Kerala High Court
Sooppy Narikkatteri vs State Election Commission on 13 February, 2020
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 13TH DAY OF FEBRUARY 2020 / 24TH MAGHA, 1941
WA.No.238 OF 2020
AGAINST THE JUDGMENT DATED 03.02.2020 IN WP(C) NO.815/2020(B) OF HIGH COURT OF KERALA
APPELLANTS/PETITIONERS:
1 SOOPPY NARIKKATTERI, AGED 59 YEARS
S/O.KUNJABDULLA HAJI, THAYYIL HOUSE, CHELAKKADU P.O.,
KOZHIKKODE-673 506.
2 P. HASHIF, MILL HOUSE, PETTA,
FEROKE P.O., KOZHIKODE-673 631.
BY ADVS.
SRI.P.A.MOHAMMED SHAH
SRI.C.R.SYAMKUMAR
SRI.K.ARJUN VENUGOPAL
SHRI.MUHAMMED JANAISE V.
SHRI.ASWIN KUMAR M J
SHRI.MOHAMED MUSTHAFA A.K.
SMT.HELEN P.A.
SRI.SHAHIR SHOWKATH ALI
RESPONDENT/RESPONDENT:
STATE ELECTION COMMISSION,
REPRESENTED BY ITS SECRETARY,
OFFICE OF THE STATE ELECTION COMMISSION,
CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM,
THIRUVANANTHAPURAM-695 033.
BY SRI.MURALI PURUSHOTHAMAN, SC, K.S.E.COMM
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13.02.2020, ALONG WITH
WA.NO.249/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.Nos.238 & 249 of 2020 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 13TH DAY OF FEBRUARY 2020 / 24TH MAGHA, 1941
WA.No.249 OF 2020
AGAINST THE JUDGMENT 03-02-2020 IN WP(C) NO.1588/2020(W) OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
N.VENUGOPAL, AGED 70 YEARS
S/O. NEELAKANDA PILLA, SREELAKAM, PANDARACHIRA,
1ST CROSS ROAD, KADAVANTHRA SOUTH.
BY ADVS.
SRI.T.K.AJITHKUMAR (VALATH)
SRI.T.ASAFALI
SMT.T.MANASY
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE STATE ELECTION COMMISSION,
KERALA REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE
COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM-695033.
3 THE SECRETARY,
STATE ELECTION COMMISSION, KERALA CORPORATION OFFICE COMPLEX,
LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM-695033.
4 THE ELECTION COMMISSION FOF INDIA,
REPRESENTED BY ITS SECRETARY NIRVACHAN SADAN, ASOKA ROAD,
NEW DELHI-110001.
R2 TO R4 BY SRI.MURALI PURUSHOTHAMAN, SC, K.S.E.COMM
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13.02.2020, ALONG WITH
WA.NO.238/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.Nos.238 & 249 of 2020 3
JUDGMENT
Dated this the 13th day of February, 2020 S. Manikumar, CJ Instant writ appeals are filed against judgment 03.02.2020 in W.P.(C) Nos.815 and 1588 of 2020, by which the writ court dismissed the writ petitions holding that petitioners/appellants have not made out a case justifying interference of this Court by exercising the power of judicial review for quashing Exhibit-P1 notification issued by the State Election Commission and declined to issue a consequential direction to the State Election Commission, respondent herein, to undertake the task, as per the provisions of Sections 146(1) of the Panchayat Raj Act and 83(1) of the Municipality Act.
2. Short facts leading to the filing of the appeals are that, 1 st appellant in W.A. No.238 of 2020 is a voter in Ward-12 of Nadapuram Panchayat and President of Nadapuram Niyojakamandalam Muslim League Committee. He was also the President of Nadapuram Grama Panchayat and President of Kunnummal Block Panchayat. 2nd appellant in that appeal is the Standing Committee Chairman (Works) of Feroke Municipality and Vice President of Beypore Niyojakamandalam Muslim League Committee.
3. Appellant in W.A. No.249 of 2020 is a resident within the limits of the Corporation of Kochi. He is a voter in the voters list prepared by the State W.A.Nos.238 & 249 of 2020 4 Election Commission for 2015 election of Local Self Government Institutions.
He is also a voter in the voters list prepared by the Election Commission of India, New Delhi for 2019 General Election held to the Parliament.
4. According to the appellants, election to the local bodies in Kerala is to be conducted in the month of October-November, 2020. State Election Commission has decided to renew the voters' list/electoral roll, for the purpose of Local Body Election as well as General Body Election for 2020. Hence, the State Election Commission vide order dated 4.1.2020 (Exhibit-P1) issued a direction to the election officers and electoral officers to renew the electoral roll of all local bodies, except Mattannur Municipality, by adopting and publishing the voters list prepared for the year 2015 General Election of Local Self Government Institutions as the basis, and to adopt the voters list used for the above bye-elections and thus, to take steps to renew the voters list.
5. Appellants in W.A. No.238 of 2020 have contended that more than 90% of the voters, who are now required to be included in the new list, are already included in the electoral roll prepared for Lok Sabha Election, 2019. It is evident from Exhibit-P1 itself that for the 2015 election, ward-wise database was prepared on the basis of electoral roll of 2014 Lok Sabha Election. Being aggrieved, the appellants have filed representation before the State Election Commission requesting to withdraw Exhibit-P1 order and to re-issue directions W.A.Nos.238 & 249 of 2020 5 to the officers to prepare the electoral roll considering the electoral roll of 2019 election as the draft. They did not take any action.
6. Being aggrieved, appellants in W.A. No.238 of 2020 have filed W.P. (C) No.815 of 2020 seeking for the following reliefs:
i) To issue a writ of certiorari quashing Exhibit-P1 order passed by State Election Commission.
ii) To issue a writ of mandamus directing the Secretary, State Election Commission to prepare the electoral roll for the Local Body Election, 2020, keeping the electoral roll of Lok Sabha Election-2019 as a draft electoral roll, after preparing the database by field verification through house verification officers as carried out during the Local Body Election, 2015.
7. Appellant in W.A. No.249 of 2020 has filed W.P.(C) No.1588 of 2020 seeking for the following reliefs:
i) A writ of certiorari or any other appropriate writ, order to quash Exhibit-P1 order.
ii) To issue a writ of mandamus or appropriate order or direction to the Secretary, State Election Commission, Kerala, respondent No.3, to issue direction to renew the voters list 2020 by adopting the voters list 2019 prepared by the Election Commission of India, New Delhi as the basis.
iii) To direct the Election Commission of India, New Delhi, respondent No.4, to give necessary materials to the Secretary, State Election Commission, Kerala, respondent No.3 therein, regarding the voters list prepared in 2019.W.A.Nos.238 & 249 of 2020 6
iv) To direct the State Election Commission to consider Exhibit-
P2 representation and pass orders on it in accordance with law within a period of two weeks.
8. Before the writ court, the Secretary, State Election Commission, Thiruvananthapuram, has filed a counter affidavit contending as follows:
A) The State Election Commission is constituted under Articles 243K/243ZA of the Constitution of India for the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats/Municipalities. Articles 243K(4)/243ZA(2) of the Constitution of India provide that subject to the provisions of the Constitution, Legislature of the State may, by law, make provision with respect to all matters relating to, or in connection with elections to Panchayats/Municipalities. Chapter VI of the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994 deal with provisions relating to preparation of electoral rolls. Rules are framed under the said Statutes, namely, the Kerala Panchayat Raj (Registration of Electors) Rules, 1994 and the Kerala Municipalities (Registration of Electors) Rules, 1994.
B) The General Elections to the Local Self Government Institutions in Kerala (except Mattannur Municipality) were held on 02-11-
2015 and 05-11-2015. Articles 243E and 243U of the Constitution of India, Section 149(1) of the Kerala Panchayat Raj Act, and Section 7 of the Kerala Municipality Act, 1994 provide that the duration of a Panchayat/ Municipality shall be five years from the date appointed for its first meeting and no longer. After the General Election to Local Self Government W.A.Nos.238 & 249 of 2020 7 Institutions in Kerala held on 02-11-2015 and 05-11-2015 the first meeting of the Panchayats /Municipalities (except Mattannur Municipality) were convened on 12-11-2015 and, therefore, the duration of the present Local Self Government Institutions in Kerala will be over by 11-11-2020 and the General Election to constitute Panchayats and Municipalities will have to be held before 11-11-2020 so that the new members shall be in office on 11-11-2020.
C) Therefore, as part of the election preparedness, the State Election Commission has issued instructions to the Electoral Registration Officers for the preparation and revision of electoral rolls in the State. Exhibit P1 is one such instruction issued by the State Election Commission to all the District Election Officers, the Electoral Registration Officers and and other election related officers in the State. Exhibit P1 produced by the petitioner in the Writ Petitions is not the complete document as the appendixes to the said documents are not produced. Accordingly, the State Election Commission has published a draft electoral roll for every constituency of Local Self Government Institutions in Kerala except Mattannur Municipality on 20 th of January, 2020. The draft electoral roll published is based on the electoral roll used by the State Election Commission for the bye- elections, where bye-elections were held after the last General Elections in 2015, and in other wards, it is based on 2015 electoral roll.
D) The electoral roll with which the State Election Commission went to poll in 2015 is the basis electoral roll which is published as the draft electoral roll and claims and objections are invited W.A.Nos.238 & 249 of 2020 8 to the said draft electoral roll. The draft voters list is available for inspection at all Local Self Government Institutions. The list is also available in the Commissioners website. All recognized political parties and political parties having representation in the State Legislative Assembly will get free copy of the Electoral Roll. Other political parties and individuals will get the list from the concerned Local Self Government Institutions on payment of fixed fees.
E) All who have attained the age of 18 years on 1 st of January, 2020 and satisfying the conditions for registration in the electoral roll as per Section 20 of the Kerala Panchayat Raj Act, 1994 and Section 76 of the Kerala Municipality Act, 1994 can be enrolled in the voters list. The last date for submitting claims/application for inclusion of names and objections to the draft electoral roll is 14th of February, 2020. Applications for inclusion of names, correction of entries and transposition of names in the electoral roll can be submitted online. After considering the claims and objections as per the procedure prescribed by Rules, the Electoral Registration Officers will publish the final electoral roll on 28 th of February, 2020. After the delimitation of constituencies, if any, the electoral roll to be published on 28th of February would be published again after segregating it on the basis of the newly formed wards and claims and objections would be invited and the list would be finalised.
F) The said electoral roll would be further revised before the General Election in terms of Section 22(2)(i) of the Kerala Panchayat Raj Act, 1994 and Section 78(2)(i) of the Kerala Municipality Act, 1994. The inclusion of names in the electoral W.A.Nos.238 & 249 of 2020 9 roll is a continuous process. Only ban period for inclusion of names in the electoral roll is from the last date of making nomination for election till the date of return of candidate. Except for this short period provided under Section 24(3) of the Kerala Panchayat Raj Act, 1994 and Section 80(3) of the Kerala Municipality Act, 1994, a person can get his/her name included in the electoral roll.
G) The State Election Commission felt it inevitable to create its own database of photo affixed electoral roll for Local Self Government Institution elections. In 2014, the State Election Commission has decided to adopt the electoral roll of the Assembly Constituencies, with which the Election Commission of India went to poll for the 2014 parliamentary elections and created a database of its own by segregating it in accordance with the constituencies of Local Self Government Institutions as the electoral roll for Assembly Constituencies are prepared by the Election Commission of India part-wise, each part covering a polling area which is-different from the polling area of Local Self Government Institutions, which are Ward wise. Thus, on adopting the electoral roll of the Assembly Constituencies, it was adapted to Local Self Government Institution Constituencies after a massive exercise, including house-to-house verification and with the technical assistance of National Informatics Centre. This was published as drat electoral roll for 2015 General Elections to Local Self Government Institutions in Kreala and claims and objections on the same were invited and considered, and final electoral roll was published. The State Election Commission thus developed its own database of electoral roll W.A.Nos.238 & 249 of 2020 10 with photographs of voters and went to poll in 2015.
H) The Commission further contended that in 2017 itself, they had taken the decision to revise the existing electoral rolls of the Local Self Government Institutions and to use the same for the bye-elections and for the general election in 2020, but no such revision of electoral rolls could be carried out and it is only now as per Exhibit-P1 that the State Election Commission is proceeding with revision of electoral rolls of all Local Self Government Institutions.
I) The provisions in the Statutes show that it is not mandatory for the State Election Commission to adopt-the electoral roll of the Assembly constituencies for the preparation or revision of the electoral roll for the elections to Local Self Government Institutions. Further, it was contended that the electoral roll prepared by the State Election Commission is in respect of each 'ward' in a constituency. However, the electoral roll prepared by the Election Commission of India is in respect of each 'polling booth' in an Assembly constituency. Therefore, the electoral roll of the Assembly Constituencies cannot as such be adopted to Local Body Constituencies. Since portions of several wards of Local Self Government Institutions may be included in each polling booth, during 2015, the State Election Commission had adopted 2014 electoral roll of Assembly Constituencies after verifying ward number and house number through field verification officers and such process was highly time consuming and expensive. Hence, if the State Election Commission was to again adopt 2019 electoral roll of Assembly Constituencies, W.A.Nos.238 & 249 of 2020 11 verification would have to be conducted to verify and update ward number and house numbers, which would make the electoral registration process highly cumbersome and expensive. Elections are to be held to constitute Panchayats and Municipalities before 11.11.2020. Elections are to be held in accordance with a time bound programme contemplated under the Constitution, the Kerala Panchayat Raj Act and the Kerala Municipality Act. Besides, from 2015 onwards, the bye-elections in the various constituencies of Local Self Government Bodies are being conducted, on the basis of final electoral roll prepared by the State Election Commission for the conduct of 2015 General Election to Local Self Government Institutions after updating the same and till date, bye elections have been conducted by the State Election Commission in more than 800 wards using the final electoral roll for the conduct of 2015 General Election to Local Self Government Institutions. Therefore, as evident from the above, the State Election Commission has in its wisdom taken a conscious decision to use the electoral rolls of 2015 elections as the basis electoral roll for the 2020 General Elections to Local Self Government Institutions.
J) Apart from the above contentions, the State Election Commission has referred to Section 146(1) of the Kerala Panchayat Raj Act, 1994 and Section 83(1) of the Municipality Act, 1994. The respondent has also relied on the decision of the Hon'ble Supreme Court in Anugrah Narain Singh v. State of UP, reported in [(1996) 6 SCC 303] to bolder their contentions.
W.A.Nos.238 & 249 of 2020 129. After hearing the rival contentions and going through the relevant statutory provisions, vide judgment dated 03.02.2020, writ court held thus:
"11. On going through the aforementioned provisions, it is the prerogative of the State Election Commission to prepare the electoral roll of Panchayats and Municipalities by adopting the existing electoral roll of the Legislative Constituent Assemblies. Annexures 1 and 2 of the notification attached to the counter affidavit expressed the apprehension of not taking into consideration in the electoral rolls the qualifying date of the persons who have attained the age of 18 years as on 1.1.2020. For the reason best known, petitioner intentionally withheld Annexures 1 and 2. The guidelines issued under Annexures 1 and 2 are not emphatically denied in the reply affidavit filed during the course of hearing.
12. The guidelines for Electoral Registration Officers on the procedure to be pursued on online application is also self- explanatory. The website www.lsgd.election.kerala.gov.in is the platform for submission of online application. The aforementioned annexures also justify the provisions of Section 22 (1) of the Kerala Panchayat Raj Act and Section 78 of the Municipality Act.
13. In such circumstances, I do not think the petitioners have made out any case justifying interference of this Court by exercising the power of judicial review for quashing the notification by a consequential direction to the State Election Commission to undertake the task as per the provisions of Section 146 (1) of the Panchayat Raj Act and 83 (1) of the Municipality Act. The writ petitions stand dismissed."W.A.Nos.238 & 249 of 2020 13
10. Being aggrieved, instant writ appeals are filed on the following grounds:
(a) Writ court has not considered the existing laws with respect of the revision of electoral roll of the general election of Local Self Government institutions on merits, the claim of the petitioner and came to erroneous findings.
(b) Writ court ought to have found that it is evident from the Exhibit P1 order dated 4-1-2020 that in the 2015 General Election to the Local Self Government Institutions, the renewal of the voters list was made by adopting the voters list used for the last Parliamentary Elections as the basis and no reason is stated in the impugned order to deviate from the above tested precedence and easiest process.
(c) Writ court ought to have found that the method adopted by the State Election Commission as per Exhibit P1 order is against the provisions provided for the renewal of the electoral roll. As per section 16(1) of the Kerala Panchayat Raj Act and Section 73 of the Kerala Municipality Act, the electoral rolls shall be prepared in accordance with the provisions of the Acts. Section 22(2)(a)(i) of the Kerala Panchayat Raj Act and Section 78(2)(a)(i) of the Kerala Municipality Act, the electoral rolls shall be revised before general elections. As far as Panchayats are concerned, Rule 24(2) of the Kerala Panchayat Raj (Registration of Electors) Rules 1994, deals with revision of electoral roll. As per the W.A.Nos.238 & 249 of 2020 14 above rule where the electoral roll is to be revised intensively, it shall be prepared afresh and Rules 3 to 22 shall apply to such revision as they apply in relation to the first preparation of an electoral roll.
(d) Writ court ought to have found that the Section 146(1) of the Keraia Panchayat Raj Act, 1994 and Section 83(1) of the Kerala Municipality Act 1994 are the only provisions enabling the State Election Commission to adopt the existing Assembly level voters list to prepare the voters list without conducting the enumeration.
(e) Writ court ought to have found that if the State Election Commission prefers not to rely the provisions in section 146(1) of the Kerala Panchayat Raj Act and to adopt the electoral roll of the Assembly constituencies for the preparation of revision of electoral roll for Local Self Government Institutions, then the only way left is to act under the provisions of the Rule 24 of the Kerala Panchayat Raj( Registration of Electors) Rules 1994, and so the electoral roll shall be prepared afresh in abeyance of Rules 3 to 22 by conducting enumeration by serving letters of request in Form No.2 to the occupants of dwelling houses.
(f) Writ court ought to have found that the State Election Commission has no authority under any of the law to adopt the electoral roll prepared for the general election in the local bodies as the draft electoral roll. The adoption of voters list 2015 as the basis for renewal of the voters list 2010 would cause much hardship and loss to the petitioners and also the new voters whose names were W.A.Nos.238 & 249 of 2020 15 included in the renewed voters list for the year 2019 of the Parliamentary Election.
(g) Writ court erred in giving undue importance to the fact that the annexures to Exhibit P1 order were not produced by the appellants along with the Writ Petition. The said annexures that were produced by the respondent along with its counter affidavit merely prescribe guidelines for revising the electoral roll using the 2015 roll as base and also fix a time frame for doing the same. The said annexures in no way address the grievances raised by the Appellants against the decision of the Respondent to use the electoral roll of 2015 as a base, instead of the electoral roll of 2019.
(h) Writ court erred in proceeding on the basis that the prescription of the date of 1.1.2020 as the date on which a person should have turned 18 years to be included in the electoral roll, as done through the annexures to Exhibit P1, will in some way justify using the electoral roll of 2015 instead of the electoral roll of 2019. Writ failed to appreciate that such a prescription could have been made even if the electoral roll of 2019 is used a base. It has never been the case of the appellants that the electoral roll of 2019 does not require any updation. The appellants had only contented that it is more convenient to the public and rational to use the electoral roll of 2019 as a base.
(i) Writ court failed to appreciate that according to the State Election Commission, though in the year 2017 it decided to W.A.Nos.238 & 249 of 2020 16 revise the electoral rolls prepared in the year 2014, the same was not done till they undertook the present exercise. The State Election Commission has undertaken the present exercise putting a large of people in difficulty, only on account of its failure to revise the electoral rolls earlier.
(j) According to the appellants, Section 83 of the Kerala Municipality Act, 1994 specifically provides that for the purpose of election under the Act the State Election Commission may prepare the electoral roll by adopting the existing electoral rolls of the Legislative Assembly Constituency without conducting an enumeration. It is also specified that all voters included in the electoral rolls of the Legislative Assembly Constituency relating to it, shall be included in the electoral roll of the Local Body concerned. The above provision is incorporated addressing the difficulties causing to the electors who are required to undergo the process of the inclusion in the electoral roll twice. Therefore, the Election Commission is duty bound to re-issue the order directing the election officers and the electoral officers to prepare the electoral roll considering the electoral roll of the Lok Sabha Election as the draft roll.
(k) It is specifically stated in Exhibit-P1 that the electoral roll for the Local Body Election 2015 was prepared on the basis of the electoral roll prepared for the Lok Sabha Election 2014 and not on the basis of electoral roll of Local Body Election 2010. The above process was adopted solely for the purpose of the convenience of electorate and to make W.A.Nos.238 & 249 of 2020 17 sure that no elector is required to undergo the process of inclusion in the electoral roll twice. State Election Commission, who was aware of the above fact, has decided to adopt the electoral roll of Local Body Election 2015 as the base for the preparation of electoral roll of Local Body Election 2015. According to the appellants, no statute insisted to keep the electoral roll of the previous Local Body Election as the draft electoral roll for the preparation of the electoral roll for the current election. The draft electoral roll shall be fixed, considering the convenience of the electorate and not otherwise.
(l) Writ Court failed to consider the fact that renewal of the voters list by adopting the voters list for the 2015 General Election to the Local Self Government institutions is irrational and without logic and causing much hardship to the voters and to those employees and officers engaged in the process of renewal of the voters list. Much human efforts and money will be wasted if the voters list is renewed based on the order dated 4-1-2020.
(m) Writ court went wrong in not considering the fact that if the prerogative of the State election Commission to prepare the electoral roll of Panchayats and Municipalities by adopting the existing electoral roll of the Legislative constituent assemblies is not availed, the State Election Commission has the only way to start the process as contemplated in Rule 24 (2) of the Kerala Panchayat (Registration of Electors) Rules, 1994 and Kerala Municipality (Registration of Electors) Rules and the electoral roll shall be prepared W.A.Nos.238 & 249 of 2020 18 afresh in abeyance of Rules 3 to 22 by conducting enumeration by serving letters of request in Form No.2 to the occupants of dwelling houses.
(n) As per the data available with the Chief Electoral officer, Kerala, in the year 2015 there were 2,47,08,392 voters and there was no third gender in the above list. But, as per the data available for the year 2019, the total voters are increased to 2,54,08,711 and in the year 2020, the total voters are 2,62,01248 and the third genders are 161. So, if the 2019 voters roll available with the 4 th respondent is not used, it will cause hardship to more than 7,00,000/- who have once again queue up to add their names in the voters list. The exercise now adopted by the State Election Commissioner as per Exhibit-P1 would keep away a large number of voters from the electoral roll and thus would affect the free and fair election.
11. Reiterating the grounds raised and inviting our attention to the number of voters registered between 2015 and 2019, Mr. Asil Ali, learned counsel for the appellants in W.A. No.249/2020, submitted that about 700319, who voted in the recent general elections held in 2019, have to register themselves once again for exercising their franchise, in the elections for Local Self Government Institutions. They are poor and belong to marginalized section of the society, and they have to register once again. According to the learned counsel, when the State Election Commission has the details of the W.A.Nos.238 & 249 of 2020 19 voters, ward wise, in 2019 general elections voters' list, there is absolutely no reason as to why 2015 voters' list should be taken as the basis for renewal.
12. Having regard to the number of online applications received and the short time fixed for verification, hearing of objections, finalisation of the voters' list, he submitted that it is not possible to complete the exercise and on the other hand, it would be desirable to take 2019 voters' list prepared for the general elections as the basis for renewal, for the local body elections scheduled in November, 2020.
13. Supporting the above submissions, Mr. P.A.Mohammed Shah, learned counsel for the appellants in W.A. No.238/2020, invited our attention to the various provisions of the Panchayat Rules regarding verification, hearing of objections, orders passed, appeals arising therefrom etc.
14. Inviting our attention to the various provisions in the Kerala Panchayat Raj Act, 1994, as to who is an elector, process involved in the preparation, revision, finalisation of the electoral list for a ward, which is a constituency, Panchayat etc., Mr. Murali Purushothaman, learned standing counsel for the State Election Commission, submitted that to exercise his right to vote, a person has to register himself and he has to apply to the Electoral W.A.Nos.238 & 249 of 2020 20 Registration Officer, for inclusion. Our attention was also invited to Section 146 of the Kerala Panchayat Raj Act, 1994 by the learned standing counsel, who submitted that it is not mandatory for the State Election Commission to adopt the 2019 General Elections voters' list. He further submitted that while enumeration of votes for the Local Self Government Institution, the list is prepared ward-wise. For conducting elections for Local Self Government Institutions, polling areas and polling booths may vary. State Election Commission has decided to have its own database for Local Self Government Institutions elections. Verification of online applications numbering 820020, 4262 online corrections and 24247 online transpositions is being done simultaneously and the same would be done as scheduled. Posed with a question as to whether ward-wise data, in respect of the electoral rolls for the Parliamentary general elections, is available with the State Election Commission, learned standing counsel submitted that the data can be obtained from the Election Commission of India and in this context, he referred to the regulations. He prayed to sustain the judgment impugned.
15. Heard learned counsel for the parties and perused the materials available on record.
16. Exhibit-P1 order dated 4.1.2020 in W.A. No.238 of 2020 is extracted hereunder:
W.A.Nos.238 & 249 of 2020 21"State Election Commission Secretary's Order of Action (Present: S. Santosh) Subject:- Kerala State Election Commission-2020 General Election of the Local Self Government Institutions - Renew Voters List-order Reference:- 1) Order No.337/20;44/S.E.C. of the Kerala State Election Commission dated 03/07/2014
2) Decision taken during the Commission meeting on 07.01.2017 No.B1/30319/S.E.C 04.01.2020 Order
1. The State Election Commission has decided to prepare a database of the Voter's list for the General and by- election to the Local Self Government Institutions according to the Reference l Order of the Commission. During the 2014 Parliamentary Election the Central Election Commission had taken the per-booth voter's list for field verification by the House Verification Officers and then accordingly prepared a database on the basis of wards to the Local Self Government Departments. This database which was prepared accordingly was made the basis for the lists and published, later this was used for the General elections in 2015. After the 2015 General elections, till date this list was used for all by-elections.
2. The General election to the Local Self Government Institutions except the Municipality of Kannur District are to be held during October-
November 2020. The State Election Commission intends to renew the voter's list in the 15962 wards of the 941 Gramapanchayth, 2076 wards of the 152 block panchayath, 331 wards of the l4 districts, 3086 wards of the 86 municipalities and 414 wards of the 6 Municipal Corporations before the general election.
3. According to Reference 2 meeting it was decided to publish the voter's list used in the 2015 general elections or the following by-elections W.A.Nos.238 & 249 of 2020 22 as the basis for renewal before the 2020 general elections. It was also decided that in case if there is any division in the wards of the Local Self Government Institutions, then once it is completed the voter's list must be prepared according to the new wards.
4. Therefore, excluding the Mattannur Municipality for the 2020 general election to all other Local Self Government Institutions of the State shall publish the following voter's list as basis for renewal of the list according to the conditions mentioned in Reference l and 2.
(A) list used for by-elections to the Wards conducted after 2015. (B) list used for by-elections to the Wards in 2015.
S.Santosh Secretary"
17. Exhibit-P1 dated 4.1.2020 in W.A. No.249 of 2020 is extracted hereunder:
"Emblem of the State Election Commission (Present: S. Santosh) Subject:- Kerala State Election Commission-General Election to the Local Self Government Institutions - orders issued to renew the voters list Reference:- 1) Order dated 3-7-2014 number 337/2014/S.E.C
2) Decision of the meeting held on 7-1-2017 in State Election Commission Office No.B1/301330/2019/S.E.C 04.01.2020 Order
1. The State Election Commission by reference No.1 order has decided to prepare a data base of voters list to be used for the General Elections and bye elections of the Local Self Government Institutions in Kerala. As per the above decision, the voters list prepared by the Central Election Commission on assembly level booth-wise was verified in field by the verification officers and thus prepared a ward wise database of the local government institutions. The above prepared database was adopted as W.A.Nos.238 & 249 of 2020 23 the basis for the renewal of the voters list and was renewed without any defects and used for the general election conducted in the year 2015. The above voters list was adopted as the, basis for all the bye elections conducted thereafter.
2. The General election to be conducted in all the Local Self Government Institutions during October- November 2020, except the Mattannoor Municipality in Kannur. Before conducting the above general election to the 15962 wards in the 941 Grama Panchayats, 2076 wards in 152 Block Panchayats, 331 wards in the 14 District Panchayats, 3086 wards in 86 Municipalities and 414 wards in the 6 Municipal Corporations, the Commission intend to renew its voters list.
3. As per the reference No.2 decision, it is decided to adopt the voters list for the 2015 general election and the voters list of the bye elections as the basis for the renewal of the voters list for the general election 2020. It is also decided to renew the above prepared voters list and to publish it as and when new wards are formed as per the ward bifurcation in local self government institutions.
4. In the above circumstances, in all the local self government institutions except the Mattannoor Municipality, direction given to all the concerned officers to renew the voters list by adopting the 2015 voters list as the basis and in the wards in which the bye election was conducted to use the voters list prepared for the bye election as the basis.
S.Santosh Secretary"
18. Though Mr. Murali Purushothaman, learned standing counsel for the State Election Commission, contended that there is variance in the translation of Exhibit-P1, he fairly submitted that Election Commission has only intended to take 'A' or 'B' in Exhibit-P1, extracted above, as the basis for W.A.Nos.238 & 249 of 2020 24 renewal of the voters' list and not adoption, as stated in the translation version of Exhibit-P1 submitted by the appellants.
19. Sections 2(xv) and 2(xvi) of the Kerala Panchayat Raj Act, 1994 which define 'elector' and 'electoral officer' are extracted hereunder:
"2(xv): 'elector' in relation to a constituency (by whatever name called) means a person whose name is entered in the electoral roll of that constituency, for the time being in force, and who is not subject to any of the disqualifications mentioned in Section 17;
"2(xvi):- 'Electoral right' means the right of a person to stand or not to stand as or to withdraw or not to withdraw from being, a candidate or to vote at an election;"
20. Sections 14, 15, 16, 22, 23, 24, 86 and 146 of the Kerala Panchayat Raj Act, are extracted hereunder:
"14. Electoral Registration Officer.-(1) The electoral rolls for all the constituencies comprised in a Village Panchayat shall be prepared and revised, in such manner as may be prescribed, by an electoral registration officer who shall be such Officer of the Government or of a local authority as the State Election Commission may, in consultation with the Government, designate or nominate in this behalf."
(2) An electoral registration officer may, subject to such restrictions as may be prescribed, employ competent teachers of schools including aided schools or Government employees or employees of local authorities for the preparation and revision of the electoral rolls for the W.A.Nos.238 & 249 of 2020 25 constituencies."
"15. Assistant Electoral Registration Officer.- (1) The State Election Commission may designate one or more persons as assistant electoral registration officers to assist any electoral registration officer in the performance of his functions;
Provided that every such persons shall be an officer of the Government or of a Panchayat.
(2) Every assistant electoral registration officer shall, subject to the control of the electoral registration officer, be competent to perform all or any of the functions of the electoral registration officer."
"16. Electoral roll for every constituency.- (1) For every constituency in a Village Panchayat there shall be prepared an electoral roll in accordance with the provisions of this Act.
(2) The draft electoral roll shall be published in the respective Panchayat office, the village office and at the headquarters of the block and the taluk office, for facilitating the voters to verify the same and the final list shall be published after taking decisions on the objections and the applications.
(3) The electoral rolls for the constituencies of Block Panchayats and District Panchayats shall consist of the electoral rolls for all the constituencies of the Village Panchayat comprised within the constituencies of the Block Panchayat or, as the case may be, of the District Panchayat and it shall not be necessary to prepare or revise separate electoral rolls for such constituencies."W.A.Nos.238 & 249 of 2020 26
"22. Preparation and revision of electoral rolls.-
(1) The electoral roll for each constituency in a Village Panchayat 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.
(2) The said electoral roll -
(a) shall, unless otherwise directed by the State Election Commission for reasons to be recorded in writing, be revised in the prescribed manner by reference to the qualifying date -
(i) before each general election to a Panchayat at any level; and
(ii) before each by-election to fill a casual vacancy in a seat allotted to the constituency.
(b) shall be revised in any year in the prescribed manner by reference to the qualifying date if such revision has been directed by the State Election Commission:
Provided that if the electoral roll is not revised as aforesaid, the validity or continued operation of the said electoral roll shall not thereby be affected.
(3) Notwithstanding anything contained in sub-section (2) the State Election Commission may at any time, for reasons to be recorded, direct a special revision of the electoral roll for any constituency or part of a constituency in such manner as it may think fit:
Provided that subject to the other provisions of this Act, the electoral roll for the constituency, as in force at the time of the issue of any such direction, shall continue to be in force until the completion of the special revision so directed."W.A.Nos.238 & 249 of 2020 27
"23. Correction of entries in electoral rolls. - If the electoral registration officer for a constituency, on application made to him or on his own motion, is satisfied, after such inquiry as he thinks fit, that any entry in the electoral roll of the constituency, of a Panchayat, -
(a) is erroneous of defective in any particular; or
(b) should be transposed to another place in the roll on the ground that the person concerned has changed his place of ordinary residence within the constituency; or
(c) should be deleted on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise 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 State Election Commission in this behalf, amend, transpose or delete the entry:
Provided that before taking any action in any ground under clause (a) or clause (b) or any action under clause (c) on the ground that the person concerned has ceased to the ordinarily resident in the constituency or that he is otherwise not entitled to be registered in the electoral roll of that constituency, the electoral registration officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him."
"24. Inclusion of names in electoral rolls. - (1) 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.
(2) The electoral registration officer shall, if satisfied that the applicant is entitled to be registered in the electoral roll of that W.A.Nos.238 & 249 of 2020 28 constituency, direct in writing that his name be included therein:
Provided that if the applicant is registered in the electoral roll of any other constituency, the electoral registration officer shall inform the electoral registration officer of that other constituency and that officer shall, on receipt of the information, strike off the applicant's name from that roll:
(3) No amendment, transposition or decision of any entry shall be made under Section 23 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this section after the last date for making nominations for an election in that constituency and before the completion of that election."
"86. Lodging of accounts with the officer authorised by the State Election Commission.- Every contesting candidate at an election shall, within thirty days from the date of election of the returned candidate lodge with the officer authorised by the State Election Commission an account of his election expenses along with the connected records which shall be a true copy of the account kept by him or by his election agent under Section 85. The said officer shall, as soon may be, immediately after the expiry of the said period of 30 days make available to the officer appointed by the Commission, the accounts of election expenses received by him along with a list of candidates who did not lodge the accounts of election expenses prescribed by the Commission."
"146. Special provision for adoption of Electoral roll of the Assembly Constituency. - (1) Notwithstanding anything contained in this Act, the State Election Commission may, if it W.A.Nos.238 & 249 of 2020 29 deem necessary, prepare the electoral rolls of panchayats without conducting an enumeration by adopting the electoral rolls of the Assembly Constituencies as in force for the purpose of elections under this Act.
(2) The Electoral roll of Assembly Constituency as adopted under sub-section (1) shall be divided into separate parts for each constituency of the panchayats and all electors included in the electoral roll for the Assembly Constituency relating thereto shall be incorporated in the electoral roll of the Constituencies of the panchayat concerned.
Explanation. - In this section 'Assembly Constituency' means a constituency for the purpose of election to the State Legislative Assembly.
(3) In preparing the electoral rolls under sub-section (1) the State Election Commission shall mutatis mutandis follow the procedure laid down for the preparation of electoral rolls under this Act and the rules made there under."
21. Rules 2(e) of the Kerala Panchayat (Registration of Electors) Rules, 1994 defines 'Roll' as under:
"2(e) "Roll" means the electoral roll for a constituency."
22. Rules 3, 4, 5, 5A, 6, 6A, 6B, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 18, 18A, 19 21, 22, 23, 24, 25, 26 of the Kerala Panchayat (Registration of Electors) Rules, 1994, are extracted hereunder:
"3. Form and language of roll.- The roll for each constituency shall be prepared in Form No.1 either in Malayalam or in the regional language of the locality or in such Form and W.A.Nos.238 & 249 of 2020 30 such manner as the Election Commission may direct.
4. Preparation of roll in parts.-- The roll for each constituency may be divided into convenient parts which shall be numbered consecutively.
5. Order of names.--
(1) The names of electors in the roll or in each part of the roll, as the case may be, shall be arranged according to house number, (2) The names of electors in each part of the roll shall be numbered, so for as practicable, consecutively with a separate series of numbers beginning with the number one.
5A. Inclusion of names of Non Resident Indian Elector in the roll.- The name of every Non Resident Indian Elector who is entitled to be included in the roll as per Section 21-
A of the Act shall be included in the roll of the locality in which his place of residence in Kerala as mentioned in his passport.
6. Information to be supplied by occupants of dwelling houses and appointment of enumerators.--(1) The registration officer may, for the purpose of preparing the roll, serve letters of requests in Form 2 to the occupants of dwelling houses in the constituency or any part thereof through his assistant who is authorised for the purpose and every person receiving any such letter shall furnish the information called for therein to the best of his ability to the person serving the letter who will call for it.
(2) In case any question arises as to whether a person is ordinarily resident at a place at a relevant time, the instructions prescribed in Form No.2 of these Rules may also be considered by the State Election Commission for the determination of a person's W.A.Nos.238 & 249 of 2020 31 ordinary residence.
(3) The Heads of Departments, Heads of Offices and Local Authorities shall provide on request from the Electoral Registration Officer, the services of as many teachers and the employees of the Government including teachers of aided schools and employees of Local Authorities as the case may be for working as Enumerators and Supervisors. The Enumerators and Supervisors may be allowed to work part time or whole time, so long as they complete the work within the prescribed period.
6A. Manner of giving notice for registration of persons as Non Resident Indian Elector.- For the purpose of inclusion of names of a Non Resident Indian Elector in the roll as per Section 21-A of the Act, make a public notification in Official Gazette requesting every person entitled to be registered as a Non-Resident Elector to make an application under Rule 6B and also make such further publicity as may be expedient and necessary.
6B. Submission of application for inclusion of names of Non Resident Indian Elector in the rolls.- (1) Every Non Resident Indian Elector, who is not otherwise disqualified for registration and is desirous of being registered in the roll for the constituency pertaining to the locality in which his place of residence in Kerala as mentioned in his passport is located, may make an application in Form A to the concerned Registration Officer directly or by post.
(2) The provisions of sub-rules (2), (3), and (4) of Rule 11 shall mutatis mutandis apply for filing of claims and objections to the inclusion of name or to any particulars of any entry in the roll as a Non Resident Indian Elector.
W.A.Nos.238 & 249 of 2020 32(3) Every application in Form 4-A sent by post shall be accompanied by copies of all the documents mentioned in the said Form duty self attested.
(4) Every application in Form 4-A presented in person to the Registration Officer shall be accompanied by photocopies of all the documents mentioned in the said Form along with originals thereof for verification by the Registration officer.
7. Access to certain registers.-- For the purpose of preparing any roll or deciding any claim or objection to a roll, any registration officer and any person employed by him shall have access to any register of births and deaths and to the admission register of any educational institution, and it shall be the duty of every person in charge of any such register to give to the said officer or person such information and such extracts from the said register as he may require.
8. Publication of roll in draft.-- As soon as the roll for a constituency is ready, the registration officer shall publish it in draft by making a copy thereof available for inspection and displaying a notice in Form 3 at his office and in places as specified in sub-section (2) of Section 16 of the Act.
Provided that where such draft contains names of Non Resident Indian Electors, the copies of such rolls shall also be published in the official wed site of the Registration Officer.
9. Further publicity to the roll and notice.-- The registration officer shall also,
(a) make a copy of each separate part of the roll, together with a copy of the notice in Form 3 available for inspection at a specified place accessible to the public and in or near the area to which W.A.Nos.238 & 249 of 2020 33 that pan relates;
(b) give such further publicity to the notice in Form 3 as the State Election Commission may specify; and
(c) supply free of cost two copies of each separate part of the roll to every political party for which a symbol has been exclusively reserved in the State by the Election Commission of India.
10. Period for lodging claims and objections.-- Every claim for the inclusion of a name in the roll and every objection to entry therein shall be lodged within a period of fifteen days from the date of publication of the roll in draft under Rule 8:
Provided that the State Election Commission may, by notification in the Gazette, extend the period in respect of the constituency as a whole or in respect of any part thereof.
11. Form for claims and objections.-- (1) Every claim shall be--
(a) in Form 4;
(b) signed by the person desiring his name to be included in the roll, and
(c) xxxx (2) Every objections to the inclusion of a name in the roll shall be--
(a) in Form 5;
(b) preferred only by a person whose name is already included in that roll; and
(c) countersigned by another person whose name is already included in the roll in which the name objected to appears.
W.A.Nos.238 & 249 of 2020 34(3) Every objection to a particular or particulars in an entry in the roll shall be
(a) in Form 6 ; and
(b) preferred only by the person to whom that entry relates.
12. Manner of lodging claims and objections.-- Every claim or objection shall
(a) either be presented to the registration officer or to such other officer as may be designated in this behalf; or
(b) be sent by post to the registration officer.
13. Procedure to be followed by the designated officers.--(1) Every officer designated for the purpose shall
(a) maintain in duplicate a list of claims in Form 9, a list of objections to the inclusion of names in Form 10 and a list of objections to particulars in Form 11; and
(b) keep exhibited one copy of each such listen a notice board in his office.
(2) Where a claim or objection is presented to him, he shall, after complying with the requirements of sub-rule (1), forward it with such remarks, if any, as he considers proper to the registration officer.
14. Procedure to be followed by the registration officer.-- The registration officer also shall
(a) maintain in duplicate the three lists in Forms 9, 10 and 11 entering thereon the particulars of every claim or objection as and when it is received by him whether directly under Rule 12 or on being forwarded under Rule 13; and
(b) keep exhibited one copy of each such list on a notice board in his office.
W.A.Nos.238 & 249 of 2020 35Provided that where any claim or objection relates to registration of a person as a Non Resident Indian Elector, a list of such claim or objection shall be exhibited on the notice board of his office and shall be published in the official web site of the Registration Officer in such form as the State Election Commission may direct.
15 .Rejection of certain claims and objections.-- Any claim or objection which is not lodged in the form and manner, herein specified, shall be rejected by the registration officer.
16. Acceptance of claims and objections without inquiry.-- If the registration officer is satisfied as to the validity of any claim or objection, he allow it without further inquiry after the expiry of one week from the date on which it is entered in the list exhibited by him under clause(b) of rule 14:
Provided that where before any such claim or objection has been allowed, a demand for inquiry has been made in writing to the registration officer by any person, it shall not be allowed without further inquiry.
17. Notice of hearing claims and objections.--(1) Where a claim or objection is not disposed of under rule 15 or rule 16, the registration officer shall,
(a) specify in the list exhibited by him under clause (b) of rule 14 the date, time and place of the hearing of the claim or objection; and
(b) give notice of the hearing
(i) in the case of a claim, to the claimant in Form 12;
(ii) in the case of an objection to the inclusion of a name, to the objector in Form 13 and to the person objected to in Form 14; and W.A.Nos.238 & 249 of 2020 36
(iii) in the case of an objection to a particular or particulars in an entry, to the objector in Form 15.
(2) A notice under this rule may be given either personally or through a person duly authorised in this behalf or by registered post or by affixing it to the person's residence or last known residence within the constituency.
18. Inquiry into claims and objections.--
(1) The registration officer shall hold a summary inquiry into every claim or objection in respect of which notice has been given under rule 17 and shall record his decision thereon.
(2) At the hearing, the claimant or as the case may be, the objector and the person objected to and any other person who, in the opinion of the registration officer, is likely to be of assistance to him, shall be entitled to appear and be heard.
(3) The registration officer may in his discretion--
(a) require any claimant, objector or person objected to; to appear in person before him;
(b) require that the evidence tendered by any person shall be given on oath and administer an oath for the purpose.
18A. A Special provision for inquiry into claims and objections of Non Resident Indian Electors.- On every application received from Non Resident Indian Elector for inclusion of name in the electoral roll, the Electoral Registration Officer shall,
(a) publish a list of such claims as per the provisions of Rule 14;
(b) conduct a summary enquiry on each of such claim,
(c) after hearing objections if any, decide whether the name can be included in the electoral roll after one week from the date of publication of the list under clause (a).
19. Inclusion of names inadvertently omitted.-- If it W.A.Nos.238 & 249 of 2020 37 appears to the registration officer that owing to inadvertence or error during preparation, the names if any electors have been left out of the roll and that remedial action should be taken under this rule, the registration officer shall,-
(a) prepare a list of the names and other details of such electors ;
(b) exhibit on the notice board of his office a copy of the list together with a notice as to the time and place at which the inclusion of these names in the roll will be considered, and also publish the list and the notice in such other manner as he may think fit; and
(c) after considering any verbal or written objections that may be preferred, decide whether all or any of the names should be included in the roll.
21. Final publication of roll.-- (1) The registration officer shall thereafter-
(a) prepare a list of amendments to carry out his decisions under rules 16, 18, 19 and 20 and to correct any clerical or printing errors or other inaccuracies subsequently discovered in the roll;
(b) publish the roll, together with the list of amendments by making a complete copy thereof available for inspection and displaying a notice in Form 16 at his office; and Provided that where the roll contains the name of any Non Resident Indian elector the same shall also be published in the official website of the Electoral Registration Officer.
(c) subject to such general or special directions as may be given by the State Election Commission, supply free of cost, two copies of the roll, as finally published, with the list of amendments, if any, to every political party for which a symbol has been exclusively reserved by the Election Commission of India.
(2) On such publication, the roll together with the list of amendments shall be the electoral roll of the constituency.
W.A.Nos.238 & 249 of 2020 38(3) Where the roll (hereafter in this sub-rule referred to as the basic roll), together with the list of amendments, becomes the electoral roll for a constituency under sub-rule (2) the registration officer may, for the convenience of all concerned, integrate, subject to any general or special directions issued by the State Election Commission in this behalf, the list in to the basic roll by incorporating inclusion of names, amendments, transportation or deletion of entries in the relevant parts of the basic roll itself, so however that no change shall be made in the process of such integration in the name of any elector or in any particulars relating to any elector, as given in the list of amendments.
22. Appeals from orders deciding claims and objections.-- (1) An appeal shall lie from any decision of the registration officer under rule 18, rule 19 or rule 20 to such officer of Government as the State Election Commission may designate in this behalf (hereinafter referred to as the appellate officer).
Provided that an appeal shall not lie where the person desiring to appeal has not availed himself of his right to be heard by, or to make representations to the registration officer on the matter which is the subject of appeal.
(2) Every appeal under sub-rule (1) shall be- (a) in the form of a memorandum signed by the appellant, and accompanied by a copy of the order appealed against and a fee of Rs.2 (Rupees two) to be paid-
(i) by means of non-judicial stamps, or
(ii) in such other manner as may be directed by the State Election Commission, and
(b) presented to the appellate officer within a period of fifteen days from the date of announcement of the decision or sent to W.A.Nos.238 & 249 of 2020 39 that officer by registered post so as to reach him within that period.
(3) The presentation of an appeal under this rule shall not have the effect of staying or postponing any action to be taken by the registration officer under rule 21.
(4) Every decision of the appellate officer shall be final, but insofar as it reverses or modifies a decision of the registration officer, shall take effect only from the date of the decision in appeal.
(5) The registration officer shall cause such amendments to be made in the roll as may be necessary to give effect to the decisions of the appellate officer under this rule.
23. Special provision for preparation of rolls on redelimitation of constituencies.-- (l) If any constituency is delimited anew in accordance with law and it is necessary urgently to prepare the roll for such constituency, the State Election Commission may direct that it shall be prepared-
(a) by putting together the rolls of such of the existing constituencies or parts thereof as are comprised within the new constituency; and
(b) by making appropriate alterations in the arrangement, serial numbering and headings of the rolls so compiled.
(2) The roll so prepared shall be published in the manner specified in rule 21 and shall, on such publication be the electoral roll for the new constituency.
24. Revision of rolls.-- (1) The roll for every constituency shall be revised under sub section (2) of section 22 of the Act either intensively or summarily or partly intensively and partly summarily as the State Election Commission may direct.
W.A.Nos.238 & 249 of 2020 40(2) Where the roll or any part thereof is to be revised intensively in any year, it shall be prepared afresh and rules 3 to 22 shall apply in relation to such revision as they apply in relation to the first preparation of a roll.
(3) When the roll or any part thereof is to be revised summarily in any year, the registration officer shall cause to be prepared a list of amendments to the relevant parts of the roll on the basis of such information as may be readily available and publish the roll together with the list of amendments in drafts; and the provisions of rules 7 to 22 shall apply in relation to such revision as they apply in relation to the first preparation of a roll.
(4) Where at any time between the publication in draft of the revised roll under sub-rule (2) or of the roll and list of amendments under sub-rule (3) and the final publication of the same under rule 21 any names have been directed to be included in the roll for the time being in force under section 24 of the Act, the registration officer shall cause the names to be included also in the revised roll unless there is, in his opinion, any valid objection to such inclusion.
25. Correction of entries and inclusion of names in electoral rolls.-- (1) Every application under section 23 or sub- section (1) of section 24 of the Act shall be made in duplicate in such one of [he Forms 4, 6, 7 and 8 as may be appropriate and shall be accompanied by a fee of two rupees.
(2) Every such application as is referred to in sub-rule (1) shall be presented to the registration officer in such manner as the State Election Commission may direct.
W.A.Nos.238 & 249 of 2020 41(3) Every application for inclusion presented in pursuance of sub-rule (2) shall be countersigned, where necessary, by another person whose name is already included in the roll in which the claimant desires his name to be included.
(4) The fee specified in sub-rule (1) shall be
(a) paid by means of non-judicial stamps ; or
(b) paid in such other manner as may be directed by the Slate Election Commission.
(5) The registration officer shall, immediately on receipt of such application, direct that one copy thereof be displayed in some conspicuous place in his office together with a notice inviting objection to such application within a period of seven days from the date of such display.
(6) The registration officer, shall, as soon as may be after the expiry of the period specified in sub-rule (5), consider the application and objections thereto, if any, received by him and shall, if satisfied, direct the inclusion, deletion, correction or transposition of entries in the roll, as may be necessary : Provided that when an application is rejected by the registration officer, he shall record in writing a brief statement of his reasons for such rejection.
26. Appeals from orders.-- l) Every appeal under section 25 of the Act shall be,-
(a) in the Form of a memorandum signed by the appellant;
(b) accompanied by a copy of the order appealed against and a fee of ten rupees to be .-
W.A.Nos.238 & 249 of 2020 42(i) paid by means of non-judicial stamps; or
(ii) paid in such other manner as may be directed by the State Election Commission; and
(c) presented to the District Election Officer within a period of fifteen days from the date of the order appealed against or sent by registered post so as to reach him within that period.
Provided that the District Election Officer may condone the delay in the presentation of the appeal to him, if he is satisfied that the appellant had sufficient cause for not presenting it within the time prescribed.
(2) For the purpose of sub-rule (1) an appeal shall be deemed to have been presented to the District Election Officer, when the memorandum of appeal is delivered by, or on behalf of, the appellant the District Election Officer himself."
23. Election Commission of India has brought out a Manual on Electoral Rolls, in an attempt to present all the existing instructions issued on all aspects related to preparation and revision of electoral rolls from time to time.
The preparation of electoral rolls is a constitutional responsibility of the Election Commission. Chapters 9.3, 9.3.1, 9.3.2, 9.3.2.1, 9.3.3, 24.4, 24.5 of the Manual are extracted hereunder:
"9.3 Types of Revision:
Rule 25(1) of Registration of Electors Rules, 1960 says that the roll for every constituency shall be revised either intensively or summarily or partly intensively and partly summarily, as the Election Commission may direct.W.A.Nos.238 & 249 of 2020 43
9.3.1 Intensive Revision - The Rule 25 further states that where a roll is revised intensively it shall be prepared afresh.
In other words, an intensive revision is a denovo process without reference to the earlier existing roll. The Enumerators/Booth Level Officers visit each house in the specific polling station area, assigned to them. Normally, they make 2 visits - In the 1st visit, the houses are serially numbered, if not already numbered by the local authorities; In the 2nd visit, they note down all relevant particulars of the eligible persons staying in each house in an electoral card. A copy of the electoral card is handed over to the head of the house hold or, in his absence, to any adult member of the family. A separate electoral card (separate page of enumeration pad/Booth Level Officer's Register) is used for one household. The work of Enumerators/Booth Level Officers is super checked by Supervisors, Assistant Electoral Registration Officers, Electoral Registration Officers and District Election Officers. On the basis of such enumeration, a manuscript is prepared in written form. The names in each part are arranged according to house numbers and are arranged in serial order. Thereafter, the manuscript is computerized and draft roll is prepared and published, inviting claims and objections. After disposal of such claims and objections, the roll is finally published.
9.3.2 Summary Revision - In a summary revision the roll is simply updated and there is no house-to-house enumeration. According to Rule 25, the Registration Officer shall cause to be prepared a list of amendments to the relevant parts of the roll and on the basis of such information as may be readily W.A.Nos.238 & 249 of 2020 44 available, publish the roll together with the list of amendments as a draft inviting claims and objections. After disposal of the claims and objections filed during the period for filing claims and objection, the rolls are finally published. The final roll includes the draft published and the supplements prepared as result of the revision exercise.
9.3.2.1 Special Summary Revision - Where, by reason of any inaccuracies in the rolls, such as failure to cover any place or localities or blocks or any section of electors or for any other reasons, the Election Commission considers it necessary so to do, it may, after recording such reasons, order special revision of the roll of any constituency or part thereof. The procedure for carrying out special revision is determined by the Election Commission in each case having regard to the circumstances of the case and other relevant factors. Under this type of revision, the Election Commission may adopt changes in the existing procedure, suitable to the specific circumstances. For example, there is no provision for house to house verification during summary revision but the Election Commission may order house to house verification in all the constituencies or some specified constituencies during special summary revision. The Booth Level Officers, while undertaking field verification take Booth Level Officer's register containing pre-filled house- hold electors' details for verification. They indicate change/ correction in the existing details and also make new entries in respect of fresh eligible persons. The Booth Level Officer also arrange reading out of the draft roll at Gram Sabhas/Ward Committees. Besides, during special summary revision special campaigns are also organized on the weekend holidays where W.A.Nos.238 & 249 of 2020 45 the applicants can visit the designated locations to inspect draft roll or deposit their claims and objections, in addition to the normal practice of lodging claims and objections in the offices of Electoral Registration Officers. Now a days, the Election Commission generally orders special summary revision every year.
9.3.3 Partly Intensive and Partly Summary Revision - In such revision the existing electoral rolls are published in draft. Simultaneously, Enumerator/BLOs are sent to the households for verification. After disposing of claims and objections, supplementary lists of addition, deletions and corrections are prepared and published together with main(mother) roll form the finally published Electoral Roll.
24.4 Sharing of Electoral Roll with State Election Commissions 24.4.1 In terms of the 73rd and 74th amendments of the Constitution, the Parliament enacted to form State Election Commissions with the mandate to conduct regular elections for local bodies in the States. Consequently, the states have passed appropriate legislations for regular elections to Panchayats and Municipalities. These legislations have provisions for adopting electoral roll prepared and revised by the Election Commission for conduct of elections of local bodies by the State Election Commissions. While some State laws make provision for using the Election Commission's roll as draft document and subsequently, going through a formal process of revision of the electoral roll of local bodies according to their requirement, others W.A.Nos.238 & 249 of 2020 46 adopt the Election Commission's roll, in-toto, only regrouping the electors according to the wards and Polling Stations of the concerned Panchayats/ Municipalities.
24.4.2 Consequent upon computerization of electoral roll by the Election Commission, many State Election Commissions have requested the Election Commission to allow use of its electoral roll database for generating the electoral roll of State local bodies. The matter has been discussed in detail with State Election Commissioners several times. Though there has been a broad consensus on having a common electoral roll in larger interest of the nation, yet that has not been achieved due to certain legal and technical problems.
24.4.3 In the meantime, the Election Commission has issued guidelines to all Chief Electoral Officers stating that the State Election Commissions can be supplied copies of the electoral roll in PDF format. In case they also request for the computerized database of the electors that can also be shared with them. In case the State Election Commissions request for photographs in digital format in order to enable them to prepare photo electoral roll for local body constituencies that may also be supplied to them.
24.5 Sharing of Electoral Roll with Various Government Departments.
The Election Commission has issued following specific guidelines to the Chief Electoral Officers of all States for W.A.Nos.238 & 249 of 2020 47 sharing of electoral roll database and photographs in digital formats to various Government Departments:
24.5.1 The Government Department that seeks the data can be provided CDs of the electoral roll in PDF format, as these files are available on the website also. It may be noted that the CDs and web files in case of photo electoral roll don't contain images of electors - same condition applies to the PDF roll given to other Departments.
24.5.2 However, with a view to enable Departments of the Central/State Governments to utilize the electoral roll database for their own specific purposes, the Chief Electoral Officers are authorized to provide a copy of the computerized data of the electoral roll (i.e. the database files). It is clarified that in case of any question or dispute, it is the printed copy, which should be considered as duly authenticated electoral roll for the Assembly Constituency."
24. Chapter VI of the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994 deal with the provisions relating to preparation of electoral rolls. Rules have been framed under the Act. General elections to the Local Self Government Institutions in Kerala (except Mattannoor Municipality) were held on 2.11.2015 and 5.11.2015 respectively. In 2015, State Election Commission has decided to prepare a database exclusively for Local Self Government Institutions. Accordingly, a draft electoral roll was W.A.Nos.238 & 249 of 2020 48 prepared based on the electoral roll issued by the State Election Commission for 2015 general elections. All those, who have attained 18 years as on 1.1.2020 and satisfy the conditions for registration in the electoral roll, as per Section 20 of the Kerala Panchayat Raj Act, 1994 and Section 76 of the Kerala Municipality Act, 1994 can be enrolled in the voters' list. The last date for submitting the claims/application for inclusion of names and objections to the draft electoral roll is 14-02-2020. After considering the claims and objections as per the procedure prescribed by the Rules, the Electoral Registration Officers will publish the final electoral roll on 28.02.2020.
25. The State Election Commission while issuing Exhibit-P1 order, has made it clear that the electoral roll for the year 2015, (1) and (2) noted therein, would be taken as the basis for preparation of the voters' list for elections to the Local Self Government Institutions, to be held on 11.11.2020.
According to the State Election Commission, electoral roll for the Assembly Constituencies is prepared by the Election Commission of India, part-wise, each part covering a polling area, which is different from the polling area of Local Self Government Institutions, which are ward-wise.
26. Section 146 of the Kerala Panchayat Raj Act, 1994 does not contemplate to adopt electoral roll of the Assembly Elections for preparation or revision of electoral roll for elections to Local Self Government Institutions.
W.A.Nos.238 & 249 of 2020 49Electoral roll prepared by the Election Commission of India is in respect of each polling booth in the Assembly Elections. At this juncture, it should be noted that it is not the case of the State Election Commission that the ward-
wise voters' list is not available with the State Election Commission, nor the Commission cannot get the details from the Election Commission of India.
True that, each ward is a constituency in a Panchayat and other Local Self Government Institutions. According to the State Election Commission, verification and updating is cumbersome and expensive.
27. In 2014, the State Election Commission has decided to adopt the electoral roll of Assembly Constituencies with which, the Election Commission of India went to poll for the 2014 Parliamentary elections and created a database of its own by segregating it, in accordance with the constituencies of Local Self Government Institutions. When the State Election Commission has segregated the voters' list prepared by the Election Commission of India for the Elections, 2014 and adopted the same for the Local Self Government Institutions elections in 2015, by segregating the same ward-wise, the same exercise can be done for the elections to the Local Self Government Institutions by segregating the voters' list prepared for the General Elections, W.A.Nos.238 & 249 of 2020 50 2019. The only exercise to be done is that polling area and booths have to be arranged, having regard to the voters in each ward, panchayats etc.
28. Voters' list has been revised in 2019 General Elections to the Parliament and, therefore, database is already available. If that be so, decision of the State Election Commission to take voters' list of 2019 Parliamentary elections as the basis for the elections to the Local Self Government Institutions, 2020 is not reasonable. In 2015, by adopting the electoral roll of the Assembly Constituencies, a database for the Local Self Government Institutions has been prepared by the State Election Commission, by segregation. There is no reason as to why, such a course cannot be adopted for preparing a voters' list for the Local Self Government Institutions by taking the Parliamentary General Election's List, 2019, when the ward-wise data is available.
29. Election Commission Regulations, extracted above, enable sharing of database. Earlier, elections for the Local Self Government Institutions were conducted on the basis of final electoral roll prepared by the State Election Commission for the conduct of 2015 General Elections. The same voters' list i.e. 2015, need not be taken as the basis, when there is voters' list prepared in 2019 General Elections for the Parliament. With the sharing of data from the Election Commission of India, segregation for the Local Self Government W.A.Nos.238 & 249 of 2020 51 Institutions can be done, as it would enable the voters, who have exercised their franchise in 2019, from once again registering for the elections for Local Self Government Institutions.
30. At this juncture, it is also to be noted that as per Section 24 of the Kerala Panchayat Raj Act, 1994, a person, whose name is not included in the electoral roll of a constituency, may apply to the electoral registration officer for inclusion of this name in that roll. In the case on hand, they have already registered and cast their votes in 2019 General Elections.
31. Yet another aspect to be taken note of is that the electoral roll for 2015 Local Self Government Institutions has been prepared on the basis of the electoral roll for Assembly Elections, 2014. If such list is taken as the basis, then the chances of many voters, who have registered and voted in 2019, being included in the voters' list prepared for the 2020 Local Self Government Institutions election would be less. But, to cast their votes, they have to register again. That would be a repetitive exercise. Instead, the State Election Commission can always take 2019 electoral list prepared for the Parliamentary elections, as the basis for preparing the electoral list for Local Self Government Institutions election, 2020. Draft electoral roll for the constituencies of Local Self Government Institutions, except Mattannor Municipality, has been published on 20.01.2020. Online applications/claims W.A.Nos.238 & 249 of 2020 52 are being received from 14.2.2020 and according to the State Election Commission, the voters' list will be finalised and published on 28.2.2020.
32. Though it is stated that 8,20,020 online applications, 4,262 online corrections and 24,247 online transpositions have been received and that, the same is simultaneously verified by the Field Level Officers, considering the process involved in verification, hearing of objections, orders and appeals thereof, in terms of the Act and Rules extracted above, contentions of the appellants that it is a laborious process and that nearly 7,00,319 voters have to re-do the exercise of registering their names in the voters' list, which is repetitive, cannot be ignored. Totally, 8,48,529 online applications have been received. The time for verification, hearing of objections, orders etc., have to be completed within 14 days i.e., between 14.02.2020 and 28.02.2020.
Though the State Election commission states that within 14 days, the entire exercise would be completed, we are unable to comprehend the same. If the electoral list for the Parliamentary general elections 2019 is taken as the basis, then verification can be done after deducting 7,00,319 voters who had already cast their vote in 2019 general elections, and that would take lesser time and reduce the expenditure. In order to ensure larger public interest, to avoid unnecessary expenditure, and to save time, it is desirable that the electoral roll that is drawn up during 2019 to be followed, which the State W.A.Nos.238 & 249 of 2020 53 Election Commission has failed to take note of.
33. Yet another aspect to be taken note of is the directions of the Election Commission of India in the matter of sharing of database with them to the State Commissions/Chief Electoral Officers for generating the electoral roll of State local bodies. At the risk of repetition, the relevant Regulations are reproduced:
"24.5 Sharing of Electoral Roll with Various Government Departments.
The Election Commission has issued following specific guidelines to the Chief Electoral Officers of all States for sharing of electoral roll database and photographs in digital formats to various Government Departments:
24.5.1 The Government Department that seeks the data can be provided CDs of the electoral roll in PDF format, as these files are available on the website also. It may be noted that the CDs and web files in case of photo electoral roll don't contain images of electors - same condition applies to the PDF roll given to other Departments.
24.5.2 However, with a view to enable Departments of the Central/State Governments to utilize the electoral roll database for their own specific purposes, the Chief Electoral Officers are authorized to provide a copy of the computerized data of the electoral roll (i.e. the database files). It is clarified that in case of any question or dispute, it is the printed copy, which should be W.A.Nos.238 & 249 of 2020 54 considered as duly authenticated electoral roll for the Assembly Constituency. "
34. When sharing is permissible under the Regulations, State Election Commission could have obtained the database of 2019 General Elections from the Election Commission of India, which is latter in point of time, for generating the electoral roll of the Local Body Elections, instead of resorting to 2015 Electoral Rolls of the Assembly Elections. There is no reason either in Exhibit-P1 or in the counter affidavit, as to why such a course was not adopted. It appears that before the writ court, arguments have been advanced mainly with reference to Section 146 of the Kerala Panchayat Raj Act, 1994, which deals with adoption of an electoral roll of Assembly Constituency.
35. On the facts and circumstances of this case, the core issue, which ought to have been considered is not adoption, but, which electoral roll and which year ought to have been taken as the basis for preparation of the electoral roll for elections to the Local Self Government Institutions. Going through the material on record, Act, Rules and Regulations of the Election Commission of India, we are of the view that the State Election Commission has failed to consider the regulations, which facilitate sharing and generation of electoral rolls for the local body elections, but erroneously taken 2015 electoral list as the basis for preparation of the voters' list for local body W.A.Nos.238 & 249 of 2020 55 elections.
36. No reasons have been assigned in the counter affidavit as to why 2019 voters' list/electoral roll cannot be taken as the basis. Counter affidavit only deals with the 2015 electoral list, which has been prepared on the basis of 2014 Assembly Elections.
37. Today, learned standing counsel for the State Election Commission has brought to our notice a letter dated 7.2.2020 issued by the Chief Electoral Officer to the Secretary, Election Commission of India, New Delhi, wherein it is certified that the Financial Electoral Rolls of all the 140 Assembly Constituencies have been published on 07.02.2020 as per the revised Summary Revision, 2020 schedule of the Election Commission of India.
38. On the aspect of judicial review, the decision making process of the State Election Commission in taking 2015 voters' list as the basis for the preparation of 2020 voters' list for the local body elections, we deem it fit to consider a few decisions.
(i) In Council of Civil Service Unions Vs. Minister for the Civil Service, reported in (1984) 3 All ER 935, Lord Diplock enunciated three grounds upon which an administrative action is subject to control by judicial review, viz. (i) illegality (ii) irrationality and (iii) procedural impropriety, as follows:
"By "illegality" he means that the decision-maker must understand correctly the law that regulates his decision- making power and must give effect to it, and whether he has or has not, is a W.A.Nos.238 & 249 of 2020 56 justiciable question; by "irrationality" he means "Wednesbury unreasonableness". It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided, could have arrived at it; and by "procedural impropriety" he means not only failure to observe the basic rules of natural justice or failure to act with procedural fairness, but also failure to observe procedural rules that are expressly laid down in the legislative instrument by which the tribunal's jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
(ii) The principle of "Wednesbury unreasonableness" or irrationality, classified by Lord Diplock as one of the grounds for intervention in judicial review, was lucidly summarised by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., reported in (1948) 1 KB 223 = (1947) 2 All ER 680, as follows:
"...the court is entitled to investigate the action of the local authority with a view of seeing whether it has taken into account matters which it ought not to take into account, or conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere."
(iii) In State of U.P. & Anr. Vs. Johri Mal, reported in (2004) 4 SCC 714, the Hon'ble Supreme Court observed thus:
"The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi-judicial or administrative. The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review W.A.Nos.238 & 249 of 2020 57 governance under the rule of law or do the courts step into the areas exclusively reserved by the suprema lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review court."
(iv) In Rameshwar Prasad & Ors. (VI) v. Union of India & Anr., reported in (2006) 2 SCC 1, the Hon'ble Apex Court observed thus:
"A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.
It is an unwritten rule of law, constitutional and administrative, that whenever a decision-making function is entrusted to be subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote."
(v) In Jayrajbhai Jayantibhai Patel v. Anilbhai Jayanitbhai Patel and Ors., reported in (2006) 8 SCC 200, the Hon'ble Supreme Court at paragrah 18 observed as under:-
"18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no W.A.Nos.238 & 249 of 2020 58 reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision- making process and not the decision."
The following passage from Professor Bernard Schwartz's book Administrative Law (Third Edition) aptly echo's our thoughts on the scope of judicial review:
"Reviewing courts, the cases are now insisting, may not simply renounce their responsibility by mumbling an indiscriminate litany of deference to expertise. Due deference to the agency does not mean abdication of the duty of judicial review and rubber-stamping of agency action: We must accord the agency considerable, but not too much deference; it is entitled to exercise its discretion, but only so far and no further."
Quoting Judge Leventhal from Greater Boston Television Corp. Vs. FCC, 444 F. 2d 841 (D.C.Cir. 1970), he further says:
"...the reviewing court must intervene if it "becomes aware...that the agency has not really taken a 'hard look' at the salient problems, and has not genuinely engaged in reasoned decision-making..."
(vi) In Ganesh Bank of Kurundwad Ltd. and others Vs. Union of India and others, reported in (2006) 10 SCC 645, the Hon'ble Supreme Court at paragraphs 50 and 51 observed as under:-
"50. There should be judicial restraint while making judicial review in administrative matters. Where irrelevant aspects have been eschewed from consideration and no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, there is no scope for interference. The duty of the court is
(a) to confine itself to the question of legality; (b) to decide whether the decision making authority exceeded its powers (c) committed an error of law (d) committed breach of the rules of natural justice and
(e) reached a decision which no reasonable Tribunal would have W.A.Nos.238 & 249 of 2020 59 reached or (f) abused its powers. Administrative action is subject to control by judicial review in the following manner:
(i) Illegality.- This means the decision-maker must understand correctly the law that regulates his decision- making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
........Professor De Smith in his classical work "Judicial Review of Administrative Action" 4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.
The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety."
W.A.Nos.238 & 249 of 2020 60(vii) In Bank of India v. T.Jogram reported in (2007) 7 SCC 236, the Hon'ble Supreme Court has held that it is well settled principle of law that Judicial review is not against the decision, but is against the decision making process.
(viii) In State of Maharashtra v. Prakash Prahland Patil reported in (2009) 12 SCC 159, the Hon'ble Apex Court, at Paragraphs 5 and 6, held as follows:
"5. The scope for judicial review has been examined by this court in several cases. It has been consistently held that the power of judicial review is not intended to assume a supervisory role or don the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the supreme lex to other organs of the State. A mere wrong decision, without anything more, in most of the cases will not be sufficient to attract the power of judicial review. The supervisory jurisdiction conferred upon a court is limited to see that the authority concerned functions within its limits of its authority and that its decisions do not occasion miscarriage of justice.
6. The courts cannot be called upon to undertake governmental duties and functions. Courts should not ordinarily interfere with a policy decision of the State. While exercising power of judicial review the court is more concerned with the decision making process than the merit of the decision itself."
(ix) In All India Railway Recruitment Board v. K.Shyam Kumar reported in (2010) 6 SCC 614, the Hon'ble Supreme Court, held as follows:
"22. Judicial review conventionally is concerned with the question of jurisdiction and natural justice and the Court is not much concerned with the merits of the decision but how the decision was reached. In Council of Civil Service Unions v. Minister of State for Civil Service (1984) 3 All ER 935 the (GCHQ Case) the House of Lords rationalized the grounds of judicial review and ruled that the basis of judicial review could be highlighted under three principal heads, namely, illegality, procedural impropriety and irrationality.W.A.Nos.238 & 249 of 2020 61
Illegality as a ground of judicial review means that the decision maker must understand correctly the law that regulates his decision making powers and must give effect to it. Grounds such as acting ultra vires, errors of law and/or fact, onerous conditions, improper purpose, relevant and irrelevant factors, acting in bad faith, fettering discretion, unauthorized delegation, failure to act etc., fall under the heading "illegality". Procedural impropriety may be due to the failure to comply with the mandatory procedures such as breach of natural justice, such as audi alteram partem, absence of bias, the duty to act fairly, legitimate expectations, failure to give reasons etc.
23. Ground of irrationality takes in Wednesbury unreasonableness propounded in Associated Provincial Picture Houses Limited v. Wednesbury Corporation (1947)2 All ER 680, Lord Greene MR alluded to the grounds of attack which could be made against the decision, citing unreasonableness as an `umbrella concept' which covers the major heads of review and pointed out that the court can interfere with a decision if it is so absurd that no reasonable decision maker would in law come to it. In GCHQ Case (supra) Lord Diplock fashioned the principle of unreasonableness and preferred to use the term irrationality as follows:
"By `irrationality' I mean what can now be succinctly referred to as "Wednesbury's unreasonableness", ....... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
24. In R. v. Secretary of State for the Home Department ex parte Brind (1991) 1 All ER 720, the House of Lords re-examined the reasonableness of the exercise of the Home Secretary's discretion to issue a notice banning the transmission of speech by representatives of the Irish Republican Army and its political party, Sinn Fein. Court ruled that the exercise of the Home Secretary's power did not amount to an unreasonable exercise of discretion despite the issue involving a denial of freedom of expression. House of Lords however, stressed that in all cases raising a human rights issue proportionality is the appropriate standard of review.
W.A.Nos.238 & 249 of 2020 6225. The House of Lords in R (Daly) v. Secretary of State for the Home Department (2001) 2 AC 532 demonstrated how the traditional test of Wednesbury unreasonableness has moved towards the doctrine of necessity and proportionality. Lord Steyn noted that the criteria of proportionality are more precise and more sophisticated than traditional grounds of review and went on to outline three concrete differences between the two:-
(1) Proportionality may require the reviewing Court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions.
(2) Proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations.
(3) Even the heightened scrutiny test is not necessarily appropriate to the protection of human rights.
Lord Steyn also felt most cases would be decided in the same way whatever approach is adopted, though conceded for human right cases proportionality is the appropriate test.
26. The question arose as to whether doctrine of proportionality applies only where fundamental human rights are in issue or whether it will come to provide all aspects of judicial review. Lord Steyn in R. (Alconbury Development Limited) v. Secretary of State for the Environment, Transport and the Regions (2001) 2 All ER 929 stated as follows:-
"I consider that even without reference to the Human Rights Act, 1998 the time has come to recognize that this principle (proportionality) is part of English administrative law not only when Judges are dealing with Community acts but also when they are dealing with acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing".
Lord Steyn was of the opinion that the difference between both the principles was in practice much less than it was sometimes suggested W.A.Nos.238 & 249 of 2020 63 and whatever principle was applied the result in the case was the same.
27. Whether the proportionality will ultimately supersede the concept of reasonableness or rationality was also considered by Dyson Lord Justice in R. (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397 and stated as follows:-
"We have difficulty in seeing what justification there now is for retaining Wednesbury test ..... but we consider that it is not for this Court to perform burial rights. The continuing existence of the Wednesbury test has been acknowledged by House of Lords on more than one occasion. A survey of the various judgments of House of Lords, Court of Appeals, etc. would reveal for the time being both the tests continued to co-exist."
28. Position in English Administrative Law is that both the tests that is. Wednesbury and proportionality continue to co-exist and the proportionality test is more and more applied, when there is violation of human rights, and fundamental freedom and the Wednesbury finds its presence more on the domestic law when there is violations of citizens ordinary rights. Proportionality principle has not so far replaced the Wednesbury principle and the time has not reached to say good bye to Wednesbury much less its burial.
29. In Huang case (2007) 4 All ER 15 (HL), the House of Lords was concerned with the question whether denial of asylum infringes Article 8 (Right to Respect Family Life) of the Human Rights Act, 1998. House of Lords ruled that it was the duty of the authorities when faced with individuals who did not qualify under the rules to consider whether the refusal of asylum status was unlawful on the ground that it violated the individual's right to family life. A structured proportionality test has emerged from that decision in the context of the violation of human rights. In R (Daly) (supra) the House of Lords considered both common law and Article 8 of the convention and ruled that the policy of excluding prisoners from their cells while prison officers conducted searches, which included scrutinizing privileged legal correspondence was unlawful.
W.A.Nos.238 & 249 of 2020 6430. Both the above-mentioned cases, mainly concerned with the violation of human rights under the Human Rights Act, 1998 but demonstrated the movement away from the traditional test of Wednesbury unreasonableness towards the test of proportionality. But it is not safe to conclude that the principle of Wednesbury unreasonableness has been replaced by the doctrine of proportionality.
31. Justice S.B. Sinha, as His Lordship then was, speaking for the Bench in State of U.P., v. Sheo Shanker Lal Srivastava and Ors. (2006) 3 SCC 276 after referring to the judgment of the Court of appeal in Huang v. Secretary of State for the Home Department (2005) 3 All ER 435, R. v. Secretary of State of the Home Department, ex parte Daly (2001) 3 All ER 433 (HL) opined that Wednesbury principle may not now be held to be applicable in view of the development in constitutional law and held as follows:-
"24. While saying so, we are not oblivious of the fact that the doctrine of unreasonableness is giving way to the doctrine of proportionality.
25. It is interesting to note that the Wednesbury principles may not now be held to be applicable in view of the development in constitutional law in this behalf. See, for example, Huang v. Secy. of State for the Home Deptt. wherein referring to R. v. Secretary of State of the Home Department, ex parte Daly, it was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than Wednesbury, but involves a full-blown merit judgment, which is yet more than ex p. Daly, requires on a judicial review where the court has to decide a proportionality issue."
32. Sheo Shanker Lal Srivastava case was later followed in Indian Airlines Ltd., v. Prabha D.Kanan (2006) 11 SCC 67. Following the above mentioned two judgments in Jitendra Kumar and Others v. State of Haryana and Another (2008) 2 SCC 161, the Bench has referred to a passage in HWR Wade and CF Forsyth on Administrative Law, 9th Edition. (2004), pages 371- 372 with the caption "Goodbye to Wednesbury" and quoted from the book which reads as follows:-
W.A.Nos.238 & 249 of 2020 65"The Wednesbury doctrine is now in terminal decline but the coup de grace has not yet fallen, despite calls for it from very high authorities" and opined that in some jurisdictions the doctrine of unreasonableness is giving way to doctrine of proportionality."
33. Indian Airlines Ltd.'s case and Sheo Shanker Lal Srivastava's case (supra) were again followed in State of Madhya Pradesh and Others v. Hazarilal, (2008) 3 SCC 273 and the Bench opined as follows:-
"Furthermore the legal parameters of judicial review have undergone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality.".
34. With due respect, we are unable to subscribe to that view, which is an overstatement of the English Administrative Law.
35. Wednesbury principle of unreasonableness as such has not been replaced by the doctrine of proportionality though that test is being applied more and more when violation of human rights is alleged. H.W.R. Wade & C.F. Forsyth in the 10th Edition of Administrative Law (2009), has omitted the passage quoted by this court in Jitender Kumar case and stated as follows:
"Notwithstanding the apparent persuasiveness of these views the coup de grace has not yet fallen on Wednesbury unreasonableness. Where a matter falls outside the ambit of 1998 Act, the doctrine is regularly relied upon by the courts. Reports of its imminent demise are perhaps exaggerated." (emphasis applied).
36. Wednesbury and Proportionality - Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to `assess the balance or equation' struck by the decision maker. Proportionality test in some jurisdictions is also described as the "least injurious means" or "minimal impairment" test W.A.Nos.238 & 249 of 2020 66 so as to safeguard fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalize or lay down a straight jacket formula and to say that Wednesbury has met with its death knell is too tall a statement. Let us, however, recognize the fact that the current trend seems to favour proportionality test but Wednesbury has not met with its judicial burial and a state burial, with full honours is surely not to happen in the near future.
37. Proportionality, requires the Court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision- maker has achieved more or less the correct balance or equilibrium. Courts entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate, i.e. well balanced and harmonious, to this extent court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere.
38. Leyland and Anthony on Textbook on Administrative Law (5th edn. OUP, 2005) at p.331 has amply put as follows:
"Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results (in every day terms, that you should not use a sledgehammer to crack a nut) and in contrast to irrationality is often understood to bring the courts much closer to reviewing the merits of a decision".
39. Courts have to develop an indefeasible and principled approach to proportionality till that is done there will always be an overlapping between the traditional grounds of review and the principle of proportionality and the cases would continue to be decided in the same manner whichever principle is adopted.
W.A.Nos.238 & 249 of 2020 67Proportionality as the word indicates has reference to variables or comparison, it enables the Court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decision maker."
(x) In Union of India v. Rajasthan High Court reported in (2017) 2 SCC 599, the Hon'ble Supreme Court, at Paragraph 13, while discussing the scope of judicial review, held as follows:
"13. ........The powers under Article 226 are wide - wide enough to reach out to injustice wherever it may originate. These powers have been construed liberally and have been applied expansively where human rights have been violated. But, the notion of injustice is relatable to justice under the law. Justice should not be made to depend upon the individual perception of a decision maker on where a balance or solution should lie. Judges are expected to apply standards which are objective and well defined by law and founded upon constitutional principle. When they do so, judges walk the path on a road well-travelled. When judicial creativity leads judges to roads less travelled, in search of justice, they have yet to remain firmly rooted in law and the Constitution. The distinction between what lies within and what lies outside the power of judicial review is necessary to preserve the sanctity of judicial power. Judicial power is respected and adhered to in a system based on the rule of law precisely for its nuanced and restrained exercise. If these restraints are not maintained the court as an institution would invite a justifiable criticism of encroaching upon a terrain on which it singularly lacks expertise and which is entrusted for governance to the legislative and executive arms of government. Judgments are enforced, above all, because of the belief which society and arms of governance of a democratic society hold in the sanctity of the judicial process. This sanctity is based on institutional prestige. Institutional authority is established over long years, by a steadfast commitment to a calibrated exercise of judicial power. Fear of consequences is one reason why citizens obey the law as well as judicial decisions. But there are far stronger reasons why they do so and the foundation for that must be carefully preserved. That is the rationale for the principle that judicial review is confined to cases where there is a W.A.Nos.238 & 249 of 2020 68 breach of law or of the Constitution."
(xi) In Royal Medical Trust v. Union of India reported in (2017) 16 SCC 605, the Hon'ble Supreme Court, on the scope of judicial review, held as follows:
"The principle of judicial review by the constitutional courts have been lucidly stated in many an authority of this Court. In Tata Cellular v. Union of India (1994) 6 SCC 651, dealing with the concept of Judicial Review, the Court held:-
"Lord Scarman in Nottinghamshire County Council v. Secretary of State for the Environment proclaimed:
'Judicial review' is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficial power."
Commenting upon this Michael Supperstone and James Goudie in their work Judicial Review (1992 Edn.) at p. 16 say:
"If anyone were prompted to dismiss this sage warning as a mere obiter dictum from the most radical member of the higher judiciary of recent times, and therefore to be treated as an idiosyncratic aberration, it has received the endorsement of the Law Lords generally. The words of Lord Scarman were echoed by Lord Bridge of Harwich, speaking on behalf of the Board when reversing an interventionist decision of the New Zealand Court of Appeal in Butcher v. Petrocorp Exploration Ltd. 18-3-1991." Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action.
Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself."W.A.Nos.238 & 249 of 2020 69
44. After so stating, reference was made to the law enunciated in Chief Constable of the North Wales Police v. Evans (1982) 3 All ER 141 wherein, it has been ruled:-
"Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.
* * * Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."
45. In the said case, the Court also referred to R. v. Panel on Take-overs and Mergers, ex. P. Datafin plc (1987) 1 All ER 564 wherein Sir John Donaldson, M.R. Commented:-
"An application for judicial review is not an appeal."
46. The three Judge Bench further held:-
"The duty of the court is to confine itself to the question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. Committed a breach of the rules of natural justice,
4. Reached a decision which no reasonable tribunal would have reached or,
5. abused its powers."
47. The Court further opined that in the process of judicial review, it is only concerned with the manner in which the decisions have been taken. The extent of the duty is to act fairly. It will vary from case to case. Explicating further, it ruled:-
"Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:W.A.Nos.238 & 249 of 2020 70
(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention".
48. Thereafter, the Court referred to the authorities in R. v. Askew 20 and Council of Civil Service Unions v. Minister for Civil Service21 and further expressed:-
"At this stage, The Supreme Court Practice, 1993, Vol. 1, pp. 849-850, may be quoted:
"4. Wednesbury principle.-- A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., per Lord Greene, M.R.)" We may hasten to add, though the decision was rendered in the context of justification of grant of contract but the principles set out as regards the judicial review are of extreme significance.
49. Discussing at length, the principle of judicial review in many a decision, the two Judge Bench in Reliance Telecom Ltd. & Another v. Union of India & Another, has held:-
20 (1768) 4 Burr 2186 : 98 ER 139 21 (1985) 1 AC 374 :
(1984) 3 All ER 935 : (1984) 3 WLR 1174 22 (2017) 4 SCC 269 "As W.A.Nos.238 & 249 of 2020 71 we find, the decision taken by the Central Government is based upon certain norms and parameters. Though criticism has been advanced that it is perverse and irrational, yet we are disposed to think that it is a policy decision which subserves the consumers' interest. It is extremely difficult to say that the decision to conduct the auction in such a manner can be considered to be mala fide or based on extraneous considerations."
50. Thus analysed, it is envicible that the exercise of power of judicial review and the extent to which it has to be done will vary from case to case. It is necessary to state with emphasis that it has its own complexity and would depend upon the factual projection. The broad principles have been laid down in Tata Cellular (supra) and other decisions make it absolutely clear that judicial review, by no stretch of imagination, can be equated with the power of appeal, for while exercising the power under Article 226 or 32 of the Constitution, the constitutional courts do not exercise such power. The process of adjudication on merit by re-appreciation of the materials brought on record which is the duty of the appellate court is not permissible.
51. The duty of the Court in exercise of the power of judicial review to zealously guard the human rights, fundamental rights and the citizens' right of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds. (See: Union of India and Anr. v S.B. Vohra 23)"
In the light of the above discussion and decisions, we are inclined to interfere with the decision of the writ court. Judgment dated 3.2.2020 in W.P. (C) Nos.815 of 2020 and 1588 of 2020 is set aside. Exhibit-P1 order dated 4.1.2020 is quashed. Writ appeals are allowed. The State Election Commission is directed to take a suitable decision for the preparation of electoral roll for the elections for Local Self Government Institutions to be held in October-W.A.Nos.238 & 249 of 2020 72
November, 2020, taking into account 2019 electoral roll for the Parliamentary general elections, as revised upto 7.2.2020.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE krj.12/2