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Judgment
L.M. Paranjpe, J.—In this writ petition under Articles 226 and 227 of the Constitution, the petitioners have prayed for a writ of certiorari to quash the appellate order passed by the Collector, Amravati, whereby the order passed by the Electoral Registration Officer was set aside.
The facts which have given rise to this writ petition are in a brief compass. The respondent No. 3 Daulatrao Laxmanrao Thakre, hereinafter referred to by his surname Thakre, is a medical practitioner residing at Warud, tahsil Morshi, district Amravati. He has some property at village Wathoda which is four miles away from Warud. Both Warud and Wathoda are included in the Morshi Assembly Constituency. In the General Elections of 1962, he voted as a voter from Warud where he was registered as a voter. The electoral rolls for the General Elections are taken as the basis for the elections to Zilla Parishads and Panchayat Samitis. In the elections to Zilla Parishads held in the year 1962, he got his name included in the electoral roll of the Rajura Constituency by claiming to be a resident of Wathoda. He contested as a candidate for the Zilla Parishad elections and was elected. That election was challenged by the petitioner No. 1 by an election petition filed before the Assistant Judge, Amravati, on the ground that Thakre, who was a resident of the municipal town of Warud, was not a resident of Wathoda and was not entitled to contest the election from the Rajura Constituency. After recording evidence, the Assistant Judge found, on facts, that Thakre was ordinarily a resident of Warud and not of Wathoda, but he dismissed the election petition on the ground that the electoral roll for the Assembly Constituency was binding and could not be challenged in an election petition. The petitioner No. 1 moved this Court by a writ petition in Special Civil Application No. 318 of 1963 decided on 1-10-1964. That petition was rejected on the ground that the electoral roll for the Assembly Constituency, on the basis of which the election to the Zilla Parishad was held, was conclusive and could not be challenged in an election petition.
At the commencement of the year 1966, revision of the general electoral rolls wad taken in hand by the revenue authorities in accordance with section 21 of the Representation of the People Act, 1950. Thakre gave a declaration, on solemn affirmation (Annexure 1), that he and his family were Residing at house No. 306 at Warud on 1-1-1966. A provisional Voter''s list was prepared on the basis of the declarations and other information collected by the Electoral Registration Officer, and in the Voter''s list for ward No. 11 of Warud where Thakre resides, his name was shown at serial No. 106, and the names of the members of his family were shown at serial numbers 107 to 109. A notice in Form No. 5 under rule 10 of the Registration of Electors Rules, 1960, was issued by the Electoral Registration Officer for inviting claims and objections to the provisional list. Thakre raised no objection to the entry of his name in the electoral roll for the Warud municipal town. The petitioners however filed an objection before the Electoral Registration Officer for claiming deletion of the name of Thakre from the electoral roll for the village Wathoda, because the name of Thakre was included in both the parts of the electoral roll of the Morshi Assembly Constituency by showing him as a resident of Warud as well as of Wathoda. The Electoral Registration Officer received oral and documentary evidence and on considering that evidence at great length, held by his order (Annexure 4) that Thakre was ordinarily a resident of Warud and was not a resident of Wathoda, and therefore, his name appearing in the voters'' list of the village Wathoda should be deleted. Being aggrieved by that order, Thakre appealed to the Collector, Amravati, by his memorandum of appeal (Annexure 6). The appeal was allowed by the Collector, who set aside the order of the Electoral Registration Officer, and restored the name of Thakre in the voters'' list of the village Wathoda.
The petitioners contend that Thakre, who is a resident of Warud only, had managed to get himself elected by showing himself as a resident of Wathoda, and on the strength of the election, had occupied public offices as a member of the Zilla Parishad and as President of the Panchayat Samiti. He did not take any steps to get the preliminary electoral roll corrected by deleting his name from Wathoda where he does not reside or from Warud where he actually resides, so that his name may not remain in both the lists. The inclusion of his name in both the constituencies was in violation of the provisions of the Representation of the People Act, and the Electoral Registration Officer had rightly found on facts that Thakre was not a resident of Wathoda and was therefore not entitled to have his name retained in the rural part of that constituency. The Collector had no jurisdiction to entertain an appeal or to interfere with the order of the Electoral Registration Officer. Even if he had jurisdiction, the Collector had not questioned the finding of fact that Thakre was a resident of Warud and had proceeded to reverse the order of the Electoral Registration Officer on a misapprehension of the provisions of the Representation of the People Act. The appellate order suffered from an error apparent on the face of the record and was liable to be quashed.
In his return, Thakre challenged the maintainability of the petition on the following grounds: The petitioners were not recorded electors of Warud and were not affected by the impugned order and had no right to challenge it. Though he was residing at Warud, he had his dispensary at Wathoda and had never given up his residence and cultivation at Wathoda. After 1962-63, he has devoted a major part of his time towards his dispensary and agriculture at Wathoda. For the years 1962 to 1966, his name was shown as an elector at Wathoda and not at Warud. He has been the Chairman of the Panchayat Samiti, Warud, and in that capacity he has to reside at Warud for his official duties as per section 69 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961. Since he is so compulsorily required to stay at Warud in his capacity as the Chairman of the Panchayat Samiti, he had to give his declaration that he was staying at Warud, though he had his place of business, property and residential accommodation at Wathoda. It was under the Maharashtra Act No. XXXIV of 1966 that his name at Warud, where he had his official residence, was deleted and it was continued at Wathoda. The averments of the petitioners with regard to his election to the Zilla Parishad and the election petition were irrelevant for the purposes of this petition. His name was now shown as a resident of both the places, though he had not applied for inclusion of his name at Warud. He did not apply for omitting his name from the Warud list or to retain it at Wathoda as there was no question of his name being at Warud till the elections of 1962. The order passed by the Collector was with jurisdiction and was proper and legal. The electoral rolls are revised every year and the qualifications of residence have to be judged with reference to the qualifying date. The order of the Collector was consistent with justice and the existing law. In consequence of his application for deleting his name from Warud, his name has now been removed from the Warud list and he is a voter only from Wathoda as from 10-1-1967. The petition is liable to be dismissed.
Mr. Mandlekar, Advocate for Thakre, raised a preliminary objection to the maintainability of this writ petition. According to him, the petition must be dismissed, firstly because, the question of jurisdiction of the Collector to hear and decide an appeal was never raised before the Collector, and secondly because the petitioners had no right which has been infringed by the impugned order and therefore they cannot be said to be aggrieved by the order. Mr. Masodkar, advocate for the petitioners, contended, on the other hand, that though no question of jurisdiction was raised before the Collector, there was an entire lack of jurisdiction and the question of jurisdiction could be raised for the first time in this Court. He also stated that the petitioners were aggrieved by the order, because they apprehend that in case the electoral roll is not corrected now, it would be treated as the basis for the next Zilla Parishad elections and Thakre would be able to get elected from Wathoda and enjoy the fruits of the public offices without being entitled to them under the law.
Mr. Mandlekar was mainly relying on a Division Bench, decision of this Court in G. M. T. Society v. Bombay State AIR 1964 Bom. 202 wherein it was held that the question of jurisdiction of a Tribunal could not be allowed to be raised for the first time in a writ petition if it had not been raised before the Tribunal. He also relied on some other decisions of this Court which had taken the same view. The aforesaid decision in G. M. T. Society v. Bombay State (1) was no doubt followed in Appa Shivling v. Vithal Baba 1959 NLJ 497 and Special Civil Application Nos. 337 to 339 of 1959 decided on 26-IQ-1960 and Special Civil Application Nos. 77 to 81 of 1959 deckled on 4-10-1960. However, there are numerous other cases where a different view has been taken. Chagla C. J., who had delivered the judgment in G. M. T. Society''s case (1) made the following observations in S.C. Prashar and Another Vs. Vasantsen Dwarkadas and Others, :
Evolve we go further with this case it may be pointed out that there is a line of cases where it has been held that if a party does not object to jurisdiction at the earliest stage and sits on the fence and takes his chance which way the tribunal will decide, it is not open to him then to come to the Court and challenge the jurisdiction by asking for a writ under Article 226 because he lost before that tribunal.
But as this judgment points out, those would be cases where the want of jurisdiction would not be apparent, where it may be that some fact would have to be proved by the party or some action to be taken by the party, and the Court would take into consideration the acquiescence of the party in submitting to the jurisdiction of the tribunal.
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Therefore, these authorities clearly establish that a patent -want of jurisdiction entitles the petitioner to obtain immediately relief from the High Court, even though he could raise the plea of want of jurisdiction in a higher tribunal and even though, as the English cases point out, he may have acquiesced in the want of jurisdiction.
There are numerous decisions of several other High Courts, as also of the Supreme Court, which have been referred to by a Division Bench of this Court in. Gopikisan Agarwal v. District Judge, Bhandara (l)v wherein it was held that a point of jurisdiction can be raised in this Court for the first time even if the party had not raised it before the lower forum. In view of all these authorities, we are not prepared to accept the contention of Mr. Mandlekar that the petitioners cannot be allowed to raise this question of jurisdiction, particularly in view of the fact, as we will show later, that the present case is one of entire want of jurisdiction of the part of the Collector. His first objection must stand overruled.
As regards the second objection, we do not think it possible to ignore the previous facts by characterising them as irrelevant as was done in the return of Thakre. As far back as the year 1963, the Assistant Judge had found on facts that Thakre was not a resident of Wathoda but was a resident of Warud only, and yet, had manage 1 to get himself elected to the Zilla Parishad from the rural constituency of Wathoda, merely because entries in the electoral rolls for the General Elections are conclusive u/s 18 of the Maharashtra Zilla Parishads and Panchayat Samitis Act and cannot be questioned in an election petition filed under that Act. Finding that the name of Thakre was entered in the municipal portion of the Morshi Assembly Constituency at Warud, as also in the rural portion of Wathoda, the petitioners rightly apprehended that Thakre would again seek election to the Zilla Parishad on the basis of the same electoral roll, though he was not legally entitled to do it on the basis of the fact that he was not a resident of Wathoda. Because of that apprehension, they raised an objection to the inclusion of the name of Thakre in the list of Wathoda and succeeded in having that name deleted. The effect of the Collector''s order, as it stands, was to restore the name of Thakre in the list of Wathoda as well, and if that list as corrected in consequence of the Collector''s order remained unchallenged, the petitioners would be precluded from challenging the eventual election of Thakre to the Zilla Parishad on this same ground. Consequently, there is no force in the contention of Mr. Mandlekar that the petitioners are not in any manner aggrieved by the order.
Mr. Mandlekar was then submitting that even if the petitioners had such an apprehension, the name of Thakre was now deleted from the list of Warud as from 10-1-1967 and therefore there was no question of his being shown as a voter in two parts of the same constituency. Apart from the question whether that name could have been deleted from the list of Warud in the manner it was done, this subsequent change by retaining his name only at Wathoda would not mitigate the grievance of the petitioners who contend that Thakre is not entitled to be a voter at Wathoda where he does not reside and to contest the Zilla Parishad elections from Wathoda on the basis of that voters'' list. Looking to the history of the manner in which Thakre got his name included in the list of Wathoda and assured his election from the rural area, which he was not entitled to do, it cannot be said that the petitioners are not aggrieved by the impugned orders of the Collector. The second objection also must therefore fail.
We think it necessary here to refer to certain provisions of the Representation of the People Act, 1950. u/s 18, no person shall be entitled to be registered in the electoral roll for any constituency more than once, and the condition of registration is that he must not be less than twenty-one years of age on the qualifying date, and is ordinarily resident in the constituency. Section 20 gives the meaning of "ordinarily resident". According to that section, 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 a dwelling house therein. Sub-section (1A) of that section further provides that a person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein. In view of these provisions and the findings of fact by the Assistant Judge in the election petition, as also by the Electoral Registration Officer in his order, annexure 4, that Thakre is a resident of Warud only and not of Wathoda, Thakre could have been enrolled as a voter only in the municipal town of Warud in the Morshi Assembly Constituency and he would not be entitled to be enrolled at Wathoda even though he may have a residential house or some lands at that place, because he is not "ordinarily resident" of that place. The order passed by the Electoral Registration Officer was in accordance with rule 20 of the Rules which have been framed under the powers given by section 28 of the Representation of the People Act. The important question arising for consideration is whether an appeal against that order lies to the Collector or not.
The order passed by the Electoral Registration Officer under rule 20 was for correction of entries in the electoral rolls by deleting the name of Thakre as per section 22 of the Representation of the People Act, 1950. At one stage, Mr. Mandlekar was disputing the position that this order was for correction of entries, but on analysing what the objection was and what was the order thereon, he did not seriously dispute the correctness of the position that the order of the Electoral Registration Officer was by way of a correction of the entries by deleting the name of Thakre from the Wathoda list as per clause (c) of that section. Section 24, which was included by the Amending Act No. 40 of 1961 as from 20-9-1961, is in the following terms:
Appeals: An appeal shall lie within such time and in such manner as may be prescribed to the chief electoral officer from any order of the electoral registration officer u/s 22 or section 23.
It is not necessary to refer to the other provisions of the Act for an appeal to the Election Commission which has now been deleted. u/s 13A of the Representation of the People Act, 1950, there shall be for each State a Chief Electoral Officer, who has been referred to in section 24. The Chief Electoral Officer of this State is posted at Bombay, and the respondent No. 1, who was and continues to be the Collector of Amravati to this date, cannot obviously be equated to the Chief Electoral Officer for the State. At one stage of the arguments, Mr. Mandlekar was trying to submit that the Collector, Amravati, who had decided the appeal, should be treated as the Chief Electoral Officer, but we cannot see our way to do that because he has not been so appointed and because he has never purported to act as such Chief Electoral Officer. When he admittedly proceeded to entertain and hear the appeal as the Collector, it will have to be seen whether he was or could be said to have been authorised to hear such appeals as the Collector of the district. With section 24 as it stands, there can be no manner of doubt that the Collector, who was not the Chief Electoral Officer, was not empowered to hear and decide this appeal, and therefore he clearly acted without jurisdiction in entertaining and hearing this appeal.
Mr. Mandlekar was contending that despite the provisions of section 24 as introduced in the Act, the Collector had jurisdiction under rule 23 of the Registration of Electors Rules, 1960. This rule provides that an appeal shall lie from any decision of the registration officer under rule 20 or rule 21 to "such officer of Government as the Election Commission may designate in this behalf". Thakre had not even averred in his return that the Collector, Amravati, was designated as an appellate officer by the Election Commission as per this rule. Mr. Mandlekar was wanting us to assume that he must have been so designated, or else he would not have entertained the appeal. We do not think that we can make any such assumptions when nothing was placed before us to indicate that the Collector was designated such an officer by the Election Commission. In the absence of such designation by the Election Commission, the Collector could not be said to have derived his authority even under rule 23. Therefore, the order by the Collector cannot be justified under colour of rule 23. We would like to mention that apart from this impediment, the Collector had not purported to act only under this rule but had entertained and decided the Appeal u/s 24, and we have already indicated that that section does not authorise him to hear and decide such appeals.
Mr. Mandlekar was contending at one stage that it was for the petitioners to show that the Collector was not designated as an appellate officer by the Election Commission, and when they have not shown it, it would be proper to assume that he was so empowered. Even if such an assumption could be made, that rule cannot be availed of by the respondent, because it must necessarily be deemed to be superseded or repealed by implication as soon as section 24, which made an entirely different provision with regard to appeals, was brought on the statute book.
Mr. Mandlekar was then submitting that the Collector had jurisdiction to decide this matter u/s 13 (IA) of the Zilla Parishads and Panchayat Samitis Act, which was added by the Third Amendment Act No. 34 of 1966. According to him, this section was added by amendment on the authority of Article 328 of the Constitution. We do not think that this submission can be accepted. Article 328 of the Constitution lays down that subject to the provisions of the Constitution and in so far as provision in that, behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses. There was nothing to show that the Maharashtra Legislature had purported to act under this Article of the Constitution. If they had a purported to act, the preamble to the Act or the Objects and Reasons therefore would hare stated that since there Was a particular lacuna which was not provided for by Parliament, they were proceeding to make this provision under colour of Article 328. Moreover, Article 328 would necessarily have to be read with Article 325 which prescribes for the preparation of one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State. The State Legislature could have proceeded to act under Article 328 if they had considered that there was a lacuna in the provisions made by Parliament with regard to the preparation of one general electoral roll for every territorial constituency, and then only the powers under Article 328 could have come into operation. We are therefore not prepared to accept this submission of Mr. Mandlekar.
Even if it were to be assumed in favour of Mr. Mandlekar that this Amending Act No. 34 of 1966 was passed by the State Legislature under powers given to it by Article 328, a perusal of the amendment made by it by introducing section 13(1 A) would not warrant the claim of Mr. Mandlekar that the Collector was given any such power to entertain and hear appeals against orders passed by the Electoral Registration Officer. That section is in the following words:
13 (1A). Notwithstanding anything ID this Act, or it any of the law for the time being in force, in respect of a presiding authority who by reason of his office is provided with residential accommodation or house-rent in lieu thereof by or under the provisions of that Act and who ceases to be ordinarily resident during his term of office in any electoral division in the District by reason of his absence therefrom in connection with his duties as such authority, but is ordinarily resident in any place outside the District of the Zilla Parishad in respect of which he is such authority, and in consequence whereof his name is not in the list of voters for any electoral division in the District, then, in such case, the Collector shall amend the list of voters so as to enable such presiding authority to be registered in the electoral division in which but for holding such office he would have been ordinarily resident. The manner in which the list of voters shall be amended for the purposes aforesaid, and all matters supplementary, consequential and incidental thereto shall be as are provided by rules made in this behalf.
That sub-section will have to be read with the definition of "district" as given in the Zilla Parishad and Panchayat Samitis Act. u/s 2 (11) of that Act, "district" means a district as constituted u/s 4. According to section 4, "district" means every local area formed or constituted into a district under the relevant Code but excluding therefrom the limits of a municipal corporation or a municipality. Read with this definition, the amendment would mean that if an official of the Zilla Parishad or Panchayat Samiti, who ceases to reside in any electoral division in the district (under the Zilla Parishads Act) by reason of his absence therefrom in connection with his duties as such authority but is ordinarily resident in any place outside the district of the Zila Parishad and is therefore not included in the list of voters for any electoral division in that district, then in such a case, the Collector shall amend the list of voters so as to enable such an authority to be registered in the electoral division in which but for holding such office he would have been ordinarily resident. This section could come into operation only if Thakre was ordinarily resident of Wathoda and had to shift to Warud outside the Zilla Parishad district, because a residential accommodation was provided for him by reason of his office. In view of the finding of fact that Thakre was not ordinarily resident of Wathoda, the condition precedent for the operation of this section did not exist and there was no question of the order being passed by the Collector under that section. Moreover, This amended section of the Act requires the Collector to act as the original authority to correct the list and does not give any powers of superintendence or appeal over the Electoral Registration Officer. In the present case, the Collector has not purported be act as the original authority but has assumed the jurisdiction of an appellate Court, which has not been given to him even by this amendment. This amendment has no relevance whatsoever to the question with, which we are concerned in this petition.
Lastly, Mr. Mandlekar was submitting that the Collector in his powers of superintendence over his subordinate revenue officers, had proceeded to correct the mistake committed by the Electoral Registration Officer, by deleting the name of Thakre from the list of voters at Wathoda. Whatever powers of superintendence the Collector might have over his subordinate revenue officers, that has no relevance to the special powers given to the Electoral Registration Officer under the Representation of the People Act, 1950, and the rules thereunder. The right to vote is not a common law right but is the creation of statute and the procedure for securing and exercising such right to vote has been specially prescribed by the Act of Parliament. The Collector cannot therefore assume jurisdiction over matters for which different authorities have been prescribed by the Acts of Parliament.
Mr. Mandlekar did not show any other ground for supporting his contention that the appellate order passed by the Collector was with jurisdiction. On the contrary, we find that he had no such, power or jurisdiction and he acted entirely without jurisdiction and not only in excess of jurisdiction in proceeding to entertain and decide the appeal and to correct the orders passed by the Electoral Registration Officer. The appellate order of the Collector will have to be quashed for that reason.
Even if it were to be assumed that the Collector had powers of entertaining and deciding the appeal, a perusal of his order would show that he completely mis-apprehended the provisions of the Representation of the People Act and the rules thereunder. The Electoral Registration Officer had considered the entire factual and legal position in his elaborated order and had found on fact that Thakre was ordinarily a resident of Warud and he was not a resident of Wathoda and therefore was not entitled to be enrolled as a voter from Wathoda. The correctness of this finding of fact was not questioned by the learned Collector, but he made the following observations:
There is no doubt that there is overwhelming evidence to show that the appellant has been residing at Warud even since 1936-37. That he has purchased property in his name at Warud. That he had himself applied for registration as a voter at Warud. The case of the appellant, however, is that he has also been having his ancestral property at Wathoda, that he has his dispensary and a house at Wathoda and that he has not severed his ties with that village.
In making these observations, the learned Collector has completely overlooked the provisions of sections 18, 19 and 20 of the Representation of the People Act to which we have already made a reference. In accordance with section 20, the fact that he had only a residential house at Wathoda would not entitle him to say that he was ordinarily resident of that place. After stating that on the basis of the documentary evidence mainly, the Electoral Registration Officer had come to the conclusion that Thakre had failed to prove his being ordinarily resident at village Wathoda, the Collector went on to observe:
I would like to dwell more on the fact whether the appellant cannot be registered as a voter in Wathoda, on the basis of the facts brought out during the enquiry. Even assuming that the appellant has not been residing at Wathoda it is clear from the perusal of the record that he holds his property there, that he has his ancestral ties with the place, that he has opted to get himself elected to the Panchayat Samiti as a voter from that place, and that he calls Wathoda as his home. Merely because he has not been regularly residing at Wathoda because of other occupations which he pursues, it cannot be said that he has ceased to belong to Wathoda. In spite of all the evidence against him, therefore, I feet that more credence must be given to what he calls his place of residence rather than, to whether he is found to be residing at Wathoda or not....
I, therefore consider that it would he unfair to deny the appellant the right to exercise fascia vote from a place of his choice and, therefore, find that the order of the learned Electoral Registration Officer denying him this choice is unjust.
We are entirely unable to appreciate or accept this reasoning. When the evidence unquestioningly established that he was a resident of Warnd, and when the factum of residence is the test to be applied, there was no question of considering what otherwise "he chose to call his place of residence". The matter did not depend upon his wish to describe a place as his place of residence, but the question was of fact, at what place he had his ordinary place of residence. We also fail to understand how the learned Collector has called Wathoda as the place of Thakre''s choice. The question of exercising a choice could have arisen only if, as a matter of fact he was ordinarily resident at more than one place. When he was found to be ordinarily resident of Warud only,'' no question of exercising any choice could possibly arise. The only choice which he had exercised, as the documents on record show, was of describing Warud as his residence in his declaration, annexure 1, on 7th February 1966. Thereafter, he had again an opportunity of exercising his choice by appearing before the Electoral Registration Officer for asking that his name from Warud be deleted and the name at Wathoda be retained, but even at that stage he exercised no such choice. In the objection proceedings for the inquiry under rule 20, Thakre filed two replies on the same day. In the first one, he made an untrue statement that in the election petition, the Assistant Judge had held on facts that he was a bona fide, resident of Wathoda. We have already pointed out that the learned Assistant Judge held on facts that Thakre was not a resident of Wathoda but dismissed the petition only on the technical ground that the name as appearing in the voters'' list was conclusive and binding on him, in view of section 18 of the Zilla Parishads and Panchayat Samitis Act. Thakre then went on to say in the same paragraph that the petitioner was estopped from taking any such objection with regard to residence. In the latter part of his supplementary statement, he went on to state that he was a resident of both the places, Warud and Wathoda, but he did not say how that would enable him to get himself enrolled at Wathoda also, when he was admittedly enrolled at Warud, in view of the provisions of section 18 of the Representation of the People Act, 1900. He did not also allege that he was exclusively a resident of Wathoda at that time so as to enable him to justify the inclusion of his name at Wathoda. In the memorandum of appeal filed before the Collector, he had again sought to rely on the findings by the Assistant Judge on the assumed basis that they were in his favour with regard to residence but we have shown that they were against him.
We may mention that it was not possible to accept the contention on behalf of Thakre that the findings of the Election Tribunal with regard to residence estopped the petitioners from saying that he was not a resident of Wathoda. If any estoppel were to arise because of the findings of fact by the Election Tribunal and by the Electoral Registration Officer that Thakre was a resident of Wathoda, that would operate against Thakre. It would be seen that Thakre had never purported to make a choice to say that Wathoda alone was his place of residence, or that he had his residence at Wathoda for more than 180 days on or before the date when the Electoral Registration Officer passed his order. In view of these circumstances, the view of the learned Collector that "more credence must be given to what he calls his place of residence rather than to whether he is found to be residing at Wathoda or not" would clearly be in disregard of the provisions of the Representation of the People Act, 1950, according to which the question would be decided by the factum of residence and not by the wish of a person to call a place his residence when, it was not. Sitting in appeal, it was the duty of the Collector to interpret and apply the provisions of the Representation of the People Act and not to virtually amend those provisions, as he seems to have done. Even Mr. Mandlekar found it extremely difficult to support the reasoning of the Collector in the face of the provisions of the Representation of the People Act, 1950. We find that the Collector had completely lost sight of the material and relevant provisions and had passed the appellate order in derogation of those provisions. It was clearly an error apparent on the face of the record and the order was vitiated on that ground also.
It appears from annexure 11 that after his appeal was allowed by the Collector, Thakre applied to the Electoral Registration Officer with a prayer to delete his name from the voters'' list at Warud at serial No. 106. This application purported to be "as per order of Collector, Amravati". The Collector''s order does not appear to have given any such direction. Realising that u/s 18, no person was entitled to be enrolled for any constituency more than once the Collector seems to have pointed out to the counsel the necessity of having the name of Thakre deleted from Warud if his name at Wathoda were to be continued, and thereafter the counsel for Thakre seems to have assured the Collector to get Thakre''s name deleted from the list of voters for Warud, as was mentioned in the last sentence in paragraph 3 of the Collector''s order. It appears that this application was made by Thakre in pursuance of this assurance given by his counsel. The application was endorsed by a subordinate of the Electoral Registration Officer and the Electoral Registration Officer has only signed it below the word "Yes". We are told that the name of Thakre has been removed from the list of Warud. If his name has been so deleted as per the endorsement of the officer on the application, annexure 11 it would be open to Thakre to move the authorities concerned for restoring his name in the Warud list if that is otherwise legally permissible.
In the result, the writ petition is allowed with costs, the appellate order of the Collector dated 19-12-1966 is quashed and the order of the Electoral Registration Officer dated 22-10-1966 deleting the name of Thakre from the electoral roll for Wathoda village is restored. Rule made absolute.