D.B. RAJU versus H.J. KANTHARAJ AND OTHERS

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D.B. RAJU v. H.J. KANTHARAJ AND OTHERS

JULY 13, 1990

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[LAUT MOHAN SHARMA AND N.M. KASLIWAL, JJ.]

Representation of People Act, 1951: Final Electoral roll-To be

made available before expiry fixed for filing nomination papers.

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Karnataka Zilla Parishads, Taluk Panchayat Samithis, Manda/ Panchayats and Nayaya Panchayats Act, 1983: Section 5(9), 40(1) Final electoral roll to be made available before expi.ry fixed for filing nomination papers.

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The appellant contested the election to the Karnataka State Legislative Council from the Chitradurga Local Authorities Consti- tuency, comprising 121 Manda! Panchayats. The last date and time fixed for receiving nomination papers was 3.00 p.m. on 3.6.1988, and revision, if any, of the electoral roll had to be completed before that time. The polling took place on 3. 7 .1988 and the appellant was declared as the successful candidate.

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Earlier, a decision had been taken by the Chitradurga Zilla Paris- had on 28.5.1988 to nominate two members from each Manda! Panchayat, that is, a total number of 242 members. With a view to complete the nomination, the Deputy Commissioner took the necessary steps in accordance with the Karnataka Zita Parishads, Taluk Panchayat Samithis, Manda! panchayats and Nyaya Panchayats Act, 1983, read with the rules framed thereunder, and sent out the names for affixing the same on the notice boards of the office of the concerned Tehsildar and Manda! Panchayat and in the Chavadis. On his satisfac tion that the publication of 2 /3rd of the total number of the names was complete, the Deputy Commissioner was free to proceed further and tc revise the electoral roll under the Representation of the People Act, 1950 by including all the nominated members. In this regard, in his written statement before the High Court the Deputy Commissioner stated that the electoral roll had been up-dated and a copy pasted in the office on 3.6.1988 at 8.55 p.m.

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Sub-section ( 1) of section 40 of the Parishads Act made it abundantly clear that a nominated person became the member of a

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Pancbayat only on the publication of bis name under section 5(9) of the

~· Parisbads Act read with rule 73 of the Parisbads Rules.

A petition was filed in the High Court challenging the appellant's election on the ground that the inclusion of the 242 nominated members in the electoral roll took place after the period for nomination was over and they were, therefore, not included in the electoral roll in the eye of law.

Aller examining the evidence led by the parties the High Court held that the names were not incl.:ded in the electoral roll by 3.00 p.m. on 3.6.1988. Accordingly, the High Court set aside the election of the appellant and direct~ recount of votes after exclndin~ those of 242 members.

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~ Before this Court in appeal it was inter alia contended on behalf of the appellant that (i) the evidence on the record established that infor mation of the publication of the names of more than 2 {3rd of the total number of nominated persons bad reached the Deputy Commissioner in D time for the amendment of the Council Constituency roll, and that the Deputy Commissioner bad actually made an order for the inclusion of the names in the roll on 2.6.1988 (ii) putting the final voters list on the notice board was not a necessary requirement under the law; and (iii) __ since the burden was on the election petitioner to prove such facts

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which may vitiate the election, he must fail in the present state of E evidence.

On behalf of the respondents it was contended that the electoral roll must be held to have been modified in the eye of law only at 8.55 p.m. on 3.6.1988 when the alleged inclusion of the names was made public and not earlier.

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Dismissing the appeal, this Court,

HELD: (1) A plain reading of the evidence suggests that both the up-dating· of the electoral roll and pasting a copy thereof took place on 3.8.1988 at 8.55 p.m. [346G]

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(2) The circumstances that (i) the Deputy Commissioner was not -~ able to assert in his evidence before the Court that the revision of the roll had taken place before 3.00 p.m.; (ii) he was under an impression that the revision was permissible till the midnight; and (iii) in spite of the documents available to him he was not in a position to assert that the H

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report of publication of the names of 2 [.3rd or more of the nominated persons in the offices of the Manda! Panchayats had heen received in his office before the deadline, strongly support the case of the election petitioner. [346H; 347 AJ

(3) Besides fixing the identity of the persons to be allowed to vote at the election, the purpose of the preparation of the roll is to enable the persons included therein to decide as to whether they would like to contest the election and to help such persons in assessing their chances of success. [348F]

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( 4) The intending contestants and their supporters thus heavily depend upon the final electoral roll for deciding their future conduct, and it is, therefore, extremely essential that it is made available to them before the expiry of the period tued for tiling the nomination papers. [348G]

( 5) If the roll as it stood earlier, was confidentially corrected by the Electoral Registration Officer concerned sitting in his office which o did not see the light of the day, the same cannot be considered to have

been prepared accordingly to law. [348HJ

Bachhittar Singh v. The State of Punjab, [i962] Supp. 3 SCR 713,

referred to.

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(6) It is correct that putting the final voters list on the notice board is not a necessary requirement under the law. But that does not lead to the further conclusion that the electoral roll can be prepared secretly and kept in the drawers of the Officer without any information or knowledge to persons who are interested in finding out its final shape. [349B]

S.K. Srinivasan and others v. State of Karnataka and Others,

[ 1987] 1 sec 658, referred to.

(7) The Acts of the legislature are passed by the accredited rep resentatives of the people who in theory can be trusted to see that their constituents know what has been done, and this is done only after debates take place which are open to the public. The matter thus receives wide publicity through the media. But the case is different with the delegated legislation and, if one may add, also in the case of orders passed by the authorities like that in the present appeal. The mode of publication can vary but there must be reasonable publication of some sort. [349H; 350A-B I

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Har/a v. State of Rajasthan, [1952] SCR 110; Fal1na Haji Ali ',-·Mohammad Haji v. State of Bombay, [1951] SCR 266; State of Maharashtra v. Mayer Hans George, [1965] l SCR 123 and Johnson v. Sargant & Sons, [1918] l K.B. 101, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3634

(NEC) of 1989.

From the Judgment and Order dated 11.8.1989 of the Kamataka

'-1 High Court in Election Petition No. 6 of 1988.

M.C. Bandare, Ranjit Thomas and Mrs. C.K. Sucharita for the

Appellant.

Shanti Bhushan, B.R.L. Iyenger, R.B. Mehrotra and E.C.

~· Vidyasagar, for the Respondents.

For the (State of Kamataka) M. Veerappa.

The Judgment of the Court was delivered by

SHARMA, J. This appeal under s. 116A of the Representation of the People Act, 1951, is directed against the decision of the Kamatak.a High Court setting aside the election of the appellant D.B. Raju to the State Legislative Council, and directing the recount of the votes after excluding those of 242 nominated members. The election was held by adopting the 'single transferable vote method'. The pol ling took place on 3. 7 .1988 and the counting was taken up on the next date, that is, 4.7.1988. After several rounds of counting the appellant was declared as the successful candidate.

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2. The election in question relates to the Chitradurga Local Authorities Constituency, comprising 121 Manda! Panchayats. The last date and time fixed for receiving nomination papers was 3.00 p.m. on 3.6.1988. According to the appellant's case, a decision was taken by the Chitradurga Zilla Parishad in its special meeting held on 28.5.1988 to nominate two members from each Manda! Panchayat, that is, a total G number of 242 members. Accordingly, steps were taken under the provisions of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Manda! Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as the Parishads Act) read with the rules framed thereunder, and 242 members were duly nominated in time to be included in the electoral roll. This has been denied by the election H

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petitioner-respondent no. 1, as also some of the respondents who con tested the election. According to their case, the inclusion of the names of the nominated members in the electoral roll took place after the period for nomination was over and they were, therefore, not included in the electoral roll in the eye of law. The main question in the case which thus arises is as to whether the names of the 242 nominated members were included in the electoral roll within the time permitted by the law.

The Deputy Commissioner, who was impleaded in the election Y

petition as the 5th respondent (in this appeal also he is respondent No. 5), had triple role to play in connection with the disputed election. He was authorised under the Parishads Act and the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Manda! Panchayats and Nyaya Panchayats (Conduct of Election) Rules, 1985 (hereinafter referred to as the Parishads Rules) to take steps for completing the nomination of the members; under s. 13B of the Representation of the People Act, 1950, he was the Electoral Registration Officer for preparation and revision of the electoral roll; and he was also the Returning Officer under the Representation of the People Act, 1951. According to the case of the appellant, a resolution was passed by the Zilla Parishad on 28.5.1988 nominating the aforementioned 242 members, and the Chief Secretary of the Zilla Parishad sent the list of the names to the Deputy Commissioner on 30.5.1988. The Deputy Commissioner was, under s. 5(9) of the Parishads Act, required to publish the said names so as to complete the process of nomination. He was also vested with the jurisdiction to include the names in the electoral roll under the provi- sions of the Representation of the People Act, 1950. It is relevant to note at this stage that the question of inclusion of the nani~s in the electoral roll could arise only after the nomination was complete in the eye of law. A nominated person was entitled to be included as a voter for the election to the Council Constituency after he became a member of the Manda! Panchayat and not before. Having learnt about the nominations on the eve of the election, some persons challenged the same and objected before the Deputy Commissioner to the proposed publication. However, the Deputy Commissioner on 1.6.1988 passed an order directing the necessary steps to be taken under the Parishads Act, and accordingly a list of the nominated members was pasted on the notice board of the office of the Deputy Commissioner. Before the nominated persons could be treated to have become members of the Panchayats it was necessary that certain other steps also were taken in accordance with the Parishads Act and the Parishads Rules. Sub- section (1) of s. 40 of the Parishads Act, which is mentioned below,

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makes it clear that a nominated person becomes the member of a Manda! Panchayat only on the publication of his name under s. 5(9):

"40. Commencement of term of Office.~

(1) The term of office of the members elected at a general election or at a second election held under sub-section (7) of section 5, or nominated shall commence on the date immediately after the expiry of the term of office of the out-going members of the Manda! Panchayat or the period of appointment of an Administrative Committee or Administrator under section 8, or on the date of publica tion of their names under sub-section (9) of section 5, whichever is later."

The manner of publication of the names has been prescribed by r. 73 of the Parishads Rules in the following terms:

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"73. Publication of names of members elected or nominated to Manda! Panchayat.-The Deputy Commis sioner shall, as soon as conveniently may be, publish the list containing the names of the members elected or deemed to have been elected or nominated to the Marnia! Panchayat by causing such list to be affixed on the notice board of his office, office of the Tahsildar, concerned Manda! Panchayat and in the Chavadi."

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With a view to complete the nomination, the Deputy Commissioner sent out the names for affixing the same on the notice boards of the office of the concerned Tahsildars and Manda! Panchayats and in the Chavadis. The Deputy Commissioner could have taken steps for inclu sion of the names in the electoral roll of the State Council Consti tuency after receipt of the information of their due publication in the offices situated at different places. There is a serious dispute as to when the necessary information became available at CMtradurga and the formal steps of including those names in the electoral roll were actually taken. After examining the evidence led by the parties, the G High Court has held that the names were not included in the electoral roll by 3.00 p.m. on 3.6.1988.

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4. Mr. M.C. Bhandare, the learned counsel appearing in sup port of the appeal, has contended that the High Court ,fell in grave error in deciding the disputed issue against the appellant as it faiied to

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take note of the provisions of the Explanation to s. 40(1) of the Parishads Act, which reads as follows:

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"Explanation.-When the names of members elected at a general election or at a second election held under sub-section (7) of section 5 or nominated are published on more than one date, the date by which the names of not less than 2/3rd of the total number of members has been published shall be deemed to be the date of publication for purposes of this section."

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The learned counsel argued that the evidence on the record establishes that information of the publication of the names of more than 2/3rd of the total number of nominated persons had reached the Deputy Com- missioner in time for the amendment of the Council Constituency roll and the Deputy Commissioner had actually made an order for the inclusion of the names in the roll on 2.6.1988. Accordingly, the final electoral roll including the nominated members was ready in the office D of the Returning Officer, and the appellant, as a matter of fact, had inspected the same. Reliance has been placed on his deposition as well as on the documentary evidence in the case.

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5. The most important evidence in the case is to be found in the statement of the Deputy Commissioner examined as P.W. 4. Besides, the election petitioner examined several other witnesses. An examina- lion of evidence on record leads to the conclusion that the Chief Sec- retary of the Zilla Parishad had sent the list of the nominated members to the Deputy Commissioner on 30.5.1988 and a copy thereof was placed on the notice board of the Deputy Commissioner's office on 1.6.1988. However, that did not complete the process of nomination. F The provisions of s. 40(1) of the Parishads Act make it abundantly clear that a nominated person would become a member of the Panchayat ouly after due publication of his name in accordance with r. 73. It was therefore necessary to have the_ names of the nominated persons affixed on the notice board of the office of the Tahsildars, the notice boards of the Manda! Panchayats and in the Chavadis. Mr. G Bhandare is right that in view of the Explanation to s. 40( 1) it was not necessary for the Deputy Commissoner to have waited for the infor- mation in this regard from all the places. On his satisfaction that the publication of 2/3rd of the total number of the names were complete, he was free to proceed further and to revise the electoral roll under the Representation of the People Act, 1950 by including all the nominated H members. But the question is as to when the Deputy Commissioner

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did receive the information about the 2/3rd of the total nuinber, and further whether he, as a matter of fact, revised the electoral roll.before 3.00 p.m. on the 3rd of June, 1988. It is significant to note that the electoral roll did not get automatically amended on the completion of the process of nomination of the additional members. Ordinarily the question of inclusion of a new name in the .electoral roll arises only when an application is made before the Electoral Rc;gistration Officer in this regard, but the power can be exercised by the Officer even without such an application. In the present case it appears that a tactical battle was going on in the political arena betwe·en the two rival groups; one attempting to get the electoral roll amended by the inclu sion of the nominated members and the other trying to foil it. The Deputy Commissioner was under pressure from both sides, and as the evidence discloses, he had to consider the different stands taken before him, which slowed down the entire process. Let us examine the evidence in this background.

6. The Deputy Commissioner has, in his. evidence, stated that his office received the information about the nomination from the Zilla Parishad on 30.5.1988 when he was at Bangalore. He returned back to Chitradurga on 31.5.1988 and examined a copy of the resolu tion of the Parishad as also the list of the nominated persons. Soon thereafter he was approached by the two groups, one supporting the resolution and the other opposing it. Ultimately he decided to.publish the list as required bys. 5(9) of the Parishads Act read with r. 73 of the Parishads Rules. Accordingly, a copy of the list was placed on the notice board of his office and lists for the publication in the Taluk offices were handed over to the Tahsildars who were already present in Chitradurga. The lists for the publication in the offices of the Manda! Panchayats and Chavadis, which were scattered at considerable dis tances, were sent to the Chief Secretary of the Zilla Parishad. The Deputy Commissioner postponed the further step for modification of the electoral roll awaiting the report on publication from the different offices. Some reports from the Taluk offices were received on 1.6.1988 itself, but the Deputy Commissioner in his evidence was not in a posi tion to give the details. His examination-in-chief was, therefore, discontinued and he was asked to bring the documents on the next date with reference to which he could answer the further questions. Accordingly, he later appeared with the papers and stated that the last reports regarding the publication from the Taluk Office of certain places were received on 4.6.1988. In his cross-examination the Deputy Commissioner stated that on the basis of his records he could say that he had received reports from 5 Taluk Offices only on 1.6.1988, and

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none from the Manda! Pancnayats; and on 2.6.1988 he had received reports about the.publication in the Mandal Pancha}'l!ts from 2 Taluks. As there were only 9 Taluks in his district, it can be presumed that information about the publication of 2/3rd number at Taluk offices had reached the Deputy Commissioner by the evening of the 2nd June, 1988. However, there does not appear to be any relevant evidence available on the records, and none has been shown to us by the learned counsel, with regard to the publication of the requisite number of names in the Manda! Panchayat offices and in the Chavadis. It has been contended on behalf of the appellant that since the burden is om the election petitioner to prove such facts which may vitiate the elec tion, he must fail in the present state of evidence. Before adverting to this aspect we propose to consider the other evidence relating to the revision of the electoral roll.

7. The electoral roll was produced before the High Court and was marked as Ext. P-6. Although it ought to have borne the dates of its preparation and revision, none is to be found there. The inclusion of the names of the nominated members was, according to the evi dence, done by attaching slips to Ext. P-6. The Deputy Commissioner was unable to state as to the date on which Ext. P-6 was prepared and typed. So far the "updated Voters' List" was concerned, it was placed on the notice board of the office of the Deputy Commissioner at 8.55. p.m. on 3.8.1988, after a lot of wrangling between the rival groups. In answer to a question in cross-examination the Deputy Commissioner stated,

"I cannot say if the preparation of this list was complete by 3.00 p.m. on 3.6.1988 as it is a ministerial part of it."

. F As has been mentioned earlier, the dispute about the validity of the belated nominations had been raised on 31.5.1988 before the Deputy Commissioner when he returned to Chitradurga from Bangalore and he took a decision on 1.6.1988 to proceed with the publication so as to complete the process of nomination. According to his statement, which he made after verifying from the documents, the necessary information from the Manda! Panchayats and Chavadis started reach ing him on 2.6.1988. But they were inadequate as they were only from two Taluks. At the earliest the information about the publication of the necessary number of names reached Chitradurga on 3.6.1988 when the two groups were arrayed against each other in his office, one urging the revision of the electoral roll and the other opposing it. The H deadline was 3.00 p.m. on 3.6.1988 which was approaching fast. But it

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is important to note that the Deputy Commissioner was not aware that the period available for the revision of the electoral roll was expiring in the afternoon. He was under a wrong impression that the entire calen der date of 3.6.1988 was available for the purpose. Towards the end of paragraph 3 in his written statement the Deputy Commissioner categorically stated that he "was under a bona fide impression that direction for the inclusion of the name in the electoral roll of the constituency shall be given under Section 23 at any time on the last date for making nominations". In the earlier writ petition between the parties (in which the issue raised was not decided) the respondent no. 5 had made a similar statement in paragraph 2 of his reply. Being under that wrong impression he was not in a hurry to take the decision in regard. to the revision of the electoral roll quickly. The election petitioner, P. W. 1, was himself not a candidate but was an active supporter of one of the candidates and was seriously involved in the question of the revision of the roll, and; as stated in his evidence, the publication of the names under r. 73 of the Parishads Rules was comp lete by 3.6.1988 only in some of the Mandal Panchayats. After the deadline at 3.00 p.m. on 3.6.1988 was crossed an application, which has been marked as 'Annexure R-III', signed by the Secretary, District J anata Party, was given to the Deputy Commissioner asserting that no further additioljs or deletions in the electoral roll were permissible and an endorsement to that effect should be made by the Returning Officer. The Deputy Commissioner did not immediately give his reply thereto. The partie.s were also insisting for the publication of the electoral roll in its final shape. According to the further evidence of P. W. 1, the Deputy Commissioner promised them that he would con tact the Chief Electoral Officer at Bangalore by telephone and only thereafter he would decide on his further action. The party workers including the witness awaited the further development and at 8 .. 55 p.m. the Deputy Commissioner declared that the names of the newly nominated members were included in the voters list. Soon thereafter he also replied to the letter of the Janata Party Secretary by a letter headed as "ENDORSEMENT", stating,

"With reference to the above, you are hereby informed that action has been taken to include the nominated members by the Zilla Parishad to the Mandal Panchayat in the District and as per Section 27(c) read with Section 23(3) of the R.P. Act, 1950, the Electoral Roll for Local Authority Constituency has been up-dated and a copy pasted in the office on 3rd June 1988 at 8.55 P .M."

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A Two other Janata Party members have been examined as P.Ws, 2 and

3 in the case supporting the above version.

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8. Mr. Bhandare has relied upon the oral evidence of the appel lant wherein he claimed to have gone to the office of the Deputy Commissioner on 2.6.1988 to secure a prescribed form for filing his B nomination as a candidate in the election and was allowed to examine the electoral roll which was kept on a table in the office. He asserts that after verifying his name and serial number in the list he discovered that the names of nominated members were also included therein. He stuck to this story in the cross-examination and insisted that it was at I 1.00 in the morning on 2.6.1988 that he had seen the revised roll. It is C difficult to accept his case on this evidence. According~ to the Deputy Commissioner himself the report about the publication in the office of the Manda! Panchayats from only two Taluks were received by the evening of 2.6.1988 and it is, therefore, not believable that the Deputy ~ Commissioner had amended the roll before 3.6.1988. The Deputy Commissioner has not claimed to have revised the roll on 2.6.1988. On the other hand, he made a very significant assertion in his written statement in the present election petition which is quoted below:

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"The Deputy Commissioner issued direction for the inclu sion of the names of nominated members on 3.6.1988 and the electoral roll for local Authorities Constituency has been up-dated and a copy pasted in the office on 3.6.1988 at 8.55 P.M."

In the earlier writ petition also he had made a similar statement, as mentioned below, towards the end of paragraph 2 of his reply:

"The Deputy Commissioner issued direction for the inclu sion of the name of Respondents 3 to 246 on 3-6-1988 and the electoral roll for Local Authorities Constituency has been up-dated and a copy pasted in the office on 3-6-1988 at 8-55 P.M."

G A plain reading of the above statement suggests that both the up dating of the electoral roll and pasting a copy thereof took place on 3.6.1988 at 8.55 p.m. The statement cannot be interpreted to mean that the revision of the electoral roll had been done about 6 hours earlier. The circumstances that (i) the Deputy Commissioner was not able to assert in his evidence before the Court that the revision of the H roll had taken place before 3.00 p.m.; (ii) he was under an impression

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that the revision was permissible till the midnight; and (iii) in spite of the available documents to him he was not in a position to assert that the report of publication of the names of 2/3rd or more of the nominated persons in the offices of the Manda! Panchayats had been received in his office before the deadline, strongly support the case of the election petitioner.

9. It has been contended on behalf of the appellant that the burden to prove that the names of the nominated members were not included in the electoral roll in time is on the election petitioner and unless he is able to lead acceptable evidence to discharge the same, the election petition is bound to fail. The argument is that the oral evi dence led by the petitioner cannot be accepted for recording a finding that the controversial names had not actually been included in the electoral roll before 3.00 p.m. which was in the custody of the Deputy Commissioner. The fact that political opponents of the appellant who were opposing the inclusion of the names were repeatedly asking the Deputy Commissioner orally as well as in writing to inform them whether the names were actually included in the electoral roll or not itself shows that they could not be sure of the actual position till 8.55 p.m. The bald assertion of the witnesses for the petitioner in this regard cannot be given much weight. Thus the position, according to the learned counsel, available from the records of the case is that there is no reliable evidence on the crucial issue and, therefore, the election petition must be dismissed.

10. Apart from supporting the finding of fact recorded by the High Court in favour of the election petitioner, Mr. Shanti Bhushan, learned counsel for the respondents, argued that the electoral roll must be held to have been modified in the eye of law only at 8.55 p.m. when the alleged inclusion of the names was made public and not earlier. He ralied upon the decision in Bachhittar Singh v. State of Punjab, [ 1962] Supp. 3 SCR 713. The appellant in that case was appointed as a Kanungo and later promoted as Assistant Consolida tion Officer in the former State of Pepsu. A departmental inquiry was held against him as a result of which he was dismissed by the Revenue Secretary. He preferred an appeal to the State Government. The Revenue Minister expressed his opinion in writing that instead of his dismissal he should be reverted to his original post of Kanungo. The said remarks were, however, not communicated to the appellant offi cially and the State of Pepsu was merged with the State of Punjab. The matter was thereafter re-examined and the Chief Minister passed an order confirming the dismissal of the appellant. This order was com-

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municated to the appellant which led to the filing of the writ petition in the High Court. The High Court dismissed the writ application and the appellant appealed before this Court by special leave. One of the questions considered by this Court was as to the effect of the order in writing by the Revenue Minister, Pepsu, recommending reviersion of the appellant in place of his dismissal. For the reasons, mentioned below, the Court held that the order of the Revenue Minister was of no avail to the appellant.

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"Thus it is of essence that the .order has to be com- V munciated to the person who would be affected by that order before the State and that person can be bound by that order. For until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as any- thing more than provisional in character."

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11. As has been pointed out earlier, the evidence of the appel- lant that he had actually seen the final voters list in the office of the Deputy Commissioner must be rejected as unreliable. There is no acceptable evidence at all to show as to when the alleged corrections were made in the voters list. At 8.55 p.m. on 3.6.1988 the inclusion of the names was made public for the first time. The question is as to whether the electoral roll will be deemed to have been modified when it was made public at 8.55 p.m. or earlier when the actual correction in the list was made in the Deputy Commissioner's office which fact was kept confidential in spite of repeated demands for information.

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12. Besides fixing the identity of the persons to be allowed to F vote at the election, the purpose of the preparation of the roll is to enable the persons included therein to decide as to whether they would like to contest the election. It is also helpful to such persons in asses sing their chances of success by reference to the voters finally included in the roll. For the purpose of canvassing also, the intending contestant requires a copy of the final voters' list. The intending contestants and their supporters thus heavily depend upon the final electoral roll for deciding their future conduct, and it is, therefore, extremely essential that it is made available to them before the expiry of the period fixed for filing the nomination papers. It the roll as it stood earlier, was confidentially corrected by the Electoral Ragistration Officer con cerned sitting in his office which did not see the light of the day, the H same cannot be considered to have been prepared according to law.

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The observations in Bachhittar Singh's case will be fully applicable in as much as the Officer here also could reconsider the list again.

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13. Mr. Bhandare in reply relied upon the judgment in B.K. Sr.inivasan and Others v. State of Karnataka and Others, [ 1987) 1 SCC 658, and argued that unlike the Karnataka Town and Country Plan ning Act, 1961 and the Rules which were under consideration in the said case, the Representation of the People Act does not require a display of the electoral roll. The learned counsel is correct and he rightly said that putting the final voters list on the notice board is not a necessary requirement under the Jaw. But that does not lead to the further conclusion that the electoral roll can be prepared secretly and kept in the drawers of the Officer without any information or knowledge to perso.ns who are interested in finding out its final shape. The reported case was dealing with the principle of subordinate legis lation and in paragraph 15 of the judgment made important observa tions which support the respondents' point of view. It was stated thus:

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"There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various process. Whether law is viewed from the standpoint of the 'conscientious good man' seeking to abide by the law or from the standpoint of Justice Holmes's 'Unconscientious bad man' seeking to avoid the Jaw, law must be known, that is to .say, it must be so made that it can be known."

It was further observed that unlike Parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary and it was, therefore, necessary that subordinate legislation in order to take effect must be published or promu!gated in some suitable manner whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. The decision instead of helping the appellant is clearly against him.

14. The vital difference between an Act of a legislature and a subordinate legislation was earlier noted in Har/av. State of Rajasthan, [ 1952) SCR 110. The Acts of the legislature are passed by the ac credited representatives of the people who in theory can be trusted to

B

c

D

E

F

G

H

350

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[1990[ 3 S.C.R.

see that their constituents know what has been done, and this is done only after debates take place which are open to the public. The matter receives wide publicity through the media. But the case is different with the delegated legislation and, if we may add, also in the case of orders passed by the authorities like that in the present appeal before us. The mode of publication can vary but there must be reasonable publication of some sort. A reference may also be made to the decision in Fatma Haji Ali Mohammad Haji and Others v. The State of Bombay,, [ 1951] SCR 266, where the question as to whether certain powers given to the Government for issuing a direction to the Col lector not to act in accordance with the prescribed rules had been actually exercised or not was under consideration. It was stated that the power had to be exercised in clear and unambiguous terms and,

A

B

c

"the decision that the power has been exercised should be notified in the usual manner in which such decisions are made known to the public."

D Before closing this discussion we should refer to the case of State of Maharashtra v. Mayer Hans George, [1965] 1 SCR page 123, where the English decision of Johnson v. Saragant & Sons, [1918] 1 K. B. 101, relied upon by this Court in Harla's case came to be considered. The respondent Mayer Hans George was a German Smuggler who was carrying gold from Switzerland to Manila by an aeroplane which stop- E ped at Bombay for sometime. The respondent did not get down from the plane but he was searched by the Indian Officers and was found to be carrying gold illegally. He was charged with criminal activity on the basis of a notification requiring him to declare the gold as tranship ment cargo in the manifest of the aircraft, which he had failed to do. His defence was that he had no knowledge of this notification. After F his conviction by the trial court, the High Court on appeal acquitted him. The Supreme Court by a majority judgment reversed the decision and found him guilty on the ground that the notification had been published in the official gazette of India. The defence plea that since he was a foreigner and was, therefore, not expected to be aware of the notification was rejected. While discussing the arguments addressed in the case, the Court appreciated the criticism of Prof. C.K. Allen against the judgment in Johnson v. Sargant, but there was,no comment or suggestion _against the correctness of the judgment in Har/av. The State of Rajasthan. On the other hand, the observations at page 163-G -H are on the same lines. It was stated that where there is no statutory requ_irement as to the mode or form of publication, "we conceive the rule to be that it is necessary that it should be published in the usual

G

H

D.B. RAJTJ v. H.J. KANTIIARAJ [SHARMA, J.)

351

form i.e., by publication within the country in such media as generally adopted to notify to all persons concerned the making of the rules." Having regard to the nature and purpose of the power for rectification of the electoral roll by the Ele.ctoral Registration Officer, the principle enunciated in the abovementioned cases must be held to be applicable. We accordingly hold that in the eye of law the electoral roll in question was not modified by the inclusion of the names of the nominated ·members before 8.55p.m. on 3.6.1988. We, therefore, affirm the deci· sion of the High Court and dismiss the appeal with costs.

A

B

R.S.S.

Appeal dismissed.

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