the Peoples Act, 1950-S. 20 (4),(5) and (7)-
"Ordinary resident"-Holder of a declared office-Statement regarding his
•-
"ordinary residence"-Electoral Registration officer not possessing any
evidence to the contrary -Enquiry questioning correctness of declaration of
"ordinary residence"-Validity of-Held, cannot be questioned unless there
is evidence to the contrary -Enquiry regarding "ordinary residence"
D quashed-Registration of Electors Rules, I 960.
Respondent No.I was elected to Rajya Sabha from 52-Dispur Legislative
Assembly constituency in Assam. He filed Form No.I prescribed under Rule
7 of the Registration of Electors Rules, I960 stating that but for his holding
the office as union cabinet Minister he would have been 'ordinarily resident'
E in the said constituency at the address mentioned by him. Doubting his .
declaration, notices were issued and an enquiry was initiated. Respondent No.I
challenged the correctness of the enquiry by filing a writ petition which was
allowed by High Court. Hence the present appeal.

Dismissing the appeal, the Court
F
HELD: I.1. Enquiry and all notices and orders pertaining to respondent
No.l's "ordinary residence" stand quashed. [79-CJ

1.2. Under sub-section (4) of section 20 of Representation of the People
Act, I 950, a person who holds a declared office is deemed by law to be, on any
G date, an ordinary resident of a constituency in which he would ordinarily have
resided but for the fact that he holds such declared office. For this purpose,
by reason of sub-section (5) of sec. 20, the statement of the holder of the
declared office, made in the form and varified as required, must be accepted
as correct in the absence of evidence to the contrary". It is, therefore, clear
H that the statement of the holder of a declared office is not always to be accepted
70
ELECTION COMMISSION OF INDIA v. DR. MANMOHAN SINGH 71

as correct. It can be questioned, but only if the Electoral Registration officer A
has "evidence to the contrary". Therefore, to question the correctness of the
statement as to his ordinary residence made by the holder ofa declared office,

- the Electoral Registration officer must be in possession of evidence to the
contrary. That is a pre-requisite for the non-acceptance of the statement of
tne holder of a declared office. If the Electoral Registration officer has such B
evidence, he must inform the holder of a declared office accordingly, and state
the substance of such evidence so that the holder of the declared office may
rebut it in the course of the enquiry on facts that must follow. The enquiry
has to be "decided" on the facts of the case; its quasi-judicial character is
clear. [77-F, H; 78-A-B]
c
1.3. In the instant case, respondent No.1 was at the relevant time a
person holding an office to which the provisions of sub-sections ( 4), (5) and
(7) of Section 20 applied. The enquiry was initiated by the letter of respondent
No. 3 whereby respondent No.I was asked to furnish evidence in support of
his "claim of ordinary residence as stated in Form No. I". The claim in Form
No. I was filed by respondent No. I when he was already a Cabinet Minister D
and thus the holder of a declared office. His statement therein could, having
regard to the true interpretation of sub-sections (4) and (5) of Section 20,
have been questioned by respondent No. 3, only if he was possessed of evidence
to the contrary and respondent No. 3 had intimated to respondent No.I that
fact and the substance of such evidence. There is nothing to indicate that E
respondent No. 3 had any evidence to the contrary, and he certainly did not so
state in his letter. In fact, he called upon respondent No. I to adduce evidence.
Statement of Respondent No.I in Form No.1 could not, therefore, have been
questioned and the enquiry in this behalf is bad in law. [77-C; 78-C, D, E)

1.4. In any event, the enquiry cannot be allowed to proceed having F
regard to the order of the then Chief Election Commissioner. The order
referred to the findings of investigations that had been carried on, of which
respondent No.1 had no notice. It drew "inferences" therefrom that were
very adverse to respondent No.I. It then directed respondent No. 3 to keep
in view and pay due regard to the facts brought out in the order while G
conducting the enquiry and passing a final order thereon. Having regard to
the fact that respondent No. 3 was a subordinate of the then Chief Election
Commissioner and, given the nature of inferences drawn by the latter without
giving respondent No. I the opportunity to defend, there can be no doubt that
allowing the enquiry to proceed would be detrimental to fair play and the
interests of respondent No. I. [78-H; 79-A-B) H

'
72 SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.

A 2. As regards the Transfer Cases, the matters need not be transferred
and they should be decided by the High Courts concerned in accordance with
the law laid down in the foregoing paragraphs. (79-F)

B
Etc.
CIVIL APPELLATE Jl)RISDICTION : Civil Appeal No. 12573 of 1996
-
From the Judgment and Order dated 3.1.96 of the Assam High Court at
Gauhati in C.R. No. 1087 of 1994.

C
P.P. Rao, K. Paiasaran, T.L.V. Iyer A.K. Ganguli, A.M. Khanwilkar, Ms.
Puran Kurnari, S.K. Mendiratta, B. Parthasarathi, K. Swamy, Rajiv Nanda C.V.S.
Rao, (B.K. Prasad) for P. Parmeswaran, Ms. Prabha Swami, Anip Sachthey,
Ms. Sandhya Rajpal, Mrs. Hemantika Wahi, Ms. Sumita Hazarika, Kailash
-
Vasdev and W.C. Chopra for the appearing parties .

The Judgment of the Court was delivered by

BHARUCHA, J. This appeal is filed by the Election Commission of
D India, by special leave, against the judgment and order of a learned Single
Judge of the Gauhati High Court on a writ petition filed by the first respondent.

The first respondent was registered as an elector in the New Delhi
Parliamentary Constituency when, on 21st June, 1991, he became a Minister
in the Union Cabinet. By reason of the provisions of Article 75 (5) of the
E Constitution it was requisite that he be elected to either House of Parliament
within six months.
On 27th August, 1991 the first respondent preferred claim in Form No.
6 prescribed under Rule 26 of the Registration of Electors Rules. 1960 for
inclusion of his name in the electoral roll of 52-Dispur Legislative Assembly
F Constituency in the State of Assam ("the said constituency") stating that his
place ofresidence was c/o Dr. Hema Parbha Saikia, Ward No. 34, Sarumataria
Hill, P.O. Assam Sachivalaya, Dispur. He stated therein, "My name may have
been included in the electoral roll in U.T. Delhi State in which I was ordinarily
resident earlier at the address mentioned below and, if so, I request that the
G same may be excluded from that electoral roll". The third respondent, the
concerned Electoral Registration Officer, directed that the claim be posted on
the notice board of his office, inviting objections within seven days, On 11 111
September, 1991 the first respondent's name was registered in the said
constituency. On 26th September, 1991 the first respondent was elected to the
Rajya Sabha from the State of Assam. On 29th September, 1991 his name was
H deleted from the Delhi electoral roll.
ELECTION COMMISSION OF INDIA''· DR. MANMOHAN SINGH [BHARUCHA, J.J 73
On 29th September, 1992 the appellant forwarded to the first respondent A
Form No. I, applicable to the holder of a declared office, for his statement as
to the place of his ordinary residence. On 7th June, 1993 the first respondent

- . filed that form stating that, but for his holding the office of a Union Cabinet
Minister, he would have been ordinarily resident at the aforementioned address
in the area of the said constituency. On 3th September, 1993 the first respondent B
was called upon to furnish evidence in support of the said statement about
his ordinary residence. On 18th September, 1993 the third respondent informed
the first respondent that it has been decided to include his name on the rolls
of the said constituency.

On 22nd and 28th December. 1993 the appellant wrote to the Chief C
Electoral Officers of all States and Union Territories about the malpractice of

- registering persons on the electoral rolls of States and Union Territories where
they were not ordinary resident, and instructed them to look into the matter.

Pursuant to such instruction, the third respondent wrote to the first
respondent on 2nd February, 1994, thus: D
"Whereas the Election Commission has cast doubt on your declaration
of ordinary residence in S. 75, of 52 Dispur LAC. I am to request you
to kindly furnish evidence in support of your claim of ordinary
residence as stated in Form No.I earlier submitted."
(Emphasis supplied) E
This was followed by another communication on 16th February. 1994.
On 18th and 22nd February, 1994 the first respondent's· Private Secretary
sought time to reply.

On I st March, 1994 the then Chief Election Commissioner passed an F
order with specific reference to the first respondent. He referred to the facts
and to investigations in his case in some detail. He then stated:

"40. From the facts set out above the following inferences would
seem to arise :
G
(a) That when on 29.8.1991 Shri Manmohan Singh filed his claim
application for being included in the electoral rolls of 52-Dispur
Assembly Constituency in the State of Assam he knew that he
was registered as an elector in Delhi being an ordinarily resident
of Delhi and not of Assam. The address c/o Dr. Hem Prabha
Saikia, wife of the Chief Minister of Assam, was acquired only H
74 SUPREME COURT REPORTS (1999) SUPP. 5 S.C.R.
....
A with a view to getting registered as an elector in Assam.
(b) That the declaration under Form 1 under rule 7 of the Registration
of Electors Ru le, 1960 read with Section 20( 4) of the'
Representation of the People Act, 1950, filed by Dr. Manmohan
Singh during the intensive revision of rolls in 1993 did not get
B established on cross checking.
(c) The very text of the order passed by the ERO for including his
name in the. electoral rolls during 1993 shows that it was an order
passed under duress from his superior officers who had no
jurisdiction in this statutory matter.
c (d) That the Returning Officer who conducted the election of Shri
0
Manmohan Singh to the Council of State on 26.9.1991 was
guided by entry of the name of Shri Manmohan Singh in the
electoral roll and therefore could not have entertained any
challenge against the validity of the election on the basis of
illegality committed during the registration of Shri Manmohan
D
Singh as an elector.
(e) That while filing the claim petition in Form 6 under Rule 13(1)
and Rule 26(1) of the Registration of electors Rules, 1960 on
29 .8.1991 and Form 1 under Rule 7 of the Registration of Electors
Rules, 1960 read with Section 20(4) of the Representation of the
E People Act, 1950, Shri Manmohan Singh and his supporter Shri
Narain Chandra Kakoti both committed the office of wilfully
making declaration which they could not have believed to be
true to their own knowledge. Such declaration would attract the
penal provisions of section 31 of the Representation of the
F People Act, 1950.
(t) That District Election Officer of Guwahati and the Chief Electoral
Officer 9f the State of Assam have clearly gone beyond their
jurisdiction by directing the inclusion of the name of Shri
Manmohan Singh in the electoral rolls of 52-Dispur AC.
G
41. In the above circumstances the Commission, in exercise of the
'~
powers, inter alia of superintendence, direction and control of the
preparation of electoral rolls, vested in it by virtue of Article 324 of ·
the Constitution, the powers to issue specific or general directions
under section 22 of the Representation of the People Act, 1950 and
H all other powers enabling it in this behalf, directs as follows:
ELECTION COMMISSION OF INDIA 1•. DR. MANMOHAN SINGH [BHARUCHA, J.) 75
(a) That the Electoral Registration Officer of 52-Dispur Assembly A
Constituency should expedite the enquiry initiated by him with
his notice No.DC(ELE)48/93/152(A) dated the 2nd February, 1994.
Such enquiry should be completed as expeditiously as possible
and every effort should be made by the ERO to conclude it by
the 31st March, 1994.
B
(b) While conducting the above enquiry and passing the final order,
the ERO should keep in view and pay due regard to the facts
brought out in the foregoing paragraphs of this order.
(c) If.the ERO ultimately comes to the decision that Shri Manmohan
Singh and/or Shri Narain Chandra Kakoti made a wilfully false C
declaration for getting the name of the former registered as an
elector in Assam in 1991and/or1993, he should initiate necessary
legal proceedings before the competent court of law against the
aforesaid person(s) under section 31 of the Representation of
the People Act, 1950 forthwith.
D
42. The Commission is examining all the facts and intends to take
further legal action."

On 3rd March, 1994 the first respondent filed his reply before the third
respondent. By an order of the third respondent of the same date, further
evidence was called for. On 16th March, 1994 the first respondent questioned E

- the correctness of the enquiry pertaining to his being an ordinary resident in
the area of the said constituency by filing the writ petition upon which the
order under appeal was passed.

The writ petition was allowed in part by the High Court, holding thus:
F
"87. Accordingly, this writ application is disposed of holding as follows:

(i) That the "ordinary resident" in a constituency as mentioned in
the Representation of the People Act, 1950 shall mean a habitual
resident of that place or a resident as a matter of fact in regular,
normal or usual course. It means an usual and normal resident G
of that place. The residence must be permanent in character and
not temporary or casual. It must be as above for a considerable
time, he must have the intention to dwell permanently. He must
have a settled abode at that place for a considerable length of
time for which a reasonable man will accept him as the resident H
76 SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.

A of that state.
(i.t) A person holding a declared office as provided by the Act of
1950 can file a declaration in Form No.6 and such a declaration
shall have to be accepted as correct and the burden does not
lie on such a person to produce evidence to the contrary; that
B burden lies on the authority who disputes it, regarding holding
of declared office.
(1i.t) Apart from enquiry regarding holding a declared office, such a
declaration made by the holder of declared office cannot be
subjected to any enquiry as the statute by creat!ng a deeming
provision/fiction has given that·privilege/right to the holder of
c a declared office to make declaration regarding "ordinarily
residence" of a place and that must be deem(ld to be final.
(iv) The orders dated 1.3.94 (Annexure-J), notice dated 2.2.94 and •
16.2.94 (Annexure-D and F) and the order dated 3.3.94 (Annexure-
I) shall stand quashed being without authority of law and having
D been issued without jurisdiction, and in violation of laws as
indicated above."

The appellant accepts the correctness of the finding of the High Court
in regard to the meaning of the words "ordinary resident". It questions the
E correctness of its finding in regard to the effect of a declaration of the place
of his "ordinary residence by a person holding a declared office and,
consequently, the quashing of the orders dated lst March and 3rd March,
1994 and notices dated 2nd February and 16th February, 1994.

Section 20 of the Representation of the People Act, 1950 defines
p. "ordinarily resident". Sub-sections (4), (5) and (7) thereof are relevant here;
they read thus :

"(4) Any person holding any office in India declared by the President
in consultation with the Election Commission to be an office to which
the provisions of this sub-section apply, shall be deemed to be
G ordinarily resident on any date in the constituency in which, but for
the holding of any such office, he would have been ordinarily resident
on that date."
"(5) The statement of any such person as is referred to in sub-section
(3) or sub-section (4) made in the prescribed form and verified in the
H prescribed manner, that but for his having the service qualification or
'
ELECTION COMMISSION OF INDIA 1•. DR. MANMOHAN SINGH [BHARUCHA, J.) 77
but for his holding any such office as is referred to in sub-section (4) A
he would have been ordinarily resident in a specified place on any
date, shall, in the absence of evidence to the contrary be accepted as
correct."

"(7) If in any case a question arises as to where a person is ordinarily
resident at any relevant time, the question shall be determined with B
reference to all the facts of the case and to such rules as may be made
in this behalf by the Central Government in consultation with the
Election Commission."
That the first respondent was at the relevant time a person holding an
office to which the provisions of these sub-sections applied is not in dispute. C
Rule 7 of the Registration of Electors Rules, 1960 states :

"7. Statement under section 20 (J)-Every person who holds a
declared office or has a service qualification and desires to be registered
in the roll for the constituency in which, bµt for holding such office
or having such qualification, he would have been ordinarily resident, D
shall submit to the registration officer of the constituency, a statement
in such one of the Forms 1, 2, 2A and 3 as may be appropriate.
(2) Every statement submitted under sub-rule (1) shall be verified in
the manner specified in the Form.
E
(3) Every such statement shall cease to be valid when the person
making it ceases to hold a declared office or, as the case may be, have
a service qualification."

By reason of sub-section (4) of Section 20 aforequoted, a person who
holds a declared office is deemed by law to be, on any date, an ordinary F
resident of a constituency in which he would ordinarily have resided but for
the fact that he holds such declared office. For this purpose, by reason of
sub-section (5) of Section 20, the statement of the holder of the declared
office, made in th~ form and verified as required, must be accepted as correct
"in the absence of evidence to the contrary". Where the question of such a G
person's ordinary residence does arise, it has, by reason of sub- section (7)
of Section 20, to be "decided by reference to the facts of the case". (The sub-
section speaks of rules in this behalf but none have been framed.)

It is, therefore, clear that the statement of the holder of a declared office
is not always to be accepted as correct. It can be questioned, but only if the H
78 SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.

A Electoral Registration Officer has "evidence to the contrary". Therefore, to
question the correctness of the statement as to his ordinary residence made
by the holder of a declared office, the Electoral Registration Officer must be
in possession of evidence to the contrary. That is a pre-requisite for the non-
acceptance of the statement of the holder of a declared office. If the Electoral
B Registration Officer has such evidence, he must inform the holder of a declared
office accordingly, and state the substance of such evidence so that the
holder of the declared office may rebut it in the course of the enquiry on facts
that must follow. The enquiry has to be "decided" on the facts of the case;
its quasi-judicial character is clear.

C The question, then, is whether the enquiry against the first respondent
can be proceeded with. It will be seen that the enquiry was opened by the
letter ?fthe third respondent dated 2nd June, 1994 whereby the first respondent
was asked to furnish evidence in support of his "claim of ordinary residence
as stated in Form No. I". Form No. I relates to the declaration of his ordinary
residence by a person holding a declared office. The claim in Form No. I was
D filed by the first respondent on 7th June, I 993 when he was already a Cabinet
Minister and thus the holder of a declared office. His statement therein could,
having regard to the true interpretation of Section 20, sub-sections (4) and
(5), have been questioned by the third respondent only if the third respondent
was possessed of evidence to the contrary and the third respondent had
E intimated to the first respondent that fact and the substance of such evidence.
/
There is nothing to indicate that the third respondent had any evidence to
the contrary, and he certainly did not so state in his letter dated 2nd June,
1994. In fact, he called upon the first respondent to adduce his evidence. The
first ·respondent's statement in ·Form No.I could not, therefore, have been
questioned and the enquiry in this behalf is bad in law.
F
It was contended on behalf of the appellant that the order of the Chief
Election Commissioner dated I st March, 1994 and the notices subsequent
thereto showed that the enquiry also related to the statement of the first
respondent about the place of his ordinary residence in Form No. 6, that is
G to say, when he was not the holder .of a declared office, and therefore, the
enquiry should be allowed to proceed. In the first place, the enquiry commenced
with the third respondent's letter dated 2nd February, 1994 whereby the first
respondent was asked to furnish evidence "in support of your claim of
ordinary residence as stated in Form No. I", that is to say, in support of the
statement made by the first respondent as the holder of a 'declared office. In
H the second place, and in any event, the enquiry cannot be allowed to proceed
ELECTION COMMISSION OF INDIA'" DR. MANMOHAN SINGH [BHARUCHA, J.) 79

having regard to the order of the then Chief Election Commissioner dated 1st A
March, 1994. The order referred to the findings of investigations that had
been carried on, of which the first respondent had had no notice. It drew
"inferences" therefrom that were very adverse to the first respondent. It then
directed the third respondent to "keep in view and pay due regard to the facts
brought out in the foregoing paragraphs of this order" while conducting the B
enquiry and passing the final order thereon. Having regard to the fact that
the third respondent was a subordinate of the then Chief Election Commissioner
and, given the nature of the inferences drawn by the latter without giving to
the first respondent the opportunity of a defence, there can be no doubt that
allowing the enquiry to proceed would be detrimental to fair play and the
interests of the first respondent. The enquiry and all notices and orders C
pertaining thereto must stand quashed.

It shall be permissible for the appellant, if so advised, to issue to the
first respondent, now that he is no longer the holder of a declared office, a
notice for correcting the electoral roll upon which the entry in regard to the
first respondent's ordinary residence in the said constituency was made. It D
shall be open to the first respondent to raise all available pleas in reply. The
decision in the matter of such enquiry shall be taken without reference to the
observations of the then Chief Election Commissioner in the order dated 1st
March, 1994.

The appeal fails and is dismissed. E
There shall be no ordeq as to costs.

T.P. (C) Nos. 79-81 of 1995.

The matters in regard to which the Transfer Petitions are filed need not F
now be transferred to this Court. They shall be decided by the concerned
High Courts in accordance with the law laid down in the above judgment. The
Transfer Petitions are disposed of accordingly.

S.V.K. ~ppeal dismissed and petitions disposed of.