Holding

The election was not void; the published electoral roll is final and the petition was dismissed for lack of material facts.

Summary

The appellant, Laxmi Kant Bajpai, challenged the election of Hazi Yaqoob to the Uttar Pradesh Legislative Assembly on the ground that votes from 21 localities, allegedly outside the delimitation order, were improperly included in the electoral roll, violating Sections 100(1)(d)(iii) and (iv) of the Representation of the People Act, 1951. The High Court dismissed the petition for lack of a cause of action, and the appellant appealed. The Supreme Court held that the electoral roll, once published, is final and cannot be altered by the Election Commission without a fresh delimitation order, and that the power of delimitation rests with the Delimitation Commission, not the Election Commission. The Court also emphasized that an election petition must disclose clear material facts, which the appellant failed to do. Consequently, the election was not declared void and the appeal was dismissed.

Issues considered

Whether the inclusion of voters from the 21 localities, allegedly outside the delimitation order, renders the election void under Section 100(1)(d)(iii) and (iv) of the Representation of the People Act, 1951.
Whether the Election Commission has the authority to alter the electoral roll in the absence of a fresh delimitation order.
Whether courts can interfere with the finality of an electoral roll once it is published.
Whether the election petition disclosed sufficient material facts to constitute a cause of action.
Whether the State Government's powers under the Uttar Pradesh Municipalities Act, 1994, affect the delimitation of the constituency.

Legislation cited

Constitution of Indias. Article 324, s. Article 325, s. Article 329(b)
Registration of Electors Rules, 1960s. Rule 22, s. Rule 24
Representation of the People Act, 1950s. 21, s. 22, s. 23, s. 23(3), s. 24, s. 2(b), s. 9(1)(b)
Representation of the People Act, 1951s. 100(1)(d)(iii), s. 100(1)(d)(iv), s. 30, s. 9(1)(b)

Subjects

election petitionelectoral rolldelimitationRepresentation of the People Actmaterial factsvoid electionElection CommissionHigh CourtSupreme Court

Judgment

[2009) 16 (AODL.) S.C.R. 526

A LAXMI KANT BAJPAI
V.
HAZI YAQOOB & ORS.
(Civil Appeal No. 4201 of 2008)
DECEMBER 15, 2009
B
[D.K. JAIN AND H.L. DATTU, JJ.]

Election Laws - Election to State Assembly- Challenged
on the ground that electoral roll containing names from 21
C localities were in contravention of order of de/imitation -
Election petition dismissed by High Court - On appeal, held:
Election not liable to be declared void - Electoral roll was
prepared on the basis of delimitation order - Courts cannot
decide any issue relating to issuance or revision of an
D electoral roll - The remedy lies in the procedure laid down in
the prescribed rules - In absence of a fresh order of
de/imitation issued by delimitation Commission, Election
Commission had no power to change the electoral roll for the
constituency - Election petition also did not disclose any
E material facts - Representation of the People Act, 1951 - ss.
100 (10)(d) (iii) and (iv); 9(1)(b), 30 and 80- Delimitation Act,
1972 - s. 11(1)(b) - Uttar Pradesh Municipalities Act, 1994
- ss. 11-8 and 11-C - Registration of Electors Rules, 1960 -
rr. 22 and 24 - Constitution of India, 1950 - Article 325.
F Respondent No. 1 was elected to U.P. Legislative
Assembly, from Meerut Assembly Constituency.
Appellant (the defeated candidate) challenging his
election, filed election petition before High Court. The plea
of the election petitioner was that the election should be
G declared void u/s. 100(1)(d) (iii) and (iv) of Representation
of the People Act, 1951, as votes had been cast from 21
localities which were included in the constituency, in
contravention of the published order of delimitation. High
Court dismissed the petition holding that the petition did
H 526
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS. 527

not disclose any cause of action. Hence the present A
appeal.

Dismissing the appeal, the Court

HELD: 1.1. Once an electoral roll is published, it
becomes the final electoral roll of the constituency. B

- Therefore, the electoral roll containing the names of
people residing in the 21 localities, is the final and valid
electoral roll for the Meerut assembly constituency. The
only alteration to the electoral roll can be brought about
by following the procedure prescribed in the relevant C
rules. [Para 17] [541-A-B]
1.2. Comparing Section 11(1)(b) of the Delimitation
Act and Section 9(1 )(b) of the Representation of the
People Act, 1950, makes it amply clear that Section 11
0
, (1)(b) of the Delimitation Act further qualifies Section 9
- " (1)(b) of the Representation of the People Act, 1950 and
provides for a clear restriction on the powers of the
Election Commission in as much as the power of the

- Election Commission shall not extend to changing the
boundaries or areas or extent of any constituency. The
power of the Election Commission as envisaged in the
E

above mentioned Sections, flows from the order
,,_ published by the Delimitation Commission. Therefore, it
• 4 is clear that the power of delimitation of constituencies
vests in the Delimitation Commission and the preparation F
of electoral rolls vests in the Election Commission. The
communication dated 24.3.2007 by the Under Secretary
of the Election Commission of India to the Chief Electoral
Officer, Uttar Pradesh, is merely a reiteration of the above
provision. In the absence of a fresh order of delimitation G
issued by the Delimitation Commission, the Election
' Commission had no power to change the electoral roll for
the constituency. [Paras 23 and 24] [544-F-H; 545-H; 546-
A-B]
H
528 SUPREME COURT REPORTS [2009) 16 (ADDL) S.C.R.

A Election Commission of India v. Mohd. Abdul Ghani
1995) 6 sec 721, relied on.

1.3. Section 11-B of Uttar Pradesh Municipalties Act,
1994 reveals that the State Government has the power to
break up every municipality into territorial constituencies
B
to be called 'wards'. Section 11-C of the Act clearly
~
empowers the State Government to alter or amend the
t.
delimitation carried out earlier. There is no bar on the
State Government to increase the area of a ward. Hence
it cannot be said that delimitation is to be carried out only
c by the Delimitation Commission as the notifications
issued by the Delimitation Commission in 1973 and 1976
specify that the extent of 381 Meerut constituency shall
be the same as the Meerut municipality. Had the intention
of the Commission been to restrict the extent of the
D constituency to as it existed on the date of publication
of such notification, it should have been clearly specified.
There has been no subsequent amendment to the
'
~

-
E
notifications and there has been no fresh delimitation
carried out. The notification is still in force in its original
form. Therefore the natural corollary to be derived is that
the territory of 397 Meerut Assembly constituency (now
-
381 Meerut Assembly constituency) shall comprise all that
area falling in the different wards mentioned in the
Delimitation Order as it exists on the date of making of
F the nomination for the election in question. Therefore
contention of the appellant concerning Article 325 of the
Constitution is nullified in the light of the power vested
in the State Government under the U.P Municipalities Act.
[Para 27] [547-H; 548-A-E]
G 2. The courts cannot decide any issue relating to .,,
issuance or revision of an electoral roll. The remedy lies \ '
in the procedure laid down in the prescribed rules. There
is scope for challenging the contents of the electoral roll.
However, once an electoral roll is finally published, it
H becomes final and then no court can interfere with the
LAX.Ml KANT BAJPAI v. HAZI YAQOOB & ORS. 529

; said publication of the electoral roll and it shall be the A
electoral roll of the constituency. [Para 19] (541-A-B; 542-
A]
B.M Ramaswamy v. B.M Krishnamurthy and Ors. AIR
1963 SCR479; Shyamdeo Pd. Singh v. Nawal Kishore 8
Yadav (2000) 8 SCC 46, relied on.

- Nripendra Bahadur Singh v. Jai Ram Verma and Ors.
(1978) 1 sec 208, followed.

3.1. An election petition ·must clearly and c
unambiguously set out all the material facts which the
appellant is to rely upon during the trial, and it must
reveal a clear and complete picture of the circumstances
and should disclose a definite cause of action. In the

- •
.
absence of the above, an election petition can be
summarily dismissed. In the present case, the averments
of the appellants in the election petition do not disclose
any definite cause of action. (Paras 35 and 38] (553-C-D;
0

554-C]
Samant v. George Fernandez AIR 1969 SC 1201; E
Virender Nath Goutam v. Satpa/ Singh and Ors. (2007) SCC
617; Hari ShankarJain v. Sonia Gandhi AIR 2001 SC 3689;
Mahadeorao S/ukaji Shivankar v. Ramaratan Bapu and Ors.
2004 (7) SCC 181; V.S. Achutanandan v. P.J Francis (1999)
2 SCR 99; Azhar Hussain v. Rajiv Gandhi AIR 1986 SC F
1253, relied on.

3.2. There has been no default on the part of any of
the authorities, so as to render any votes void. There has
been no violation of any of the provisions of the Act or
the rules framed thereunder. The communication issued G
by the Election Commission of India dated 24.3.2007
cannot be construed as any direction on the part of the
Commission. The averments also do not disclose any
material facts. The main concern of the appellant in effect
H
"
530 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.

A is the addition of the 21 colonies into the Meerut
constituency and not in relation to addition or deletion of
names in the electoral roll. But yet there has been no
specific pleading in this regard in the eiection petition.
The pleading should have been with respect to the said
B inclusion of the 21 colonies into the Meerut municipality
constituency which was later incorporated into the 381
Meerut Municipality constituency. In the absence of such
pleadings, it can safely be said that the election petition
+.
-
does not disclose any material facts. and, therefore, High
c Court was right in summarily dismissing the election
petition. [Para 38] [554-F-H; 555-A-C]

Shyamadeo Parsad Singh vs. Nawal Kishore Yadav
(2000) 8 sec 46, relied on.

D Shankar Babaji Sawant v. Sakharam Vithoba Salunkhe
1965 (2) SCR 403; Baidyanath Panjiar v. Sitanath Mahato
(1969) 2 SCC 447; KabulSingh v. Kundan Singh and Ors.
•- -
(1969) 2 SCC 452; Rampakavi Rayappa Belagali v. B.D
Jatti and Ors. (1970) 3 SCC 147; Harl Prasad Mulshanker
E Trivedi v. V.B Raju and Ors. (1974) 3 SCC 415; Mohinder
Singh Gill and Anr. v. The Chief Election Commissioner,
New Delhi and Ors. (1978) 1SCC405; Lakshmi Chandra Sen

F
and Ors. v. A.K.M. Hassan Uzzaman and Ors. (1985) 4 SCC
689; lndrajit Baruah and Ors. v. Election Commissioner of
India and Ors. AIR 1986 SC 103, distinguished.
.
-
Case Law Reference:
AIR 1963 SCR 479 Relied on. Para 18
(2000) 8 sec 46 Relied on. Para 20
G ...
(1978) 1 sec 208 Followed Para 21 -I_

1995) 6 sec 121 Relied on. Para 23
AIR 1969 SC 1201 Relied on. Para 28
H (2001) sec 617 Reiied on. Para 29
LAX.Ml KANT BAJPAI v. HAZI YAQOOB & ORS. 531

2004 (7) sec 181 Relied on. Para 31 A

AIR 2001 SC 3689 Relied on. Para 32
(1999) 2 SCR 99 Relied on. Para 33
AIR 1986 SC 1253 Relied on. Para 34 B
1965 (2) SCR 403 Distinguished. Para 40
,-! (1969) 2 sec 447 Distinguished. Para 41
(1969) 2 sec 452 Distinguished. Para 41
c
(1970) 3 sec 147 Distinguished. Para 42
(1974) 3 sec 415 Distinguished. Para 43
(1978) 1 sec 405 Distinguished. Para 44

"
.... (1985) 4 sec 689 Distinguished. Para 45 D

AIR 1986 SC 103 Distinguished. Para 46
(2000) s sec 46 Distinguished. Para 47
,.,. .
CIVIL APPELLATE JURISDICTION : Civil Appeal No. E
4201 of 2008.

From the Judgment & Order dated 12.5.2008 of the High
.."' Court of Judicature at Allahabad in Civil Misc. Application No.
283769 of 2007 in Election Petition No. 8 of 2007.
F
Ravi Shanker Prasad, Abhay Prakash Sahay, Puja
- Priyadarshani, Chander Shekhar Ashri for the Appellant.

The Judgment of the Court was delivered by
G
H.L. DATTU, J. 1. Mr. Hazi Yaqoob-respondent is the
j elected candidate in the elections held from 381 Meerut
Assembly Constituency to the U.P. Legislative Assembly. His
elections had been called in question before the Allahabad High
Court by the defeated candidate by filing Election Petition under
H
532 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R

A the provisions of Representation of People Act, 1951. Petition
is rejected by the Allahabad High Court by its order dated
12.5.2008.

2. We may now briefly state the material facts : The
Delimitation Commission of India under Section 10(1) of the
8
Delimitation Act, 1972, had issued an order in respect of the
delimitation of Parliamentary and Assembly constituencies of
+.
the State of Uttar Pradesh and published the same by issuing
a notification dated 8th December, 1973. Table B in the
notification provides the territorial constituencies into which the
c State of Uttar Pradesh was divided for the purpose of election
to the Legislative Assembly and the extent of each such
constituency. Table 8 also shows the extent of 397 Meerut
assembly constituency (now 381 Meerut constituency) to be the
same as Meerut Municipality (excluding wards 1 to 3, 14 and
~
D 15). This order was also a part of the Delimitation of ~

Parliamentary and Assembly Constituencies Order, 1976,
issued by the Election Commission of India.

3. On 17.3.2007, notification for electing a member to the
E U.P Legislative Assembly from 381 Meerut Assembly
constituency was issued. The polling for the constituency was
held on 13.4.2007 and the results were declared on 11.5.2007.
Respondent no.1 , Hazi Yakoob was declared elected by a )'

margin of 1089 votes. ~

F 4. Election Petition before the High Court.
'
The appellant had challenged the election of respondent
no.1 by filing an election petition before the Allahabad High
Court. The appellant mainly relied on the following grounds in
G support of the prayer in the election petition. They are :
\._
.
(i) The result of the election in favour of the elected
candidate was materially affected by the improper
reception of 23,431 void votes as they were from
21 localities/colonies/mohallas outside the territorial
H
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS. 533
[H.L. DATIU, J.]
...
boundaries of the constituency. A

(ii) The aforesaid 21 localities, did not fonn part of 381
- Meerut constituency as delimited by the 1973
Delimitation Order and yet were included within the
constituency and the voters from these colonies
B
were included in the electoral roll of the
constituency.
,_.
(iii) The delimitation can be carried out only by the
Delimitation Commission and yet in contravention
./ of the published order of delimitation, the 21 c
colonies have been included in the constituency.
Therefore the elections is liable to be declared void
on the grounds of Section 100 (1)(d) (iii) and (iv).
of the Representation of Peoples Act, 1951.
). D
'- (iv) The communication dated 24.3.2007 by the Under
Secretary of the Election Commission of India to
the Chief Electoral Officer, Uttar Pradesh, was that
the geographical boundaries delimited during the
~.

previous delimitation cannot undergo any change,
E
unless the new delimitation order is implemented.
It is further stated that, on 26.3.2007 the Officer on
Special Duty, Chief Electoral Officer, U.P forwarded
; the aforesaid letter to the District Election Officer,
-->
" Meerut, informing him that there cannot be any
change in the territorial boundaries of the
F
Legislative Assembly constituency until the
implementation of the new delimitation order and
this amounts to a direction on the part of the
Election Commission of India, and despite such
direction the names of the voters from the 21 G
,..}- localities continued to be included in the electoral
roll of 381 Meerut Assembly constituency and were
permitted to vote in the elections. Therefore, the
election of returned candidate should be declared
as void on the ground that the result of the election H
·~
I
•
534 SUPREME COURT REPORTS [2009) 16 (ADDL) S.C.R.
..
A insofar as it concerns the returned candidate has
been materially affected by improper reception of
votes and by non-compliance of the provisions of
the Constitution and the Rules made under the 1951
•
Act.
B
5. After service of notice of election petition, the respondent
no.1 did not choose to file written statement, but filed an ~. '·
application under Order VII Rule 11 of the Code of Civil
Procedure to reject the election petition, primarily on the
ground, that no cause of action has been made out on the
c basis of the averments made in the election petition and
Jl"
therefore the election petition is liable to be dismissed. Further,
according to respondent No.1, the averments made by the
appellant cannot be ground for declaring an election to be void
under Section 100 ( 1) (d) (iii) and (iv) of the Representation of >\
D Peoples Act, 1951. -·
6. Order passed by the High Coult :

The High Court after a detailed discussion of the
pleadings of the parties has come to the conclusion that election
E
petition does not disclose any cause of action. The material fact
to be included in the election petition should have been in
relation to the non-inclusion of the 21 localities in the Meerut )

municipality constituency. Accordingly, the High Court has '
dismissed the election petition for non-disclosure of cause of
F action. Hence, the appeal. It may be mentioned that there was
no appearance on the side of the respondents. However, after
the matter was heard and reserved for judgment, the learned
counsel Sri Praveen Jain has entered appearance and with the
permission of the court, has filed his written submissions. The
G same are taken on record.
~.-

7. Contentions on behalf of the appellant:

Mr. Ravi Shankar Prasad, the learned senior counsel for
the appellant submitted that in the election petition filed, the
H
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS. 535
[H.L. DATTU, J.]
appellant has sufficiently indicated the cause of action and the A
material facts, though the provision of the Act is not mentioned
and therefore, it is futile to contend that the appellant has not
spelt out the cause of action in the pleadings. In aid of his
submission the learned senior counsel has placed reliance on
the observations made by this Court in the case of Shri B
... Shankar Babaji Savant v. Shri Sakharam Vithoba Salunkhe
and Ors., 1965 (2) SCR 403. It is further submitted that if the
electoral roll was prepared in violation of Article 173 of the
Constitution of India, the same is a nullity and, therefore, the
result of the election in so far as it concerns the elected c
candidate has been materially affected. It is further contended
that Section 2(b) of the Representation of People Act, 1950
provides that "Assembly Constituency" means a Constituency
f provided by law for the purpose of election to ttie legislative
' Assembly of a State. It shall be filled by persons chosen by
D
direct election from Assembly Constituencies and Section 7(3)
of the Act provides that the extent of each Assembly
Constituency shall be as determined by the orders of the
Delimitation Commission made under the provisions of
Delimitation Act, 1972 and therefore, the electoral roll for
elections to the State Legislative Assembly must relate only to E
the extent of the territorial division as determined by the
"
" Delimitation Commission. The geographical extent of the
Assembly Constituency cannot be changed nor can any area
be added therein or excluded therefrom by any authority except
the Delimitation Commission. The learned senior counsel would F
submit, that, the electoral roll of an Assembly Constituency must
be confined to the area or extent of the concerned Assembly
Constituency and cannot include any area outside the territorial
limits of that Assembly Constituency nor can voters of any such
,,.;. other area vote in that Assembly Constituency and in the instant G
case, voters from outside the territorial boundaries of 381
Meerut Assembly Constituency were permitted to vote in the
elections held and though their votes were void, they were
improperly and illegally received as valid votes and the same
H
536 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R

A has materially affected the result of the election in so far as it
concerns the returned candidate, and therefore, his election is
liable to be declared void under Section 100(1)(d)(iii) and (iv)
of Representation of the People Act, 1951.

8. Contentions on behalf of respondent:
8
The learned counsel Shri Praveen Jain for the respondent
submitted that the Election Petition is liable to be dismissed
as it does not disclose any cause of action. It is further
submitted, that, the election petition is based on the ground that
C certain areas outside the territory of 381 Meerut Assembly
Constituency were not only included in this constituency but the
voters of these areas were also allowed to vote in the elections
and this has materially affected the result of the election insofar
as it concerns the returned candidate and thus the dispute in
D the present election petition is about the addition of some area
in the territorial constituency and not about any addition or
deletion of names in the electoral roll and this cannot be a
ground for declaring the election of the returned candidate to
be void under Section 100(i)(d)(iii) and (iv) of the
E Representation of Peoples Act, 1951. It is further contended
that the election petition can be filed only if some illegality
contemplated under Section 100 of the Act is found to have
been committed during the process of the election but in the
present case, the alleged illegality that has been pointed out
•
F relates to a stage prior to the commencement of the process
of election. It is submitted that the court trying an election petition
has no jurisdiction to go behind the electoral roll and find out
whether the name of any person was illegally entered and any
entry in the electoral roll of a constituency cannot be amended
G or deleted after the last date of making nomination for the
election in that constituency. In aid of his submission, reliance
is placed on several decisions of this Court. The reference will
be made to those decisions while considering the contentions
canvassed by the learned counsel for the parties.

H
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS. 537
[H.L. DATIU, J.]
9. Discussion: A

Section 83 of the Representation of Peoples Act, 1951
deals with the contents of an election petition. Section 83 (1)
of the Act reads:-

"An election petition:- B

'~ (a) shall contain a concise statement of the material
facts on which the appellant relies;

(b) shall set forth full particulars of any corrupt practice
that the appellant alleges, including as full a
c
statement as possible of the names of the parties
alleged to have committed such corrupt practice
and the date and place of the commission of each
! such practice; and
D
(c) shall be signed by the appellant and verified in the
manner laid down in the Code of Civil Procedure,
1908 for the verification of pleadings."

10. Sub-section (d) of Section 100 of the Representation E
of Peoples Act, 1951 which deals with grounds for declaring
election to be void reads:-
,.,
'~
"(d) that the result of the election, in so far as it concerns
a returned candidate, has been materially affected-
F
(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests
of the returned candidate by an agent other than his
election agent, or G
~l-
(iii) by the improper reception, refusal or rejection of
any vote or the reception of any vote which is void,
or

(iv) by any non-compliance with the provisions of the H
538 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.

A Constitution or of this Act or of any rules or orders
made under this Act."

11. The power to carry out delimitation of the
constituencies has been vested with the Delimitation
Commission constituted under the Delimitation Act, 2002. The
8
object of the Act is to provide for the re-adjustment of the
allocation of seats in the House of People to the States, the ~
total number of seats in the legislative assembly of each State,
the division of each State and each Union Territory having a
C legislative assembly in to territorial constituencies for elections
to the House of People and legislative assemblies of the States
and Union Territories and for matters connected therewith.
Section 8 of the Act provides for re-adjustment of number of
seats, Section 9 of the Act provides for Delimitation of
constituencies, Section 10 of the Act provides for publication '
D of orders and their date of operation by Commission in the
Gazette of India and in the official Gazettes of the State
concerned and on such publication, every such order shall have
the force of law and shall not be called in question in any court.
Section 11 of the Act mandates that the Election Commission
E shall maintain delimitation orders up-to-date.

12. The appellant relies on the purported communication
dated 24.3.2007 by the Under Secretary of the Election "
Commission of India to the Chief Electoral Officer, Uttar
F Pradesh. The effect of the communication was that the
geographical boundaries delimited during the previous
delimitation cannot undergo any change, unless the new
delimitation order is implemented. On 26.3.2007 the Officer on
Special Duty, Chief Electoral Officer, U.P forwarded the
G aforesaid letter to the District Election Officer, Meerut informing
him that there cannot be any change in the territorial boundaries ~ -
of the Legislative Assembly constituency until the
implementation of the new delimitation order. The contention
of the appellant is that this amounts to a direc:iun on the part
of the Election Commission of India, and despite such direction
H
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS. 539
[H.L. DATIU, J.]
the names of the voters from the 21 localities continued to be A
included in the electoral roll of 381 Meerut Assembly
constituency. The appellant further contends that if the total
number of votes received by respondent no.1 from these
localities were to be excluded, the results oi' the election would
have been different, and hence the results of the election have B
been materially affected.

13. The process and procedure of preparing electoral rolls
is governed by the Registration of Electors Rules, 1960. Rule
24 of the said rules reads:-
c
"24. Special provision for preparation of rolls on re-
delimitation of constituencies.--

(1) If any constituency is delimited a new in accordance
t with law and it is necessary urgently to prepare the roll for 0
such constituency, the Election Commission may direct
that it shall be prepared--

(a) by putting together the rolls of such of the existing
constituencies or parts thereof as are comprised within the
new constituency; and E

(b) by making appropriate alterations in the arrangement,
serial numbering and headings of the rolls so compiled.

(2) The roll so prepared shall be published in the manner F
specified in rule 22 and shall, on such publication, be the
electoral roll for the new constituency."

14. The Rule provides that if any constituency is delimited
a new in accordance with law and if it is necessary to prepone
the roll for such constituency, the election commission may G
1
,. direct that it shall be prepared by putting together the rolls .of
such of the existing constituencies or parts thereof as are
comprised within the new constituency. The rolls so prepared
requires to be published in the manner provided in Rule 22 of
the Rules. On such publication of the rolls, the same shall be H
540 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R

A the electoral roll for the new constituency.

15. In the present case, there has been no re-delimitation
of the Meerut constituency carried out by the Delimitation
Commission under the auspices of the Delimitation Act. The
earlier order published by the Commission is still (n force. As
8
stated above, delimitation of parliamentary and assembly
constituencies is the exclusive domain of the Delimitalion ..
Commission. The Election Commission's power with respect ·
to delimitation of constituencies extends to correcting any
mistakes which might have crept in the delimitation order.
c
16. In other circumstances, however, once an electoral roll
is published, it becomes the final electoral roll of the
constituency. This is also specified in Rule 22 of the specified
rules which reads:-
D
"22. Final publication of roll.-

(1) The registration officer shall thereafter--

(a) prepare a list of amendments to carry out his decisions
E under rules 18, 20, 321 and 21A and to correct any clerical
or printing errors or other inaccuracies subsequently
discovered in the roll;

(b) publish the roll, together with the list of amendments,
by making a complete copy thereof available for inspection
F
and displaying a notice in Form 16 at his office; and

(c) subject to such general or special directions as may
be given by the Election Commission supply, free of cost,
two copies of the roll, as finally published, with the list of
G amendments, if any, to every political party for which a
symbol has been exclusively reserved by the Election \ ..
Commission.

(2) On such publication, the roll together with the list of
H amendments shall be the electoral roll of the constituency."
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS. 541
[H.L. DATTU, J.]
17. Hence, the electoral roll published becomes the A
electoral roll of the constituency, and therefore the electoral roll
containing the names of people residing ir the 21 localities, is
the final and valid electoral roll for the Meerut assembly
constituency. The only alteration to the electoral roll can only be
brought about by following the procedure prescribed in the B
relevant rules. In this context it is also pertinent to mention
0 Section 30 of the Representation of Peoples Act, 1950. The
section reads:-

"No civil court shall have jurisdiction--
c
(a) to entertain or adjudicate upon any question whether
any person is or is not entitled to be registered in an
electoral roll for a constituency; or

.J (b) to question the legality of any action taken by or under D
the authority of an electoral registration officer, or of any
decision given by any authority appointed under this Act
for the revision of any such roll."

18. The wordings of the section are very clear and it
conveys the meaning that a High Court cannot set aside an E
election on the ground that though the name of a candidate is
in the list, it had been included therein illegally. This court in the
I "" case of B.M Ramaswamy v. B.M Krishnamurthy and others
(AIR 1963 SCR 479), has stated that "the terms of the section
are clear and the action of the electoral registration officer in F
including the name of the appellant in the electoral roll, though
illegal, cannot be questioned in a civil court : but it could be
rectified only in the manner prescribed by law, i.e., by preferring
an appeal under rule 24 of the Rules, or by resorting to any other
appropriate remedy." G
,_}

19. It is clear from the above discussion that the Courts
cannot decide any issue .relating to issuance or revision of an
electoral roll. The remedy lies in the procedure laid down in the
prescribed rules. There is scope for challenging the contents
H
542 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R

A of the electoral roll. However, once an electoral roll is finally
published, it becomes final and then no court can interfere with
the said publication of the electoral roll and it shall be the
electoral roll of the constituency.

20. In this regard, reference can be made to the
B
observations made by this Court in the case of Shyamdeo Pd.
Singh v. Nawal Kishore Yadav, [(2000) 8 SCC 46]. The Court
has observed that inclusion of person or persons in the ~~

electoral roll by an authority empowered in law to prepare the
electoral rolls though they were not qualified to be so enrolled
c cannot be a ground for setting aside an election of a returned
candidate under Sub-clause (iii) or (iv) of Clause (d) of Sub-
section ( 1) of Section 100 of the Representation of Peoples
Act, 1951. The court has observed:-

D ''The electoral rolls may contain-error and they may remain ~

to be corrected or the appeals in respect thereof may be
pending, the electoral roll effective for the ensuing election
must achieve a finality at a given point of time (such as
the last date prescribed for filing the nominations). It has
E to be remembered that right to contest an election, a right
to vote and a right to object to an ineligible person
exercising right to vote are all rights and obligations
created by Statute. They are not the rights in common law. ...
Bringing into existence Houses or Institutions responsible
F for functioning of a democracy have a vital constitutional
objective to achieve as they are so essential for the
functioning of a democracy. A breach of any statutory right
or obligation should not come in the way of the process
directed towards fulfilling the high objective of bringing into
existence of a House or Institution contemplated by
G
Constitution as enabling democratic functioning of the
country." ~ '

The Court has further observed:

H "To sum up we are of the opinion that inclusion of person
~
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS. 543
[H.L. DATTU, J.]

or persons in the electoral roll by an authority empowered A
in law to prepare the electoral rolls, though they were not
qualified to be so enrolled, cannot be a ground for setting
aside an election of a returned candidate under sub-clause
(iii) or (iv) of clause (cf) of sub-section (1) of Section 100
of the Representation of the People Act, 1951. A person B

...
•
4
enrolled in the electoral list by an authority empowered by
law to prepare an electoral roll or to include a name therein
is entitled to cast a vote unless disqualified under sub-
sections (2) to (5) of Section 62 of the Representation of
the People Act, 1951. A person enrolled in the electoral c
roll cannot be excluded from exercising his right to cast
vote on the ground that he did not satisfy the eligibility
requirement as laid down in Section 19 or 27(5) of the
Representation of the People Act, 1950."

./ 21. The Constitution Bench of this court in the case of D
; Nripendra Bahadur Singh v. Jai Ram Verma and ors., [1978]
1 sec 208, wherein it was held that the finality of the electoral
roll cannot be challenged in an election petition even if certain
~
irregularities had taken place in the preparation of the electoral
w roll or if subsequent disqualification had taken place and the E
electoral roll had on that score cannot be corrected before the
last hour of making nominations. The court further stated that
"- after that dead line the electoral roll of a constituency cannot
• be interfered with and no one can go behind the entries except
for the purpose of considering disqualification under Section F
16 of the 1950 Act.

22. Section 11 of the Delimitation Act, 2002 reads:-

"11. Power to maintain delimitation orders up-to-date.- (1)
.... The Election Commission may, from time to time, by G
-~>- notification in the Gazette of India and in the Official
Gazette of the State concerned,--

(a) correct any printing mistake in any of the orders made
by the Commission under section 9 or any error arising H
' ' ....
----....._______

544 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.
;.

A therein from an inadvertent slip or omission; and

(b) where the boundaries or name of any district or any
territorial division mentioned in any of the said orders are
or is altered, make such amendments as appear to it to
be necessary or expedient for bringing the orders up-to-

-
B
date, so, however, that the boundaries or areas or extent
of any constituency shall not be changed by any such
notification. •
(2) Every notification under this section shall be laid, as
c soon as may be after it is issued, before the House of the
People and the Legislative Assembly of the State
concerned."

It is pertinent to consider Section 9 (1) (b) of the
Representation of People Act, 1950. It reads:- •
D
..
"(1) The Election Commission may, from time to time, by
notification published in the Gazette of India and in the
Official Gazette of the State concerned,- ...
.,.
E ............................................................................................................
(b) where the boundaries or name of any district or any
territorial division mentioned in the Order are or is altered, ,,
make such amendments as appear to it to be necessary
or expedient for bringing the Order up-to- date."
F
23. Comparing Section 11(1)(b) of the Delimitation Act and
Section 9 (1)(b) of the Representation of People Act, 1950,
makes it amply clear that Section 11 (1 )(b) of the Delimitation
Act further qualifies Section 9 ( 1)(b) of the Representation of .._
G People Act, 1950 and provides for a clear ~restriction on the
i ,-
powers of the Election Commission in as much as the power
of the Election Commission shall not extend to changing the
boundaries or areas or extent of any constituency. The power
of the Election Commission as envisaged in the above
H mentioned sections, flows from the order published by the
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS. 545
...l.
[H.L. DATIU, J.]
Delimitation Commission. A three Judge Bench of this court A
in the case of Election Commission of India v. Mohd. Abdul
Ghani [(1995) 6 SCC 721] has explained the aforesaid
principle. In this case the issue was that the river Ganges had
started changing its course in 1957, that ultimately resulted in
causing 16 villages to be located towards the east bank of the B
river. After this change these villages came to form part of the
territorial division named as District Maida. The State
Government made the con?equential changes in the description
of these villages when they became part of District Maida for
all administrative purposes. In spite of this geographical change c
resulting in inclusion of these 16 villages in the territorial division
of District Maida for administrative purposes, the position of
these villages remained unaltered for election purposes and
they continued to form part of 8-Jangipur Parliamentary
Constituency in accordance with the Delimitation Order of 1976 D
made on the basis of the previous census held ii) 1971. The
residents of these villages filed a writ petition claiming that o
as a result of the above geographical change, these 16 villages
should now form part of the Maida Parliamentary Constituency
since they have become a part of District Maida instead of the
earlier District Murshidabad. It was claimed that this is the duty E
cast on the Election Commission to make such a change by
virtue of Section 9(1) (b) of the Representation of the People
Act, 1950. However this court placing reliance of the import of
the wordings of Section 9 (1)(b) of the Representation of
Peoples Act, 1950 and Section 11 (1)(b) of the Delimitation F
Act, observed that the power of the Election Commission as
envisaged by the sections extended to merely update the
Delimitation Order by making the necessary changes on
account of subsequent events to correct the description in the
Delimitation Order which has become inappropriate and G
therefore this power cannot extend to alteration of the
boundaries or area or extent of any constituency as shown in
the Delimitation Order.

24. Therefore, it is clear that the power of delimitation of H
546 SUPREME COURT REPORTS [2009] 16 (ADOL.) S.C.R.

A constituencies vests in the Delimitation Commission and the
preparation of electoral rolls vests in the Election Commission.
The communication dated 24.3.2007 by the Under Secretary
of the Election Commission of India to the Chief Electoral
Officer, Uttar Pradesh, is merely a reiteration of the above
B provision as rightly observed by the High Court. In the absence .,,,_
of a fresh order of delimitation issued by the Delimitation
Commission, the Election Commission had no power to ~-.

change the electoral roll for the constituency.

c by the24.Delimitation
The notification dated 8th December, 1973 published
Commission mentions that the extent of 397
Meerut Assembly constituency shall be Meerut Municipality
excluding Ward Nos. 1, 2, 3, 14 and 15 :

"MEERUT DISTRICT
'>(_
..
D
···································································
396. Meerut

E
Cantonment : Wards 1 to 3, 14 and 15 in Meerut
Municipality, Meerut Cantonment, Kanker Khera T.A.,
Abdullapur T.A., Buxer Khera T.A., and L.Cs., 36- Nagla
-
Tashi Kasampur, 37-Sikhera, 38- Behchola, 43-
.¥
Aurangshahpur Diggi, and 44- Abdullapur in Meerut
pargana in Mee rut tahsil. 397. Meerut : Mee rut
F Municipality, (excluding wards 1 to 3, 14 and 15)"

26. The notification published on 16th January 1976 also
stated the same for 397 Meerut constituency (now 381
constituency). It is the appellanfs contention that localities which
were outside the territorial boundaries of the Mee rut
G constituency at the time of publication of these notifications,
were subsequently included. In light of this contention it is
.. .
pertinent to look at the relevant provisions of the U.P
Municipalities Act, 1994 :

H Section 11-8 of the Act reads:-
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS. 547
,I.
[H.L. DATIU, J.]

"11-8. Delimitation Order.-- A

(1) The State Government shall, by order, determine--

(a) the number of wards in to which each municipal area
shall be divided for purposes of elections to the
municipality; B
,--1
(b) the extent of each ward;

(c) [omitted]

(d) the number of seats to be reserved for the Scheduled c
Castes, the Scheduled Tribes, the backward classes and
the women.

(2) The draft of the Order under Sub-section (1) shall be
.I
published in the manner prescribed for a period of not less D
than seven days.

(3) The State Government shall consider any objections
filed under Sub-section (2) and the draft Order shall, if
necessary, be amended, altered oro modified accordingly
and thereupon it shall become final."
E

/' Section 11-C of the Act reads:-
'
"11-C. Amendment of Delimitation Order.--
F
(1) The State Government may, after consulting the Board ~
~

concerned, by a subsequent Order, alter or amend the final •
order under Sub-section (3) of Section 11-B.

(2) For the alteration or amendment of any order Sub-
',.,..,.. section (1 ), the provisions of Sub-sections (2) and (3) of G
Section 11-8 shall mutatis mutandis apply."

27. The sections clearly reveal that the State Government
has the power to break up every m{Jnicipality into territorial
constituencies to be called ·wards'. Section 11-C clearly
H

- '"I"
548 SUPREME COURT REPORTS [2009) 16 (ADDL.) S.C.R

A empowers the State Government to alter or amend the
delimitation carried out earlier. There is no bar on the State
Government to increase the area of a ward. Hence the
contention of the appellant that delimitation is to be carried out
only by the Delimitation Commission fails as the notifications
B issued by the Delimitation Commission in 1973 and 1976
specify that the extent of 381 Meerut constituency shall be the
same as the Meerut municipality. Had the intention of the h
Commission been to restrict the extent of the constituency to
as it existed on the date of publication of such notification, it
c should have been clearly specified. There has been no
subsequent amendment to the notifications and there has been
no fresh delimitation carried out. The notification is still in:J force
in its original form. Therefore the natural corollary to be derived
is that the territory of 397 Meerut Assembly constituency (now
D
381 Meerut Assembly constituency) shall comprise all that area
falling in the different wards mentioned in the Delimitation Order
"-
as it exists on the date of making of the nomination for the
election in question. In this regard we agree with the finding of
the High Court. Therefore the contention of the appellant
concerning Article 325 of the Constitution is nullified in light of
E the power vested in the State Government under the U.P
Municipalities Act.

28. Material facts and cause of action: '.
F An election petition has to disclose all the material facts
on which the election petitioner relies to establish the existence
of a cause of action. Material facts essentially refer to all the
relevant facts which a appellant relies upon during the course
of the trial. In the absence of material facts and insufficient cause
of action, the election petition is liable to be dismissed. There
G
is a catena of cases decided by this court which have .; ' .
discussed as to what constitutes material facts for the purpose
of Section 100 of Representation of Peoples Act, 1951. In the
case of Samant v. George Fernandez (AIR 1969 SC 120.1), it
was stated:-
H
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS. 549
[H.L. DATIU, J.]
"The word 'material' shows that the facts necessary to A
formulate a complete cause of action must be stated.
Omission of a single material fact leads to an incomplete
cause of action and the statement of claim becomes bad.
The function of particulars is to present as full a picture of
the cause of action with such further information in detail B
as to make the opposite party understand the case he will
.... have to meet. There may be some overlapping between
material facts and particulars but the two are quite distinct.
Thus the material facts will mention that a statement of fact
(which must be set out) was made and it must be alleged c
that it refers to the character and conduct of the candidate
that it is false or which the returned candidate believes to
be false or does not believe to be true and that it is
calculated to prejudice the chances of the appellant. In the
y particulars the name of the person making the statement, D
with the date, time and place will be mentioned. The
material facts thus will show the ground of corrupt practice
and the complete cause of action and the particulars will

.. give the necessary information to present a full picture of
the cause of action. In stating the material facts it will not
do merely to quote the words of the section because then
E
the efficacy of the words 'material facts' will be lost. The
... fact which constitutes the corrupt practice must be stated
and the fact must be correlated to one of the heads of
corrupt practice. Just as a plaint without disclosing a
proper cause of action cannot be said to be a good plaint, F
so also an election petition without the material facts
relating to a corrupt practice is no election petition at all.
A petition which merely cites the sections cannot be said
to disclose a cause of action where the allegation is the
making of a false statement." G
. ,.+
29. In the case of Virender Nath Gautam v. Satpal Singh
and ors. [(2007) sec 617], this court explained:-

"18. All material facts, therefore, in accordance with the
H
550 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.

A provisions of the Act, have to be set out in the election
petition. If the material facts are not stated in a petition, it
is liable to be dismissed on that ground as the case would
be covered by Clause (a) of Sub-section (1) of Section 83
of the Act read with Clause (a) of Rule 11 of Order VII of
B the Code. The expression 'material facts' has neither been
defined in the Act nor in the Code. According to the
dictionary meaning, 'material' means 'fundamental', 'vital',
'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential',
.
'pivotal', indispensable', 'elementary' or 'primary'. [Burton's
c Legal Thesaurus, (Third edn.); p.349]. The phrase 'material
facts', therefore, may be said to be those facts upon which
a party relies for his claim or defence. In other words,
'material facts' are facts upon which the plaintiffs cause
of action or the defendant's defence depends. What
particulars could be said to be 'material facts' would '
D
depend upon the facts of each case and no rule of
universal application can be laid down. It is, however,
absolutely essential that all basic and primary facts which
must be proved at the trial by the party to establish the
existence of a cause of action or defence are material facts
E and must be stated in the pleading by the party."

30. The court further went on to explain the difference '
between 'material facts' as envisaged in S.ection 83 (1) (a) of
the Representation of Peoples Act, 1951 and 'full particulars'
F as envisaged in Section 83 (1) (b) of the Act dealing with
allegations of corrupt practices employed during an election.

"21 .. A distinction between 'material facts' and 'particulars',
however, must not be overlooked. 'Material facts' are
G
primary or basic facts which must be pleaded by the ~ . '

plaintiff or by the defendant in support of the case set up
by him either to prove his cause of action or defence.
'Particulars', on the other hand, are details in support of
material facts pleaded by the party. They amplify, refine
and embellish material facts by giving distinctive touch to
H
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS. 551
[H.L. DATTU, J.]
the basic contours of a picture already drawn so as to make A
it full, more clear and more informative. 'Particulars' thus
ensure conduct of fair trial and would not take the opposite
party by surprise."

31. In the case of Mahadeorao Sukaji Shivankar v. B
Ramaratan Bapu and Ors. [(2004) 7 SCC 181], it was held :

... "(6) Now, it is no doubt true that all material facts have to
be set out in an election petition. If material facts are not
stated in a plaint or a petition, the same is liable to be
dismissed on that ground alone as the case would be c
covered by Clause (a) of Rule 11 of Order VII of the Code.
The question, however, is as to whether the appellant had
set out material facts in the election petition. The
expression "material facts" has neither been defined in the
Act nor in the Code. It may be stated that the material facts D
are those facts upon which a party relies for his claim or
defence. In other words, material facts are facts upon which
the plaintiff's cause of action or defendant's defence
depends. What particulars could be said to be material
facts would depend upon the facts of each case and no E
rule of universal application can be laid down. It is,
however, absolutely essential that all basic and primary
"' facts which must be proved at the trial by the party to
establish existence of cause of action or defence are
material facts and must be stated in the pleading of the F
party.

(7) But, it is equally well settled that there is distinction
between "material facts" and "particulars". Material facts
are primary or basic facts which must be pleaded by the
petitioner in support of the case set up by him either to G
,- i
prove his cause of action or defence. Particulars, on the
other hand, are details in support of material facts pleaded
by the party. They amplify, refine and embellish material
facts by giving finishing touch to the basic contours of a
picture already drawn so as to make it full, more clear and H
552 SUPREME COURT REPORTS [2009) 16 (ADDL.) S.C.R.

A more informative. Particulars ensure conduct of fair trial
and would not take the opposite party by surprise."

32. In the case of Hari Shankar Jain v. Sonia Gandhi (AIR
2001 SC 3689) it was held:-
B "Material facts required to be stated are those facts which
can be considered as materials supporting the allegations
made. In other words, tj1ey must be such facts as would
afford a basis for the allegations made in the petition and ...
would constitute the cause of action as understood in the
c Code of Civil Procedure, 1908. The expression 'cause of
action' has been compendiously defined to mean every
fact which it would be necessary for the plaintiff to prove,
if traversed, in order to support his right to the judgment
of the Court. Omission of a single material fact leads to
D an incomplete cause of action and the statement of claim
becomes bad. The function of the party is to present as ",
full a picture of the cause of action with such further
information in detail as to make the opposite party
understand the case he will have to meet."
E
33. In the case of V.S Achutanandan v. P.J Francis [(1999)
2 SCR 99], it was held that failure to plead material facts is fatal
to the election petition and no amendment of the pleadings is
permissible to introduce such material facts after the time limit •
prescribed for filing the election petition.
F
34. In the case of Azhar Hussain v. Rajiv Gandhi (AIR
1986 SC 1253), it was stated:-

"In substance the argument is that the Court must proceed
G with the trial, record the evidence, and only after the trial
of the election petition is concluded that the powers under
the Code of Civil Procedure for dealing appropriately with .+- •

the defective petition wh:ich does not disclose cause of
action should be exercised. With respect to the learned
Counsel, it is an argument which it is difficult to
H
LAX.Ml KANT BAJPAI v. HAZI YAQOOB & ORS. 553
[H.L. DATIU, J.]
comprehend. The whole purpose of conferment of such A
powers is to ensure that a litigation which is meaningless
and bound to prove abortive should not be permitted to
occupy the time of the court and exercise the mind of the
respondent. The sword of Damocles need not be kept
hanging over his head unnecessarily without point or 8
purpose .... The contention that even if the election petition
is liable to be dismissed ultimately it should be so
dismissed only after recording evidence is a thoroughly
misconceived and untenable argument."

35. Therefore, it is a settled legal position that an election c
petition must clearly and unambiguously set out all the material
facts which the appellant is to rely upon during the trial, and it
must reveal a clear and complete picture of the circumstances
~j and should disclose a definite cause of action. In the absence
of the above, an election petition can be summarily dismissed. D
To see whether material facts have been duly disclosed or
whether a cause of action arises, we need to look at the
averment and pleadings taken up by the party.

36. Coming to the present case, the relevant portion of the E
specific averment made by the appellant in Para 27 of the
Election Petition reads as follows:-
"
"That the appellant thereupon made a representation to the
Chief Election Officer, Election Commission of India, New
Delhi, on 05.05.2007 wherein he prayed that the name of F
voters included in the electoral rolls of the aforesaid 21
localities/colonies/mohallas be excluded from 381 Meerut
Assembly constituency."

r~ 37. The essential averment of the appellant is with respect G
to inclusion of the voters from the above mentioned colonies
in the electoral roll of 381 Meerut constituency and the
acceptance of their votes, which materially affected the results
of the elections. The appellant places reliance upon Section
100 (1) (d) (iii) and (iv) of the Representation of Peoples Act, H
554 SUPREME COURT REPORTS (2009) 16 (ADDL.) S.C.R.

A 1951 to plead for the declaration of the election to be void. The
relevant provisions state:-

"(d) that the result of the election, insofar as it concerns a
returned candidate, has been materially affected ....
B (iii) by the improper reception, refusal or rejection of any
vote or the reception of any vote which is void, or ....
(iv) by any non-compliance with the provisions o,f the
Constitution or of this Act or any rules or orders made
c under this Act."

38. The averments of the appellants in the election petition
do not disclose any definite cause of action. The appellant
pleads that the names of the 21 localities have been wrongfully
\
included in the electoral roll of the relevant constituen~y. But
D there has been no order by the Election Commission for the
alteration of the electoral rolls of the constituency. Furthermore
the Election Commission does not have the power to amend
the electoral roll as there has been no fresh delimitation carried
out by the Delimitation Act. The electoral rolls have been
E prepared keeping in view the 381 Meerut constituency, which
consists of the Meerut municipality ward. This is as per the
notification of the Delimitation Commission. As stated above, •
delimitation is to be carried out by the Delimitation Commission
and in furtherance of the delimitation carried out by the
F Commission, the Election Commission shall proceed to
prepare electoral rolls for the constituency. Therefore, there has
been no default on the part of any of the authorities, so as to
render any votes void. There has been no violation of any o1
the provisions of the Act or the rules framed thereunder. The .
G appellant primarily relies on the communication issued by the ~ .
Election Commission of India dated 24.3.2007. But as
discussed above, the same cannot be construed as any
direction on the part of the Commission. The averments also
do not disclose any material facts. As observed by tht:i High
H Court, the main concern of the appellant in effect is the addition
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS. 555
[H.L. DATIU, J.]
of the 21 colonies into the Meerut constituency and not in A
relation to addition or deletion of names in the electoral roll. But
yet there has been no specific pleading in this regard in the
election petition. The pleading should have been with respect
to the said inclusion of the 21 colonies into the Meerut
municipality ward which was later incorporated into the 381 B
Meerut Assembly constituency. In the absence of such
pleadings, it can safely be said that the election petition does
not disclose any material facts and, therefore, High Court was
.-I right in summarily dismissing the election petition.

39. Before parting with the case, we will now refer to the C
decision on which reliance is placed by learned counsel for
appellant.

40. The facts in Shankar Babaji Sawant v. Sakharam
Vithoba Salunkhe [(1965) 2 SCR 403) were that the Presiding o
Officer for the polling station at Village Turveh Khurd, improperly
prevented 19 voters from inserting their ballot papers into the
ballot box. On the polling day, those 19 voters wanted to vote
in favour of the petitioner. The contention raised was that an ·
improper refusal of votes contemplated by section 100(1 )(d)(iii) E
must mean an improper refusal of valid votes. However the
court came to the conclusion that the said votes were not valid
votes as they were never inserted into the ballot box. The facts
and the circumstances of the case are clearly distinguishable
from the present case. The present case involves acceptance F
of alleged improper votes from people of the 21 localities in
question, which has according to the appellant materially
affected the result of the election. Therefore this case does not -
assist the appellant in any manner. · .. ~
..::_;·

41. In Baidyanath Panjiar v. Sitanath Mahato [(1969) 2 G
SCO 447), the issue which arose before this court was, whether
the electoral registration officer could amend the electoral rolls
after the last date for filing of nominations was over. The
provision in question was Section 23 (3) of the Representation
of Peoples Act, 1950, which specifically barred any alteration H
(
556 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.

A in the electoral roll after the date of filing of nomination was
over. The court reiterated the principle laid down in the provision
by observing that:-

"It gives a mandate to the electoral registration officers not
to amend, transpose or delete any entry in the electoral roll
B of a constituency after the last date for making nominations
for election in that constituency and before the completion
of that election. If there was no such provision, there would
,,_.
have been room for considerable manipulations,
particularly when there are only limited number of electors
c in a constituency. But for that provision, it would have been
possible for the concerned authorities to so manipulate the
electoral rolls as to advance the prospects of a particular
candidate. This would be more so if either all or a section
of the electors are persons nominated to local authorities."
D
The court finally came to the conclusion that it is clear that the ,_
entries in an electoral roll of a constituency, as they stood on
the last date for making the nominations for an election in that
constituency should be considered as final for the purpose of
E that election. This principle was reiterated by this court in the
case of Kabul Singh v. Kundan Singh and ors. [(1969) 2 sec
452), where the 1st respondent challenged the result of the
election by way of an election petition and one of the grounds
was that the vote of one Hari Singh should have been held to
be a void vote as his name was included in the electoral roll
F on April 5, 1968 i.e. just two days before the date of polling.
The court rendered the vote of Hari Singh to be void as it was
in contravention to Section 23 (3) of the Representation of
Peoples Act, 1950. The court held:-

G "Part Ill of the 1950 Act deals with the preparation of rolls
in a constituency. The provisions contained therein
prescribe the qualifications for being registered as a voter J.. ~

(Section 19), disqualifications which disentitle a person
from being registered as a voter (Section 16), revision of
H the rolls (Section 21), correction of entries in the electoral
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS. 557
[H.L. DATTU, J.)
rolls (Section 22), inclusion of the names in the electoral A
rolls (Section 23), appeals against orders passed by the
concerned authorities under Sections 22 and 23 (Section
24). Sections 14 to 24 of the 1950 Act are integrated
provisions. They form a complete code by themselves in
the matter of preparation and maintenance of electoral B
rolls. It is clear from those provisions that the entries found
in the electoral roll are final and they are not open to
challenge either before a civil court or before a tribunal
which considers the validity of any election."

42. In the case of Rampakavi Rayappa Belagali v. B.D C
Jatti and Ors. [(1970) 3 SCC 147), the main issue raised by
the petitioner was that that respondent No. 1 had ceased to be
a person ordinarily resident within the constituency of
Jamkhandi during the period relevant to the 1967 General
~' Elections. This court went into the definition of an elector under D
Section 2 (1)(e) of the Representation of Peoples Act, 1951
and held that the conditions about being ordinarily resident in
a constituency for the purpose of registration are meant for that
purpose alone and have nothing to do with the disqualifications
for registration which are prescribed by Section 16 of the Act E
of 1950 which alone are relevant to the definition of an "elector''
as given in Section 2(1){e) of the Act. In this regard, this court
"' observed:-

"The entire scheme of the Act of 1950 and the amplitude F
of its provisions show that the entries made in an Electoral
Roll of a constituency can only be challenged in
accordance with the machinery provided by it and not in
any other manner or before any other forum unless some
question of violation of the provisions of the Constitution G
is involved."

43. The above issue was also a question in the form of a
contention before a Constitution Bench of this court in the case
of Hari Prasad Mulshanker Trivedi v. V.B Raju and ors.
[(197 4) 3 sec 415], in as much as the election of the H
558 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.

A respondents were to be declared void on the ground that they
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 electoral roll of the
respective constituency in Gujarat. Reliance was placed on
B Section 19 of the Representation of Peoples Act, 1950 which
reads :-

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

c ' (a) is not less than eighteen years of age on the qualifying
date, and

(b) is ordinarily resident in a constituency, shall be entitled
to be registered in the electoral roll for that constituency."
D The Constitution Bench observed thus:- ..
"Under Section 100(1)(d)(iv) of the 1951 Act the result of
the election must have been materially affected by
noncompliance with the provisions of the Constitution or
E of that Act or of the rules, orders made under that Act in
order that High Court may declare an election to be void.
Non-compliance with the provisions of Section 19 of the
1950 Act cannot furnish a ground for declaring an election
void under that clause." •
F
In this regard the court observed that there was no allegation
that they were disqualified under Section 16 of the 1950 Act.
Nor was there any ground taken that they were not qualified in
the sense of their being not citizens or under the age as
required. As their names were entered in the electoral roll and
G as they did not suffer from any of the disqualifications
mentioned in Section 16 of the 1950 Act, they were electors
~ '
within the definition of the term in Section 2(1 )(e) of the 1951
Act. Therefore. the respondents qualified to be chosen as
candidates under Section 3 of the 1951 Act.
H
LAXMI KANT BAJPAI v. HAZI YAQOOB & ORS. 559
[H.L. DATIU, J.]
44. In the case of Mohinder Singh Gill and Anr. v. The A
Chief Election Commissioner, New Delhi and Ors. [(1978) 1
SCC 405], a Constitution Bench discussed the scope of Article
324 of the Constitution of India and Section 100 (1 )(d)(iv) of
the Representation of Peoples Act, 1951. The Court observed:-
B
"Article 324(1) vests in the Election Commission the
., superintendence, direction and control of the preparation
of the electoral rolls for, and the conduct of, all elections
• -'r
to Parliament and to the Legislature of every State and of
elections to the offices of the President and Vice-
President held under the Constitution. Article 324(1) is thus c
couched in wide terms. Power in any democratic set up,
as is the pattern of our polity, is to be exercised in
accordance with, law. That is why Articles 327 and 328
provide for making of provisions, with respect to all matters
relating to or in connection with elections for the Union D
_t
"' Legislatures and for the State Legislatures respectively.
When appropriate laws, are made under Article 327 by
Parliament as well as under Article 328 by the State
Legislatures, the Commission has to act in conformity with
those laws and the other legal provisions made thereunder. E
Even so, both Articles 327 and 328 are "subject to the
provisions" of the Constitution which include Article 324
and Article 329. Since the conduct of all elections to the
... various legislative bodies and to the offices of the
President and the Vice-President is vested under Article F
324(1) in the Election Commission, the framers of the
Constitution took care to leaving scope for exercise of
residuary power by the Commission, in its own right, as a
creature of the Constitution in the infinite variety of
situations that may emerge from time to time in such a
..... ;,
large democracy as ours. Every contingency could not be
foreseen, or anticipated with precision. That is why there
G

is no hedging in Article 324, The Commission may be
required to cope with some situation which may not be
provided for in the enacted laws and the rules. That seems
H
560 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.

A to be the ration d'etre for the opening clause in Articles 327
and 328 which leaves the exercise of powers under Article
324 operative and effective when it is reasonably called
for in a vacuous area. There is, however, no doubt
whatsoever that, the Election Commission will have to
B conform to the existing laws and rules in exercising its
powers and performing its manifold duties for the conduct '-

of free and fair elections."
1'- •

As a natural corollary to the above observation it was held that
"if there is any illegality in the exercise of the power under
c Article 324 or under any provision of the Act, there is no reason
why Section 100(1)(d)(iv) should not be attracted to it. If
exercise of a power is competent either under the provisions
of the Constitution or under any other provision of law, any
infirmity in the exercise of that power is, in truth and substance,
D on account of non-compliance with the provisions of law, since
law demands of exercise of power by its repository; as in a
faithful trust, in proper regular, fair reasonal manner." Therefore
' -
according to this court Article 329 (b) of the Constitution of India
rules out the maintainability of the writ application with respect
E to challenge of an election. The remedy available to an
aggrieved person is therefore by way of an election petition
filed in the prescribed manner.
;,
45. In the case of Lakshmi Chandra Sen and Ors. v.
A.K.M. Hassan Uzzaman and Ors. [(1985) 4 SCC 689], this
F
court while discussing the scope of Section 23 (3) of the
Representation of Peoples Act, 1950, has stated :

"Section 23(3) of the Act of 1950 also points in the same

G
direction. Under that provision, no amendment,
transposition or deletion of an entry can be made under
Section 22 and no direction for the inclusion of a name in ~
...
.
the electoral roll of a constituency can be given, after the
last date for making nomination for an election in the
particular constituency. The election has to be held on the
H basis of the elebtoral roll which is in force on the last date
LAX.Ml KANT BAJPAI v. HAZI YAQOOB & ORS. 561
[H.L. DATTU, J.]

for making nominations. If that were not so, the easiest A
expedient which could be resorted to for the purpose of
postponing an election to the legislature would be to file
complaints and objections, omnibus or otherwise, which
would take days and months to decide. It is not suggested
that claims and objections filed in the prescribed form B
should not be decided promptly and in accordance with
law. But, the important point which must be borne in mind
is that whet!1er or not a revision of an electoral roll is
undertaken and, if undertaken, whether or not it is
completed, the electoral roll for the time being in force must c
hold the field. Elections cannot be postponed for the
reason that certain claims and objections have still
remained to be disposed of. Then, claimants and objectors
could even evade the acceptance of notices and thereby
postpone indefinitely the decision thereon. Theo holding
D
of elections to the legislatures, which is a constitutional
~

~' mandate, cannot be made to depend upon the volition of
interested parties."

The court further observed that "as far as electoral rolls are
concerned, there never comes a moment where an electoral E
roll is not in force." This observation was made after drawing
an analogy from Section 21 (3) of the Act of 1950 which confers
upon the Election Commission the power to direct a special
_...
revision of the electoral roll. The proviso to that Sub-section also
' says that until the completion of the special revision so directed, F
the electoral roll for the time being in force shall continue to be
in force.

46. In the case of lndrajit Baruah and others v. Election
Commissioner of India and others, (AIR 1986 SC 103), one
G
.., of the contentions raised whereby the petitioners sought to
escape from the ban of Article 329(b) by contending that they
• 1
are challenging the impugned elections as a whole and not any
individual election and that the ban of Article 329(b), therefore,
does not stand in the way of the writ petitions filed by them
H
--
562 SUPREME COURT REPORTS [2009) 16 (ADDL.) S.C.R.

A challenging the impugned elections. The principal ground on
which the validity of the elections has been challenged is that
the electoral rolls were not revised before the elections in
contravention of the provisions of Section 21, Sub-section (2)(a)
of the Representation of the People Act, 1950, and the
B elections CJwere held on the basis of the electoral rolls of 1979.
The Constitution Bench of this court while relying on the well
settled law on the question involved held thus:-

"In the first place, Article 329(b) of the Constitution bars 1- •

any challenge to the impugned elections by a writ petition
c under Article 226 as also on the ground that the electoral
rolls on the basis of which the impugned elections were
held were invalid. The petitioners sought to escape from
the ban of Article 329(b) by contending that they are
challenging the impugned elections as a whole and not any
D individual election and that the ban of Article 329(b),
therefore, does not stand in the way of the writ petitions ~ -
filed by them challenging the impugned elections, But we
do not think this escape route is open to the petitioner.
There is in the Representation of the People Act, 1951,
E no concept of elections as a whole. What that Act
contemplates is election from each constituency and it is
that election which is liable to be. challenged by filing an
election petition. It may be that there is a common ground
which may vitiate the elections from all the constituencies, )>-

F but even so it-is the election from each constituency which
has to be challenged though the ground of challenge may
be identical. Even where in form the challenge is to the
elections as a whole, in effect and substance what is ,_
challenged is election from each constituency, and Article
G 329(b) must, therefore, be held to be attracted. We are of
the view that once the final electoral rolls are published and
<"
elections are held on the basis of such electoral rolls, it is ~ .
not open to anyone to challenge the election from any
constituency or constituencies on the ground that the
H electoral rolls were defective. That is not a ground available
;., LAX.Ml KANT BAJPAI v. HAZI YAQOOB & ORS. 563
[H.L. DATTU, J.]

.. for challenging an election under Section 100 of
Representation of People Act, 1951. The finality of the
electoral rolls cannot be assailed in proceeding
challenging the validity of an election held on the basis of
A

such electoral roll vide Kabul Singh v. Kundan Singh :
[1970) 1 SCR 845 . Article 329(b) in our opinion clearly B
bars any writ petition challenging the impugned election on
-~
the ground that the electoral rolls of 1979 on the basis of
which the impugned elections were held were invalid."

47. In our considered view, none of the decision on which
reliance is placed by learned senior counsel is anyway nearer c
to the issue that is debated in this appeal. We hasten to add,
that the learned senior counsel was very fair to the court by
bringing to the notice of this court the observations made by
-T this court in the case of Shyamadeo Parsad Singh vs. Nawa/
Kishore Yadav, [(2000) 8 sec 46], which answers all the legal D
issues raised by the appellant in this appeal.

-- 48. For the reasons mentioned above, this appeal fails and
the same is dismissed and since no representation was there
for the respondent, we refrain from imposing costs. E

. K.K.T . Appeal dismissed.