SURENDRASINHAJI JORAWARASINHJI JHALA Vs. U M BHATTA

JUDGEMENT

(1.) Yesterday, on the conclusion of the arguments, we passed an order allowing the petition and making the rule absolute by issuing a writ of certiorari quashing and setting aside the order of the first respondent dated 12th January 1967. We now proceed to state our reasons for making the order.

(2.) The Petitioner is the erstwhile Ruler of the quondam State of Wadhwan. Though according to the petitioner, he was ordinarily resident in Wadhwan, his name did not appear in the electoral roll for the Wadhwan Assembly Constituency and he, therefore, made an application to the Electoral Registration Officer for inclusion of his name in the electoral roll of the Wadhwan Assembly Constituency under Section 23 of the Representation of the People Act, 1950. The application was on a printed form which was supplied by the Electoral Registration Officer on a request being made in that behalf, and it was supported by one Trambaklal Mohanlal Dave, who was an elector on the electoral roll of the Wadhwan Assembly Constituency. The application was made on 15th December 1966 and on 17th December 1966 the Electoral Registration Officer directed that one copy of the application be posted in some conspicuous place in his office together with notice inviting objections to the application. The third respondent who was also an elector on the electoral roll of the Wadhwan Assembly constituency thereupon preferred his objections against the inclusion of the name of the petitioner in the electoral roll on 23rd December 1966. The hearing of the application was fixed on 26th December 1986 and on that day an affidavit of the petitioner was filed in support of the application. The third respondent also filed two affidavits, one dated 23rd December 1966 and the other dated 26th December 1966. On the next date of the hearing, namely, 3rd January 1967, the petitioner raised a preliminary objection that the inquiry which was being held was not an inquiry under Rule 20 of the Registration of Electors Rules, 1960, and, therefore, though the objections of the third respondent might be considered, the third respondent was not entitled to be heard by the Electoral Registration Officer. This preliminary objection was rejected by the Electoral Registration Officer by an order dated 3rd January 1967 and he immediately thereafter proceeded to hold the inquiry for the purpose of determining whether the application should be granted or not. The petitioner gave evidence and so did the third respondent, one Chandrakant Karunashankar, the Revenue Aval Karkun. The question debated before the Electoral Registration Officer was whether the petitioner was ordinarily resident in Wadhwan Assembly Constituency so as to be entitled to have his name included in the electoral roll for that constituency and on this question the Electoral Registration Officer, after considering all the facts came to the conclusion that the petitioner was ordinarily resident in Wadhwan and he accordingly, by an order dated 4th January 1967, directed the inclusion of the name of the petitioner in the electoral roll for the Wadhwan Assembly Constituency at Serial No. 731 in Ward No. 9 Part 71. The third respondent thereupon preferred an appeal to the Chief Electoral Officer on 5th January 1967. At the hearing of the appeal on 12th January 1967, the petitioner raised a preliminary contention against the maintainability of the appeal at the instance of the third respondent, but the preliminary contention was negatived and the appeal was heard on merits. The Chief Electoral Officer by his order dated 12th January 1967, allowed the appeal on two grounds. One was that the application made by the petitioner was not in the prescribed form as required by Rule 26 of the Registration of Electors Rules, 1960, and the other was that the petitioner was not Ordinarily resident in Wadhwan and was, therefore, not entitled to have his name included in the electoral roll for the Wadhwan Assembly Constituency. This decision of the Chief Electoral Officer is challenged on the present petition which is filed under Art. 226 of the Constitution.

(3.) When the hearing of the petition commenced, a preliminary objection was raised on behalf of the third respondent that the petition was not maintainable as the High Court had no jurisdiction to interfere with the order of the Chief Electoral Officer under Article 226 of the Constitution. Now Article 226 confers power on the High Court to issue an appropriate writ to any person or authority within its territorial jurisdiction in terms absolute and unqualified and the Chief Electoral Officer functioning within the territorial jurisdiction of the High Court would fall within the sweep of that power. This power conferred by Article 226 being constitutional power, if we are to recognise or admit any limitation on this power, that must be found in some provision of the Constitution itself. Mr. S.K. Zaveri, on behalf of the third respondent, contended that such limitation has been imposed by two provisions of the Constitution, one being Article 329(b) and the other being Article 829 (a) read with Section 30 of the Representation of the People Act, 1950. We will first examine the contention based on Article 329(b) for that was the principal contention urged before us.