Madras High Court
C. Lakshmi Narain vs The Chief Election Commissioner, ... on 12 June, 1996
Equivalent citations: AIR1997MAD125, AIR 1997 MADRAS 125, (1996) WRITLR 709
ORDER Jagadeesan, J.
1. The petitioner, a practicing advocate, appeared as party in person. The writ petition has been filed for the following reliefs :
"To issue a writ of mandamus or other appropriate writ or order or direction, directing the respondents herein to provide immediately sufficient number of voting booths to enable his family members, my wife Mrs. Rita Narain, son C. Sumanth Narain, daughter Suchitra Narain and myself C. Lak-shmit Narain residing at No. 11, Kandappa Achari Street, Purasawalkam, Madras -- 600 007 and thousands of citizens who have been deprived of their valuable right to vote due to irresponsible, faulty and motivated preparation of the voters' list, to vote for all the State Assemly and three parlimentary constituencies situate within the City of Madras based on the 1991 voters' list and such votes to be counted along with the votes polled already on 2-15-1996 and to pass such further or other orders that may be just and necessary."
2. The petitioner's case is that he has filed this writ petition by way of public interest litigation, since the respondents have failed to ensure the voting rights of his family members and thousands persons living in the City of Madars who have been polling in the earlier elections. Due to no fault of them, because of the arbitrary and inefficient way the voters' list was prepared by the respondents for the general election that took place on 2-5-19% for several constituencies and three parliamentary constituencies in the City of Madras, the names of thousands of voters are not found in the voters' list when they went to polling booth for voting on 2-5-1996. The apprehension is that the names of the voters had been deliberately left out with mala fide intention.
3. The petitioner is residing with his family at No. 11, Kandappa Achari Street, Purasawalkam, Madras -- 7 from 1963 onwards. His name and the names of his family members were enumerated in the voters in respect of earlier elections 1989 and 1993, But in the electoral role prepared in 1995, their names have been omitted. By virtue of the omission, the petitioner and his family members had lost their fundamental rights to vote to the candidate of their choice. The deprivation of the voting right during this election amounts to infringement of their fundamental right, as guaranteed under Article 19 of the Constitution of India. The petitioner has got a positive role to play in electing the Government which is likely to govern the State and Centre for another five years. The denial of voting right for thousands of persons in the City in the election held on 2-5-1996 is a fraud. In the affidavit, he also referred to the newspaper report with regard to the missing of several names in the voters' list. He came to know about the omission only when he went to the polling booth on 2-5-1996 at 7.15 a.m. Hence the writ petition has been filed.
4. The petitioner vehemently contended that he has got fundamental right to vote and by the omission of his name in the electoral role, he lost his fundamental right guaranteed in the Constitution of India. Further he contended that counting is to take place only on 8th and as such the respondents should be directed to make a press report, giving an opportunity to those persons whose names have been omitted to be included in the voters' list and they should be permitted to poll by notifying a polling booth in that area. Equally the authorities should be directed to make announcement by tom tom with regard to the right of voting in respect of those persons whose names have been omitted to be included in the voters' list; so that those persons whose names have been omitted in the electoral roll can exercise their franchise and till the polling is over, by this mode the counting can be postponed.
5. We have carefully considered the submission of the petitioner. With regard to the preparation of electoral role referring to all the persons in the Representation of the People Act as well as the registration of electoral rolls, the Supreme Court has referred to in its judgment reported in Lal Babu Hussain v. Electoral Registration Officer, AIR 1995 SC 1189 as followed (Paras 2 and 3):--
The Representation of the People Act, 1950 (hereinafter called 'the 1950 Act') inter alia, provides for the preparation of electoral rolls, qualification of voters etc. Part III thereof comprising Sections 14 to 25A provides for Electroral rolls for assembly Constituencies. Section 15 envisages an electoral roll for every Assembly Constituency. Section 16 prescribes the disqualifications for registration in an electoral roll. It says: a person shall he disqualified for registration in an electoral roll if he (a) is not a citizen of India; or (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. It further provides for striking off the name of any person who becomes disqualified after but if the disqualification is removed at any subsequent point of time, the proviso lays down that the name of such person shall forthwith be reinstated in that roll. Section 19 lays down the conditions of registration. It inter alia provides that every person who is not less than 18 years of age on the qualifying date and is oridinarily resident in a constituency shall be entitled to be registered in the electoral roll for that constituency. Section 20 gives the meaning to the expression "ordinarily resident." Then comes Sections 21 which provides for the preparation and revision of electoral rolls. It envisages that the electoral roll of each constituency shall be prepared in the prescribed manner and shall come into force immediately upon its final publication. It contemplates revision of the electoral roll before each general election to the House of the People or to the Legislative Assembly of a State and before each bye-election to fill a casual vacancy in a seat allotted to the constitutency. It further provides for the revisions of the electoral roll in any year in the prescribed manner if such revision has been directed by the Election Commission. The proviso to that sub-section lays down that if the electoral roll is not revised the validity or continued operation of the said electrial roll shall not thereby be affected. Sub-section (3) of Section 21 which begins with a non-obstante clause says that the Election Commission may at any time, for recorded reasons, direct a special revision of the electoral roll for any constituency or part of a constituency in such manner as he may think fit. Section 22 deals with the correction of entries in electoral rolls. According to that section if the Electoral Registration Officer for a constituency is satisfied after inquiry that any entry in the electoral roll of the constituency is erroneous or defective in any particular or it is necessary to be transposed to another place in the roll on account of the person concerned having changed his place of ordinary residence within the constituency or is required to be deleted because the person concerned is dead or has ceased to be ordinarily resident in the constituency or is other wise not entitled to be registered in that roll, the Electoral Registration Officer shall, subject to such general or special directions, if any, given by the Election Commission in that behalf, amend, transpose or delete the entry. The proviso to that section introduces the principle of natural justice, in that, it enjoins the Electoral Registration Officer to give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him. Section 23 provides for the inclusion of names in electoral rolls. It says that any person whose name is not included in the electoral roll of a constituency may apply to the Electoral Registration Officer for the inclusion of his name in that roll. On receipt of such an application, the Electoral Registration Officer is enjoined by sub-section (2) thereof to direct his name to be included therein on being satisfied that the applicant is entitled to be registered in the electoral roll. An appeal is provided against the decision of the Electoral Registration Officer under Section 22 or 23 to the Chief Electoral Officer. Lastly, Section 28 empowers the Central Government to make Rules. These are some of the provisions of the 1950 Act which have a bearing on the questions at issue.
Reference may now be made to the Registration of Electors Rules, 1960 (herein after called 'the 1960 Rules'), which came into force on January 1, 1961. Part II thereof concerns 'Electoral roils for Assembly Constituencies'. Rule'5 provides that the roll shall be divided into convenient parts. Rules 10 and 11 contemplate the publication of draft rolls in _the first place and inviting of objections, if any thereto. Rules 12 to 16 deal with the lodging of claims and objections to the draft rolls. Rule 17 provides that claims or objections not lodged within the time allowed in the specified form and manner shall be rejected. Rule 18 provides for acceptance of claims and objections without any inquiry if the registration officer is satisfied about the validity of any claim or objection. In all other cases, Rule 19 enjoins giving of notice of hearing, Rule 20 envisages a summary inquiry into the claims and objections in respect of which show cause notice under Rule 19 had been given, recording of evidence and then recording of decision thereon. Rule 21 provides for inclusion of names inadvertently omitted in the rolls. Rule 21A as amended with effect from 3rd September, 1987, lays down that if it appears at any time that owing to inadvertence or error or otherwise, the names of dead persons or persons who have ceased to be, or are not entitled to be registered in the rolls, have been included therein, the registration officer shall exhibit the names, etc., of such electors on the notice board and also publish them in the manner prescribed and after considering the objections, decide whether or not the names of all or any of them should be deleted from the roll. This decision must be taken only after the concerned persons has been accorded a reasonable opportunity to show cause against the proposed action. After all these requirement are over. Rule 22 contemplates the publication of the final list together with amendments. On such publication, the roll together with the list of amendments shall be the electoral roll of the consi-tutency. Rule 23 provides for an appeal from any decision of the registration officer taken on the claims or objections filed against the draft list. Rule 25 says that the role of every constituency shall be revised either intensively or summarily or partly intensively and partly summarily, as the Election Commissioner may direct. This, in brief, is the procedure laid down for the preparation of the electoral rolls. Since we have extracted the passages of the Supreme Court, it is unnecessary for us to once again elaborately deal with the provisions.
6. Section 21 of the Representation of the People Act, 1950 envisages the preparation of the electoral rolls of each constituency in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under the said Act. Hence once the electoral roll is prepared and finally published that come into force immediately. Section 22 of the Act provides for the corrections in the entries. This section empowers the Electoral Registration Officer for a constituency to correct the entries either on his own motion or on application made to him, if he is satisfied after such inquiry as he thinks fit that the entries in the electoral roll is erroneous or defective in any particular. Section 23 of the Act specifically provides for any person whose name is not included in the electoral roll of a constitutency to apply to the Electoral Registration Officer for the inclusion of his name in that roll. Sub-section (2) of Section 23 envisages that the Electoral Registration Officer shall direct the applicant's name to be included if the Electoral Registration Officer is satisfied that the applicant is entitled to be registered in the electoral rolls.
Section 24 of the said Act provides for a statutory appeal to the Chief Electoral Officers against any of the orders of the Electoral Registration Officer under Sections 22 or 23.
7. It is not the petitioner's case that the electoral rolls have not been prepared in respect of his constituency or the prepared electoral rolls were not published in accordance with law. When once the authorities have discharged their functions as per the provisions of the Act, then it is for the petitioner or the persons whose names had been left out in the electoral rolls of make necessary applications before the Electoral Registration Officer as per Section 23 of the Representation of People Act. Rule 12 of the Registration of Electors Rules, 1960 also provides time limit for making a claim or raising an objection and within the stipulated period the persons aggrieved in respect of the preparation of the electoral rolls have to make the representation.
8. In this case, neither the petitioner nor the thousands of persons whose name alleged to have been omitted in the electoral rolls have put forth their claim or objection in accordance with the statute.
9. As the statutory appeal has also been provided against the order of the Registration Officer, the petitioner ought to have made the representation before the Registration Officer and in case if the Registration Officer refused to grant the relief, then the petitioner ought to have prepared an appeal under Section 24 of the Representation of the People Act. When this has provided due machineries for the relief, the petitioner having failed to seek the statutory remedies, we are of the view that he cannot be given any relief under this Extraordinary Original Jurisdiction under Section 226 of the Constitution of India.
In fact it has been held in Pampakavi Rayappa Belagali v. B. D. Jatti, their Lordships of the Supreme Court said that 'the entire Scheme of the Act of 1950 (Representation of the People Act) and the amplitude of its provisions show that the entries made in an Electoral Roll of a constituency can only be challenged in accordance with the machinery provided by it and not in other manner or before any other forum unless the question of violation of the provisions of Constitution is involved.
10. The petitioner has alleged that the omission of the name and the omission of the names of thousand of others is the dereliction of duty on the part of the persons entrusted with the Registration. It is a matter for evidence, since by way of an affidavit this Court may not be in a position to decide this issue. Further the petitioner has alleged that the omission of the name in the electoral roll is a fraud and with mala fide intention. There is absolutely no material to show that the persons entrusted with the electoral registration work has got any personal animosity against the petitioner or the persons whose name have been left out in the electoral rolls or the authorities are, belong to any particular political party. In the absence of any material, those averments have to be rejected in toto. The two judgments referred to by the counsel for the petitioner reported in Lal Babuu Hussain v. Electoral Registration Officer, AIR 1995 SC 1189 and K. C. Mathew v. Election Commissioner of India, have no relevance to the facts of the present case.
11. In case of defective preparation of the electoral rolls, there is a duty cast upon the persons whose names have been omitted or whose rights have been affected to make representation to the Electoral Registration Officer as per Section 23 of the Representation of People Act. Having failed to discharge their duties, the petitioner at this belated stage cannot be permitted to plead that he had lost his fundamental right of voting. If really he is interested in safeguarding his fundamental right, he ought to have acted catiously immediately after the notification of the electoral roll, in accordance with the Rules. The electoral roll as on date of the commencement of election process is final as held in Baidyanath Panjira v. Sita Ram Mahto, in which this Court categorically held as follows (at p. 317 of AIR) :
"A fair reading of the various clauses in S. 27(2) will make it clear that the entries in an electoral roll of a constituency, as they stood on the last date for making the nominations for an election in that constituency should be considered as final for the purpose of that election."
12. With regard to the contention of the petitioner that the respondents may be directed to make a press report and tom tom, requesting the persons whose name has been left out in the electoral rolls to vote by naming the polling booths, we are of the opinion that it may not be workable one. The electoral rolls are prepared only to have a check with regard to the voters i.e., the persons whose name do not find a place in the electoral roll is not entitled to exercise their franchise. If a pandora box is opened authorising all those, whose name has been left out in the electoral roll, to exercise their franchise, then the election authorities cannot have a check to find out whether the persons who are exercising, their voting are the residents of that locality and whether they are entitled to vote or not. Further to decide the question of their right to vote, verification has to be made with regard to certain documents which are likely to be produced by the voters and it cannot be taken for granted that all the documents are genuine. Hence the relief sought for cannot be granted.
13. So far as the compensation is concerned, unless the petitioner establishes that the respondents are at fault, he is (not) entitled for compensation. As pointed out already, even assuming that the electoral roll is defective, Section 23 of the Representation of People Act provides a remedy for the petitioner to make an application to the registration authority to put forth his claim. Having failed to exercise his right, we are of the opinion that he may not be entitled for any compensation.
14. Hence we are of the opinion that there is absolutely no merit in the writ petition and accordingly the same is dismissed.
S. S. Subramani, J.
15. I have gone through the Order of my learned Brother, and I fully agree with the reasons given by him for reaching the conclusion. While considering the importance of the question involved, I feel it will be proper on my part to add the following, to what my learned Brother has said.
16. The relief that is sought for in the writ petition is to provide immediately sufficient number of voting booths to enable the petitioner and his family members and thousand of citizens who have been deprived of their valuable right to vote due to irresponsible, faulty and motivated preparation of the voters list, to vote for all the State Assembly and three Parliamentary Constituencies situate within the City of Madras based on the 1991 voters list and such votes to be counted along with the votes polled already on 2-5-1996.
17. Admittedly, petitioners has filed this writ petition as a public interest litigation on the ground that the petitioner, members of his family and thousands of votes were omitted to be included in the voters list, and they may be permitted to vote for the election for which poll was already completed on 2-5-1996.
18. Section 62 of the Representation of the People Act, 1951 is a bar for granting any such relief. Section 62(1) of the said Act says that 'No person who is not, and except as expressly provided by this Act, every person, who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency. So, only a person whose name is entered in the electoral roll of any constituency shall be entitled to vote. If the relief sought for is granted, it will mean that the petitioner and his family members must be permitted to vote though their names are not on the electoral rolls. Such a writ of mandamus cannot be issued. It is well-settled that the Court cannot issue such a writ or direction, especially when it is opposed to law.
19. If we take this writ petition as one for including the names of all the omitted persons in the electoral roll, and for permitting them to vote, then that will be construed as a special direction for them against law. Section 23(3) of the Representation of the People Act, 1950 says that 'No amendment, transposition or deletion of any entry shall be made under Section 22 and no direction for the inclusion of a name in the electoral roll of a con-stitutency shall be given under this section, after the last date for making nominations for an election in the constituency or in the parliamentary constituency within which that constitutency is comprised and before the completion of that election'. It is admitted that even the poll has taken place. If we consider the relief as one for inclusion of names of petitioner and his family members, such inclusion will be against the mandate of sub-section (3) of Section 23, and it will be illegal. The Court has no power to grant any such relief. In this connection, it will also be worthwhile to consider the decision (Lakshmi Charan Sen v. A.K. M. Hassan Ussaman). Pararaphs 17 to 19 (of SCC) : (Paras 16 to 18 of AIR) read thus :--
"The fundamental error from which the writ petition suffers is this : The fact that the revision of electoral rolls, either intensive or summary, is undertaken by the Election Commission does not have the effect of putting the electoral roll last published in cold storage. The revision of electoral rolls is a continuous process which has to go on, elections or no elections. For example, the revision of electoral rolls has to be undertaken under Section 21 of the Act of 1950, whether or not an election is impending. Sub-section (1) of Section 21 provides that the "electoral roll for each constitu'ency shall be prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under this Act". Sub-section (2) of Section 21 provides for the revision of the electoral roll prepared under sub-section (1). The proviso, which is important, says that if the electoral roll "is not revised as aforesaid", the validity or continued operation of the 'said' electoral roll shall not be affected. The controversy whether the proviso governs clause (b) of Section 21(2) only or whether, it applies to clause (a) of that section also is futile, though it may be interesting from the point of view of a textbook writer on the "Interpretation of Statutes". The crux of the matter is that if an electoral roll in not revised, its validity and continued operation remain un-affected, at-least in a class of cases. That exemplifies an important principle which applies in the case of electoral rolls.
Section 21(3) of the Act of 1950 confers upon the Election Commission the power to direct a special revision of the electoral roll. The proviso to that sub-section also says that until the completion of the special revision so directed, the electoral roll for the time being in force shall continue to be in force. That proves the point that election laws abhor a vacuum. Insofar as the electoral rolls are concerned, there is never a moment in the life of a political community when some electoral roll or the other is not in force.
Section 23(3) of the Act of 1950 also points in the same direction. Under that provision, no amendment, transposition or deletion of an entry can be made under Section 22 and no direction for the inclusion of a name in the electoral roll of a constituency can be given, after the last date for making nomination for an election in the particular constituency. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations. If that were not so, the easiest expedient which could be resorted to for the purpose of postponing an election to the Legislature would be to file complaints and objections, omnibus or therwise, which would take days and months to decide. It is not suggested that claims and objections filed in the prescribed form should not be decided promptly and in accordance with law. But, the important point which must be borne in mind is that whether or not a revision of an electoral roll is undertaken, and, if undertaken, whether or not it is completed, the electoral roll for the time being in force, must hold the field. Elections cannot be postponed for the reason that certain claims and objections have still remained to be disposed of. Then, claimants and objectors could even evade the acceptance of notices and thereby postpone indefinitely the decision thereon.
The holding of elections to the Legislatures, which is a constitutional mandate, cannot be made to depend upon the volition of interested parties."
20. In , (Pampakavi Rayappa Belagali v. B. D. Jatti, their Lordships of the Supreme Court said that 'the entire scheme of the Act of 1950 (Representation of the People Act) and the amplitude of its provisions show that the entries made in an Electoral Roll of a constituency can only be challenged in accordance with the machinery provided by it and not in any other manner or before any other forum unless the question of violation of the provisions of Constitution is involved'.
21. In this writ petition, no grounds have been made mentioned of about the violation of any constitutional provision. The only allegation is that the officers have not discharged their duty.
22. The right to be registered as a voter should be distinguished from the right to vote at an election. The Representation of the People Act, 1950, was enacted by Parliament in exercise of the powers conferred by. Art. 327, and that Act prescribes the manner in which a person entitled to be registered as a voter can get himself so registered. If a person chooses not to avail himself or herself of the procedure prescribed by the Act to get himself registered as a voter, then he loses the right to vote conferred by S. 62, Representation of the People Act, 1951. Where a new right is created by statute and a remedy is provided by statute, the remedy so provided, and no other remedy, shall be available. -- vide judgment (Polaki Kotesan v. S. M. Patnaik).
23. In (Nripendra Bahadur Singh v. Jai Ram Verma), the question that came for consideration was, whether persons whose names appeared in the electoral rights could be allowed to vote on the ground that their continuation in the rolls was wrongful. While considering the same, their Lordships held in paragraphs 15 to 21 thus:--
"In Baidyanath Panjira v. Sita Ram Mahto, this Court categorically held as follows (at P. 317 of AIR):--
"A fair reading of the various clauses in S. 27(2) will make it clear that the entries in an electoral roll of a constituency, as they stood on the last date for making the nominations for an election in that constituency should be considered as final for the purpose of that election."
"In Kabul Singh v. Kundan Singh, it was further held as follows (at p. 342):--
"The mandate of that provision is plain and unambiguous. It prohibits inclusion of any name in the electoral roll after the prescribed date whether the application for inclusion was made before or after that date."
In Pampakavi Rayappa Belagali v. B. D. Jatti, Court again held as follows (at p. 1351 of AIR) :--
"The entire scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an Electoral Roll of a constituency can only be challenged in accordance with the machinery provided by it and not in any other manner or before any other forum unless some question of violation of the provisions of the Constitution is involved."
In Hariprasad Mulshankar v. V. B. Raju, , Mathew, J., speaking for the Constitution Bench and after referring to several earlier decisions of this Court reached the conclusion as follows (at p. 2608 of AIR) :--
"Section 30 of that Act makes it clear that civil Courts have no power to adjudicate the question. In these circumstances we do not think that it would be incongruous to infer an implied ouster of the jurisdiction of that court trying an election petition to go into the question. That inference is strengthened by the fact that under Section 100(1)(d)(iv) of the 1951 Act the result of the election must have been materially affected by non-compliance with the provisions of the Constitution of that Act or of the rules, orders made under that Act, in order that High Court may declare an election to be void. Non-compliance with the provisions of Section 19 of the 1950 Act cannot furnish a ground for declaring an election void under that clause."
In the above context we may also refer to Section 62 of the Representation of the People Act 1951 (briefly the 1951 Act) which reads as follows:--
"62. (1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.
(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the Representation of the People Act, 1950 (43 of 1950)".
XX XX XX XX XX It is not disputed that the persons whose names were recorded in the electoral roll or and participated in the voting were not disqualified under Section 16 of the 1950 Act. That being the position it would have been wrong on the part of the Presiding Officer not to allow the voters whose names were recorded in the electoral roll of the constituency to participate in the voting, even though their names could have been earlier at the appropriate time legitimately excluded from the electoral roll. These voters are electors within the meaning of Section 2(1)(e) of the 1951 Act and were entitled to vote under Section 62 of the 1951 Act.
In a democracy and for that matter in an election perennial vigilance should be the watchword for all. If, therefore, notwithstanding the provisions of the law, appropriate action was not taken at the appropriate time, the provisions of the election law which have not to be construed strictly, must work with indifference to consequences, immediate or mediate. On the part of the officers also it will vitalise and invigorate a healthy democratic practice if, charged with the electoral duties, demanding high probity, they neither exhibit rank remissness nor accelerated alacrity apt always to breed suspicion of partisanship."
24. In paragraph 25 of the said judgment, their Lordships further said thus :--
"Thus in a catena of cases this Court has consistently taken the view that the finality of the electoral roll cannot be challenged in an election petition even if certain irregularities had taken place in the preparation of electoral roll or if subsequent disqualification had taken place and the electoral roll had on that score not been corrected before the last hour of making nominations; After the deadline the electoral roll of a constituency cannot be interfered with and no one can go behind the entries except for the purpose of considering disqualification under Section 16 of the 1950 Act."
25. There is one more hurdle in granting the relief. If the first relief is to be granted, that will amount to an interference with the electoral process which has already commenced. Even the poll is over on 2-5-1996, and what remains is only counting and declaration of results. Under Art. 329(b) of the Constitution, it has been provided that notwithstanding anything in this Constitution no election to either House of Parliament or to the either House of Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. The expression 'election' envisaged under Article 329(b) of the Constitution connotes the entire process commencing from the very inception and culminating a candidate being elected. Once the election process has begun, the powers under Article 226 of the Constitution of India cannot be invoked. Even if the allegations of irregularity in the electoral rolls are assumed to be true, this Court would not bejustified in interfering or interdicting the election process which has commenced much earlier even though there was irregularity in the preparation of electoral rolls.
26. In (The Election Commission of India v. Shivaji), their Lordships held thus (at p. 64 of AIR) :--
".....In view of the non-obstante clause contained in Art. 329 of the Constitution the power of the High Court to entertain a petition questioning an election on whatever grounds under Art. 226 of the Constitution is taken away. The word 'election' has by long usage in connection with the process of selection of proper representatives in democratic institutions acquired both a wide and narrow meaning. In the narrow sense it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling, or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected and it is in this wide sense that the word is used in Part XV of the Constitution in which Art. 329(b) occurs."
The aforesaid decision of the Supreme Court was followed by a Division Bench of the Patna High Court in (Rajendra Rai v. The Election Commission of India), when a similar question came for consideration.
27. I have already said that the right to vote and the right to get the name included in the electoral roils are only a statutory rights and not common law right. Before seeking for the issue of a writ of mandamus or any other writ, the person coming to Court has to show that he has got a legal right and that in view of the act or omission of the respondent, he could not exercise that legal right. The legal right claimed by the petitioner is that, being a citizen, he has got a right to vote. I cannot agree with the said submission for the reason that the right to vote pre-supposes that the names of the petitioner and his family members are included in the electoral roll. The petitioner will get the legal right to vote only if they are voters and their names are included in the rolls prepared. If that legal right is absent, the petitioner has no locus standi to maintain this writ petition.
28. Petitioner submitted that in the earlier electoral roll, his name and the names of his family members have been included, and when the rolls are revised, the previous roll should be the basis for the revision, and since that is not followed by the Authorities, their names are not seen in the electoral rolls. According to him, he need only show that he is a voter included in the previous electoral rolls and that he has no other duty, and, mistake, if any, committed should not affect his right to vote.
29. I cannot accept the said submission. A reading of the various Sections under the Representation of the People Act makes it clear that even the Statute admits that there is a possibility of mistakes, omissions and duplications. That is why the Statute provides for correction of those errors. A draft roll is published and after calling for objections and claims, the final roll is published. Separate forms are also provided under the Statute for submitting claims or objections. Separate procedure is also contemplated under the Statute for inclusion of names that are omitted to have been included. When the petitioner comes to Court on that basis of statutory right, his grievance can also be only after compliance of those statutory conditions. He cannot say that no duty is cast on him to get his name included in the electoral roll. Rights and duties under the Constitution are interlinked, and the petitioner is not right in submitting that he has a fundamental right, and at the same time refusing to discharge his duties. A legal right will come to the petitioner only when he discharges his statutory duties. For that reason also, the petition cannot be sustained.
30. In this connection, it is also worthwhile to note that even in cases where claims or objections have been filed and which have not been finally disposed of, the Supreme Court, in (supra), has held that the same cannot arrest the process of election to the Legislature -- vide paragraph 21 of the said judgment. In this case, the position of the petitioner is still worse. The petitioner or his family members have not even filed their claims of objections. But at the same time, they want this Court to interfere or interdict in the process of election. It is settled law that election has to be held on the basis of electoral rolls in force on the last date of making nominations. The petitioner or his family members having failed to get their names included in the electoral rolls, cannot now agitate that they are also entitled to vote in this Election. The reliefs prayed for, therefore, cannot be granted.
31. Petition dismissed