Holding

A candidate whose name appears in more than one electoral roll is not automatically disqualified; no ground under Sections 16, 17, 33(5) or 100 of the Representation of People Acts, nor Articles 173 or 191, exists to declare the election void.

Summary

In the 1995 Maharashtra Legislative Assembly elections, both the appellant Baburao and the first respondent Manikrao filed nominations from Nilanga constituency. The respondent's name appeared in the electoral rolls of both Nilanga and Latur constituencies. Baburao objected, claiming that this dual entry disqualified the respondent under the Representation of People Act, 1950 and that he was not "ordinarily resident" in Nilanga. The Returning Officer rejected the objection, the respondent was elected, and Baburao filed an election petition. The High Court dismissed the petition, holding that appearance of a name in two rolls does not automatically invoke disqualification under Section 16 and that Sections 17 and 18 are not mandatory. On appeal, the Supreme Court affirmed the High Court, stating that no provision of the 1950 or 1951 Acts, nor Articles 173 or 191 of the Constitution, renders the respondent disqualified, and that any objection under Section 17 should have been raised before registration. Consequently, the appeal was dismissed.

Issues considered

The appearance of a candidate's name in electoral rolls of two constituencies constitutes a disqualification under Section 16 of the Representation of People Act, 1950 or any other provision.
Whether Sections 17 and 18 of the Representation of People Act, 1950 are mandatory for raising objections to dual registration.
Whether the election petition is maintainable in the absence of essential parties.

Legislation cited

Constitution of Indias. Article 173, s. Article 191
Representation of People Act, 1951s. 100, s. 2(e), s. 33(5), s. 36, s. 5(c)

Subjects

Election lawDisqualificationElectoral rollRepresentation of People ActNomination objectionOrdinary residenceSection 16Section 17Section 33Section 100Maharashtra Legislative Assembly

Judgment

BABURAO A
v.
MANIKRAO AND ANR.

MAY 13, 1999

[SUJATA V. MANOHAR AND K. VENKATASWAMI, JJ.] B

Constitution-Articles 173, 191-Representation of People Act, 1950-
Section 16 to 20-Representation of People Act, 1951-Sections 33,36,100-
Disqualifications-Elections to State Legislative Assembly-Appearance of
name of a candidate in electoral roll of more than one Constituency- C
Whether a disqualification to contest from any one of the Constituencies-
Held, No-Objection u/s 17 could be raised.

Representation of People Act, 1950-Sections 17, 18-Whether
mandatory provisions-Held, No.
D
For election to the Maharashtra State Legislative Assembly the
appellant and the first respondent filed noplinations to contest from Nilanga
Assembly Constituency, Latur District. As the respondent's name was
appearing in the electoral rolls of Nilanga Assembly Constituency and also
Latur Assembly Constituency, the appellant raised objections to the E
candidature of first respondent alleging that the respondent had incurred
disqualification under the law relating to election of members to the
Legislative Assembly and that the first respondent was not 'ordinarily resident'
within the meaning of Section 20 of the Representation of People Act, 1950
in Nilanga Constituency and, therefore, not qualified to contest the election.
F
The High Court dismissed the election petition, rejecting the appellant's
case that the first respondent was disqualified to contest the Nilanga
Constituency as his name was found in two constituencies and holding that
Sections 17 and 18 of the Act are not mandatory.
G
This appeal had been filed against the judgment of the High Court. The
appellant contended that the first respondent's name having been found in
the electoral roll of more than one constituency, he had incurred the
disqualification and his nomination ought to have been rejected when objection
was raised by the appellant before the Returning officer and that the High
Court erred in holding that Sections 17 and 18of1950 Act are not mandatory. H
547
548 SUPREME COURT REPORTS [1999] 3 S.C.R.

A The respondent submitted that as long as the name of the first
respondent finds a place in the electoral roll of Nilanga Constituency and
the nomination of the first respondent was filed on the basis, the question
of production of the electoral roll relating to Latur Constituency did not
arise and that the objection as to the inclusion of the first respondent's name
in Nilanga Constituency, if at all, ought have been raised before his name
B was validly included in the electoral roll of the constituency as once the name
finds a place in the electoral roll validly published, the same cannot be
challenged on any ground to oppose the nomination when filed from that
-
constituency.

C Dismissing the appeal, the Court

HELD : 1.1. There is nothing to suggest in Section 16 of the
Representation of People Act, 1950 that ifa person's name finds a place in
more than one constituency that would automatically entail disqualification
from contesting in any one of the constituencies. Section 2(1) (e) of the
D Representation of People Act of 1951 refers disqualification u/s 16of1950
Act alone while interpreting the word 'Elector' and has not mentioned any
contravention of Section 17 as disqualification. Though Sectio.n 17 of 1950
Act expressly states that no person shall be entitled to be registered in the
electoral roll for more than one constituency, but if a person's name finds
a place in more than one constituency, it does not automatically entail the
E disqualification under Section 16. Objection under Section 17 could have
been successfully raised to prevent the name of respondent no. 1 being
included in Nilanga Constituency. [560-G-H; 561-A-B)

1.2. There is no ground u/s 16 of the 1950 Act and Articles 173 and
191 of the Constitution of India to hold that the nomination of the first
F
respondent ought to have been rejected. As the respondent 1 did not file his
nomination to the Nilanga constituency on the basis of his name finding a
place in Latur Constituency, he filed the nomination to Nilanga Constituency
only on the basis of his name finding a place in that Constituency.

G Therefore, reliance placed on Section 33(5) was misconceived. Likewise,
the election of the first respondent cannot be declared void under any one
of the grounds set out in Section 100 of the Act. The appellant did not raise
any objection before the Electoral Registration Officer about inclusion of the
name of the first respondent in Nilanga Constituency. [561-C-E)

H Sher Singh Budh & Anr. v. State of Punjab & Ors., AIR (1965) Punj.
BABURAO v. MANIKRAO [K. VENKATASWAMI, J.] 549
361; Anandrao Sitaram Nagmote & Anr. v. Shri S.P. Mohani & Ors., ILR A
(1967) Born, Series 1358; Jagannath R. Nunekar v. Genu Govind Kadam,
(1989) Supp. 1 SCC 55; Rosamma Punnose v. Balakrishnan Nair, AIR (1958)
Kerala 154; Mohammed Refique v. S.M. Pagnis, District Judge, Bhind &
Anr., AIR (1960) M.P. 369 and Lila Krishna v. Mani Ram Godaria, (1985)
Supp. 1 SCC 179, distinguished.
B
B.M Ramaswamy v. B.M Krishna Murthy & Ors., [1963] 3 SCR 479;
Hariprasad Mulshankar Trivedi v. B.B. Raju & Ors., [1974) 3 SCC 415;
Rangilal Chaudhary v. Dhau Sao & Ors., [1962) 2 SCR 401; Rafiq Khan
& Anr. v. Laxminarayan Sharma, [1997) 2 SCC 228 and Jndrajeet Baruah,
etc. etc. v. Election Commissioner of India, AIR (1984) SC 1912, referred C
to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 622 of
1998.

From the Judgment and Order dated 30.4.97 of the Bombay High Court
in E.P.No. 4of1995. D
O.P. Rana and P.N. Gupta for the Appellant.

S.M. Jadhav for the Respondents.

The Judgment of the Court was delivered by
E
K. VENKATASWAMI, J. Aggrieved by the dismissal of Election Petition
No. 4195 on the file of Bombay High Court (Aurangabad Bench), this appeal
is filed by the appellant.

In January, 1995 the elections to the Maharashtra State Legislative
Assembly were held. The appellant and the first respondent alongwith others F
had filed nominations to contest from 211 Nilnage Assembly Constituency,
Latur District. The appellant raised objections before the Returning Officer
(Respondent No. 2 ) to the candidature of first respondent. According to the
appellant, as the first respondent's name was appearing in the electoral rolls
of 211 Nilanga Assembly Constituency and also 206 Latur Assembly G
Constituency, he could not be an elector in both the constituencies and,
therefore, his nomination has to be rejected. After hearing the parties, the
Returning Officer overruled the objections of the appellant by an order dated
19. l .1995. A revision filed before the Chief Electoral Officer, Maharashtra
State, was also not successful. The Returning Officer announced the result
of the 211 Nilanga Constituency on 12.3.1996 by declaring that the first H
550 SUPREME COURT REPORTS [1999] 3 S.C.R.

A respondent was elected from that constituency.

The appellant challenged the election of the first respondent by filing
an Election Petition. The main challenge in the election petition was on the
ground that the first respondent's name appears in two assembly constituencies
and as such he has incurred disqualification under the law relating to election
B of members to the Legislative Assembly. It was also contended by the appellant
that the first respondent was not "ordinarily resident" within the meaning of
Section 20 of the Representation of People Act, 1950 (hereinafter called the
"1950 Act") in Nilanga Constituency and, therefore, not qualified to contest
the election from the said Constituency. It was further contended that the
C objection raised by him before the Returning Officer was wrongfully and
illegally turned down.

The first respondent contested the Election Petition denying all the
objections raised by the appellant. According to. the first respondent, his
name finds a place in the electoral roll for the Nilanga constituency and,
D therefore it was not open to the appellant to raise the objection that he was
not an ordinary resident of any the villages coming under Nilanga Constituency.
According to the first respondent, he was not disqualified to contest from
Nilanga Constituency as contended by the appellant.

Before the learned Judge, the parties have agreed that two issues can
E be framed as preliminary issues and on those issues no oral or documentary
evidence need be adduced. Accordingly, the following issues were framed :-

"(I) Do the entries of the name of the respondent No. I in two
Assembly Constituencies entail any disqualification and does the
election become void on that count?
F
(2) Is the petition tenable in the absence of essential or necessary
parties?

(3) What Order?"

G The learned Judge on the basis of the submissions made before him
answered the first issue in the negative and the second issue affirmatively.
Accordingly, under the third issue he dismissed the election petition.

Mr. O.P. Rana, learned Sr. Counsel appearing for the appellant, contended
that the High Court should have held accepting the case of the appellant that
H in view of the first respondent's name appearing in the electoral rolls of two
BABURAO v. MANIKRAO [K. VENKATASWAMI, J.] 551
constituencies, namely, 206 and 211, he was not eligible to contest the election- A
from Nilanga Constituency. According to the learned Sr. Counsel that on a
conjoint reading of relevant provisions of the Representation of People Act,
19 50 and 19 51, the High Court should have held that the first respondent was
not qualified to be choosen as he was not eligible to contest the election and
as such the election was void ab initio. In other words, the contention of the B
learned Senior Counsel for the appellant was that the first respondents's name
having been found in the electoral roll of more than one constituency, he has
incurred the disqualification from being contested and his nomination ought
to have ben rejected when objection was raised by the appellant before the
Returning Officer. In support of that contention, he placed reliance on Section
5(c) of 1951 Act read with Section 2(1)(e) of the same Act. He also placed C
reliance on Section 33(5) read with Section 36(2)(b) of the 1951 Act and
contended that the failure on the part of the first respondent to produce the
electoral roll of 206 Latur Assembly Constituency wherein his name finds a
place, the Returning Officer ought to have rejected the nomination of the first
respondent accepting the objection raised by the appellant. According to the
learned Sr. Counsel, the High Court erred in holding that Sections 17 and 18 D
of 1950 Act are not mandatory but only directory. He placed reliance on Sher
Singh Budh Singh & Anr. v. The State of Punjab & Ors., AIR (1965) Punjab
361 and Anandrao Sitaram Nagmote & Anr. v. Shri S.P. Mohoni & Ors., ILR
(1967) Born. Series (1358). He also invited our attention to Jagannath R.
Nunekar v. Genu Govind Kadam, [1989] Supp. 1SCC55, Rosamma Punnose E
v. Balakrishnan Nair, AIR (1958) Kerala 154, Mohammed Rafique v. S.M
Pagnis, District Judge, Bhind & Anr., AIR ( 1960) M.P. 369 and Lila Krishan
v. Mani Ram Godara, [1985) Supp. 1 SCC 179.

Mr. S.M. Jadhav, learned counsel appearing for the first respondent, in
reply to the contentions of the learned Sr. counsel for the appellant submitted F
that so long as the name of the first respondent finds a place in the electoral
roll of Nilanga Constituency and the nomination of the first respondent was
filed on that basis, the question of production of electoral roll relating to 206
Latur Constituency did not arise and the reliance placed on Section 33(5) of
1951 Act was misconceived. According to the learned counsel appearing for G
the first respondent, the objections as to the inclusion of first respondent's
name in 211 Nilanga Constituency, if at all, ought to have been raised before
his name was validly included in the electoral rolls of that constituency. Once
the name finds a place in the electoral roll validly published, the same cannot
be challenged on any ground to oppose the nomination when filed from that
constituency. In support of that he placed reliance on a judgment of this H
552 SUPREME COURT REPORTS [1999] 3 S.C.R.

A Court in B.M Ramaswamy v. B.M Krishna Murthy & Ors., [ 1963] 3 SCR 479.
It was the contention of the learned counsel for the first respondent that this
Court has repeatedly held that the right to contest an election is only a
statutory right and the right to challenge an election is also circumscribed by
the provisions of 1951 Act on the grounds mentioned in Section 100 of that .
Act and in no other manner. In support of that, he placed reliance on a
B decision of the Constitution Bench of this Court in Hariprasad Mulshankar
Trivedi v. B.B. Raju & Ors. (1974] 3 SCC 415. The learned counsel also invited
our attention to Rangilal Chaudhari v. Dhau Sao & Ors., (1962] 2 SCR 401,
Rafiq Khan & Anr. v. Laxminarayan Sharma, (1997] 2 SCC 228 and Indrajeet
baruah, etc. etc. v. Election Commissioner of India, AIR (1984) SC 1912.
c We have considered the rival submissions. It is not in dispute and
cannot be disputed that the name of the first respondent finds a place in the
electoral roll of 206 Latur Constituency as well as in the electoral rolls of 211
Nilanga Constituency. We, therefore, proceed on that basis. The issue is
whether the appearance of the name of the first respondent in two
D constituencies is a disqualification to contest from any one of the
Constituencies under any of the provisions of the Representation of the
People Act, 1950 or 1951. At this juncture it will be useful to set out the
relevant provisions of the 1950 and 1951 Act :-

E The Representation of the People Act, 1950

Section 16 - Disqualifications for registration in an electoral roll :-(l) A
person shall be disqualified for registration in an electoral roll if he -

(a) is not a citizen of India; or

F (b) is of unsound mind and stands so declared by a competent court; or

(c) is for the time being disqualified from voting under the provisions
of any law relating to corrupt practices and other offences in connection with
elections.
G "(2) The name of the any person who becomes so disqualified after
registration shall forthwith be struck off the electoral roll in which it is
included:

[Provided that the name of any person struck off the electoral roll of a
H constituency by reason of a disqualification under clause (c) of sub-section
BABURAO v. MANIKRAO [K. VENKATASWAMI, J.] 553
(1) shall forth with be re-instated in that roll if such disqualification is, during A
the period such roll is in force, removed under any law authorizing such
removal.]

Section 17- No person to be registered in more than one constituency
- No person shall be entitled to be registered in the electoral roll for more than
one constituency. B
Section 18 - No person to be registered more than once in any
constituency - No person shall be entitled to be registered in the electoral roll
for any constituency more than once.

Section 19 - Conditions of registration - Subject to the foregoing C
provisions of this Part, every person who -

(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
Section 20 - Meaning of "ordinarily resident"-

[l] A person shall not be deemed to be ordinarily resident in a
constituency on the ground only that he owns, or is in possession of,
dwelling house therein. E
{IA) A person absenting himself temporarily from his place ofordinary
residence shall not by reason thereof cease to be ordinarily resident therein.

( l B) A Member of Parliament or of the Legislature of a State shall not
during the term of his office cease to be ordinarily resident in the constituency F
in the electoral roll of which he is registered as an electoral at the time of his
election as such member, by reason of his absence from that constituency in
connection with his duties as such member.]

(2) A person who is a patient in any establishment maintained wholly G
or mainly for the reception and treatment of persons suffering from mental
illness or mental defectiveness, or who is detained in prison or other legal
custody at any place, shall not by reason thereof be deemed to be ordinarily
resident therein.

(3) Any person having a service qualification shall be deemed to be H
554 SUPREME COURT REPORTS [1999] 3 S.C.R.

A ordinarily resident on any date in the constituency in which, but for having
such service qualification, he would have been ordinarily resident on that
date]

(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
B provisions of this sub-section apply, shall be deemed to be ordinarily resident
on any date in the constituency in which, but for 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 prescribed
C manner, that [but for his having the service qualification] or but for his
holding any such office as is referred to in sub-section, (4) 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].

(6) The wife of any such person as is referred to in sub-section (3) or
D sub-section (4) shall if she be ordinarily residing with such person be deemed
to be ordinarily resident on in the constituency specified by such person
under sub-section (5).

(7) If in any case a question arises as to where a person is ordinarily
E resident at any relevant time the question shall be determined with 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.]

(8) In sub-sections (3) and (5) "service qualification" means-

(a) being a member of the aimed forces of the Union; or
F
(b) being a member of a force to which the provisions of the Army
Act, 1950 (46of1950) have been made applicable whether with
or without modifications; or
(c) being member of an armed police force of a State, who is serving
G outside that State or
(d) being a person who is employed under the Government oflndia,
in a post outside India.

The Representation of the People Act, 1951

H Section 2 - Interpretation - (1) In this Act, unless the context otherwise
BABURAO v. MANIKRAO [K. VENKATASWAMI, J.] 555
requires,- A

(e) "elector" in relation to a constituency means a person whose name
is entered in the electoral roll of that constituency for the time being in force
and who is not subject to any of the disqualifications mentioned in Section B
16 of the Representation of the People Act, 1950 (43 of 1950)

Section 5 - Qualifications for membership of a Legislative Assembly -
A person shall not be qualified to be chosen to fill a seat in the Legislative
Assembly of a State unless -
c
(a) .... .

(b) .... .

(c) in the case of any other seat, he is an elector for any Assembly
constituency in that State: D

,
[Provided that for the period referred to in clause (2) of Article 371-A,
a person shall not be qualified to be chosen to fill any seat allocated to the
Tuensang district in the Legislative Assembly of Nagaland unless he is a
member of the regional council referred to in that Article].
E
Section 32 - Nomination of candidates for election :-

Any person may be nominated as a candidate for election to fill a seat
if he is qualified to be chosen to fill that seat under the provisions of the
Constitution and this Act [or under the provisions of the Government of F
Union Territories Act, 1963 (20 of 1963), as the case may be.]

Section 33 - Presentation of nomination paper and requirements for a
valid nomination -

G
(5) Where the candidate is an elector of different constituency, a copy
of the electoral roll of that constituency or of the relevant part thereof or a
certified copy of the relevant entries in such roll shall, unless it has been filed
along with the nomination paper, be produced before the returning officer at
the time of scrutiny. H
556 SUPREME COURT REPORTS [1999] 3 S.C.R.

A Section 36 - Scrutiny of nominations -

(I) ..........

(2) The returning officer shall then examine the nomination papers and
shall decide all objections which may be made to any nomination and may,
B either on such objection or on his own motion, after such summary inquiry,
if any as he thinks necessary, [reject] any nomination on any of the following
grounds :-

[(a) that on the date fixed for the scrutiny of nominations the candidate]
either is not qualified or is disqualified for being chosen to fill the seat under
C any of the following provisions that may be applicable, namely : -

Articles 84, 102, 173 and 191.

[Part II of this Act, and sections 4 and 14 of the Government of Union
D Territories Act, 1963 (20of1963); or

(b) that there has been a failure to comply with any of the provisions
of Section 33 or Section 34; or

(c) that the signature of the candidate or the proposer on the nomination
E paper is not genuine.

(3) ..........

(4) The Returning Officer shall not reject any nomination paper on the
groand of any defect which is not of a substantial character.
F (5) .........

(6) .......

(7) For the purposes of this Section, a certified copy of an entry in the
G electoral roll for the time being in force of a constituency shall be conclusive
evidence of the fact that the person referred to in that entry is an elector for
that constituency, unless it is proved that he is subject to a disqualification
mentioned in section 16 of the Representation of the People Act, 1950 (43 of
1950).

H Section 100 - Grounds for declaring election to be void -
BABURAO v. MANIKRAO [K. VENKATASWAMI, J.) 557
(l) Subject to the provisions of sub-section (2) if [the High Court] is A
··- of opinion -

(a) that on the date of his election a returned candidate was not qualified,
or was disqualified to be chosen to fill the seat under the Constitution or this
Act [or the Government of Union Territories Act, 1963 (20 of 1963] ; or
B
(b) that any corrupt practice has been committed by a returned candidate
or his election agent or by any other person with consent of a returned
candidate or his election agent; or

(c) that any nomination has been improperly rejected; or
c
(d) that the result of the election, in so far as it concerns a returned
candidate, has been materially affected -

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of the returned D
candidate [by an agent other than his election agent], or

(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 Constitution or E
of this Act or of any rules or orders made under this Act,

[the High Court] shall declare the election of the returned candidate
to be void.]

(2) If in the opinion of [the High Court], a returned candidate has been
guilty by an agent, other than his election agent, of any corrupt practice but F
[the High Court] is satisfied -

(a) that no such corrupt practice was committed at the election by the
candidate or his election agent, and every such corrupt practice was committed
contrary to the orders, and [without the consent], of the candidate or his G
election agent;

( c) that the candidate and his election agent took all reasonable means
for preventing the commission of corrupt practices at the election; and H
558 SUPREME COURT REPORTS [1999] 3 S.C.R.

A (d) that in all other respects the election was free from any corrupt
practice on the part of the candidate or any of his agents,

then (the High Court] may decide that the election of the returned
candidate is not void.

B "Article 173 - Qualification for membership of the State Legislature - A
person shall not be qualified to be chosen to fill a seat in the Legislature of
a State unless he -

[(a) is a citizen of India, and makes and subscribes before some person
authorised in that behalf by the Election Commission an oath or affirmation
C according to the form set out for the purpose in the Third Schedule;]
(b) is, in the case of a seat in the Legislative Assembly, not less than
twenty-five years of age and, in the case of a seat in the Legislative Council,
not less than thirty years of age; and

D (c) possesses such other qualifications as may be prescribed in that
behalf by or under any law made by Parliament"

Article 191 - Disqualification for membership - ( 1) A person shall be
disqualified for being chosen as, and for being, a member of the Legislative
E Assembly or Legislative Council of a State-

(a) if he holds any office of profit under the Government oflndia or the
Government of any State specified in the First Schedule, other than an office
declared by the Legislature of the State by law not to disqualify is holder;

(b) if he is of unsound mind and stands so declared by a competent
F court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgment of allegiance
G o,r adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

[Explanation - For the purposes of this clause], a person shall not be
deemed to hold an office of profit under the Government of India or the
H government of any State specified in the first Schedule by reason only that
BABURAO v. MANIKRAO [K. VENKATASWAMI, J.] 559
-"--'-he is a Minister either for the Union or for such State. A
(2) A person shall be disqualified for being a member of the Legislative
Assembly or Legislative Council of a State if he is so disqualified under the
Tenth Schedule.]"

Before we proceed further, we shall set out in brief the view expressed B
by the High Court. The learned Judge has set out the objection raised by the
appellant as follows :-

"The main objection by the petitioner to the election of the respondent
no. 1 is that the Returned Candidate namely respondent no. 1 was
enrolled as elector (Voter) in Assembly constituency No. 206 i.e. Latur C
Assembly Constituency and Assembly Constituency No. 211 i.e.
Nilanga Assembly Constituency, and according to the petitioner, the
appearance of name of the respondent no. 1 in two constituencies is
disqualification under section 16 of the Representation of the People
Act, 1950." D
The learned Judge after noticing the provisions of Sections 14 to 25 of
the 1950 Act and also noticing the provisions in Chapter II and III of 1951
Act held as follows :-

"It is the case of the petitioner that the respondent no. I is disqualified E
from contesting election and getting elected to the State Assembly
because of appearance of his name in more than one constituency.
The disqualification on this ground does not find place in any of the
above provisions of law.

It is not in dispute in the present case that at the time of the scrutiny F
of the nomination papers, the present petitioner had raised similar
objections against the respondent no. I and it is also undisputed that
the Returning Officer - respondent no. 2 overruled all the objections
by order dated 19.1. 1995. It is also an admitted position that the
petitioner took up the matter to the Chief Electoral Officer of the
Maharashtra State in revision, which came to be dismissed by an G
order dated 23. 1. 199 5."

In the course of the judgment under appeal the learned Judge after
noticing Articles 173 and 191 of the Constitution of India observed as follows :-

"It may further be noted that the nomination of a candidate can be H
).__

560 SUPREME COURT REPORTS [1999] 3 S.C.R.

A rejected on the ground of disqualification mentioned in Section 16 of
the Act, 1950 and disqualification mentioned under Article 173 and
191 of the Constitution of India. Section l 00 of the Act of 19 51
mentions the grounds for declaring the elections to be void and if the
Returned candidate was not qualified or was disqualified to be chosen
to fill in the seat on the date of election, the election can be declared
B void: Further, improper rejection of nomination is also a ground to
declare the election to be void. The petitioner does not allege any of
such grounds for, declaring the election to be void. It may also be
stated at this juncture that the Court cannot go into the question as
to whether the names of certain persons were entered illegally as laid
c down by the Sup_reme Court in case of S.K. Chaudhari v. Baidhyanath,
AIR (1973) SC 717."

Ultimately, the learned Judge reached the following conclusion :-

"Admittedly, the petitioner has not raised any objection before the
D electoral registration officer about inclusion of the name of the
respondent no. I in this Constituency. Section 100 of the Act of 1951
discloses the grounds for challenging the election of returned candidate
and the present petition fails to disclose any of the grounds mentioned
in the said Section. In view of the above discussion, it, therefore,
cannot be held that the appearance of name of the respondent no. I
E in two Assembly Constituencies entails any disqualification and as
such, election of respondent No. I cannot be declared void on the
count. Issue No. I is, therefore, answered in negative."

On a careful perusal of the relevant provisions, as extracted above, we
are of the view that the High Court was right in rejecting the contention of
F the appellant that the first respondent was disqualified to contest the Nilanga
Constituency as his name was found in two constituencies. We generally
agree with the conclusions arrived at by the High Court. However, we are not
in agreement with the view taken by the High Court that Sections 17 and 18
of 1950 Act are not mandatory. For the purposes of 1950 Act they are
G mandatory. For example, to object to the inclusion of the name in-the electoral
roll.

There is nothing to suggest in Section 16 of the 1950 Act that if a
person's name finds a place in more than one constituency that would
automatically entail disqualification from contesting in any one of the
H constituencies. It is relevant to note that Section 2(1 )(e) of 195 l Act refers
BABURAO v. MANIKRAO [K. VENKATASWAMI, J.] 561
disqualification under Section 16 of 1950 Act alone while interpreting the A
word 'Elector' and has not mentioned any contravention Section 17 as
disqualification. No doubt, Section 17 of 1950 Act expressly states that no
person shall be entitled to be registered in the electoral roll for more than one
constituency. But if a person's name finds a place in more than one
constituency, does it automatically entail the disqualification under Section B
16? We do not think so. Objection under Section 17 could have been
successfully raised to prevent respondent no.l's name from being included
in Nilanga Constituency.

Likewise, a reading of other sections also does not come to the help of
the appellant to sustain his contention. We are unable to find any ground C
after reading Se'ction 16 of the 1950 Act and Articles 173 and 191 of the
Constitution of India to hold that then nomination of the first respondent
ought to have been rejected. The contention based on Section 33 (5) of the
1951 Act is misconceived. As the respondent no. l did not file his nomination
to the 211 Nilanga Constituency on the basis of his name finding a place in
206 Latur Constituency. On the other hand he filed the nomination to 211 D
Nilanga Constituency. That being the position, the contention based on
Section 33 (5) cannot be accepted and the citations have no relevance.
Likewise, after reading Section 100 of the 1951 Act we are unable to declare
the election of .the first respondent void under any one of the grounds set
out therein. It is not in dispute that the appellant did not raise any objection E
before the Electoral Registration Officer about inclusion of the name of the
first respondent in 211 Nilnaga Constituency. After carefully going through
the judgment cited by the learned counsel for the appellant, we find that they
have no application to the facts of this case.

In the circumstances, we do not find any infirmity in the judgment of p
the High Court in dismissing the Election Petition. The appeal fails and is
dismissed accordingly. There will be no order as to costs.

R.A. Appeal dismissed.