Allahabad High Court
Smt. Mudi vs State Election Commission And Others on 27 September, 2000
Equivalent citations: 2000(4)AWC3374, (2000)3UPLBEC2544, AIR 2001 ALLAHABAD 21, 2001 ALL. L. J. 191, 2001 (1) ALL CJ 419, 2000 (3) UPLBEC 2544, 2000 (4) ALL WC 3374, 2000 (41) ALL LR 593, 2001 ALL CJ 1 419
Author: G.P. Mathur
Bench: G.P. Mathur
JUDGMENT G.P. Mathur, J.
1. The petitioner contested election for the office of Pradhan of village Bhura, Tehsil Kairana, district Muzaffamagar which was held on June 23, 2000. In the said election 4.902 votes were cast out of which 308 votes were rejected as invalid. The petitioner secured 1,597 votes while Rishlpal, respondent No. 4 secured 1,752 votes and was accordingly declared to have been elected as pradhan. The present writ petition under Article 226 of the Constitution has been filed praying for several reliefs' including a writ of quo warranto asking respondent No. 4 to show his authority to hold the office of pradhan, a writ of mandamus for restraining respondent No. 4 from functioning as pradhan of the village, a writ of mandamus commanding State Election Commission and District Returning Officer to hold fresh election to the office of pradhan of village Bhura in accordance with the revised electoral rolls after deleting names of those who were wrongly included in the electoral roll of the gaon sabha. Further relief has been sought praying that writ of mandamus be issued commanding the State Election Commission and the District Returning Officer to delete the names of all those persons whose names have been mentioned in Annexures-2 to 4 of the writ petition. Though the relief claimed in the writ petition has not been couched in such a language but in effect, the petitioner wants that the election of respondent No. 4 as pradhan be set aside and fresh election held.
2. Sri Ravi Kant, learned counsel for the petitioner, has submitted that electoral roll of the gaon sabha, on the basis of which the election was held, was defective and fraudulent inasmuch as it contained names of large number of such persons who were either dead or were minors or were otherwise not eligible to vote in the election and, consequently, the result of the election had been materially affected and, therefore, the election of respondent No. 4 is liable to be set aside and a fresh election should be held after correcting the electorate roll.
3. In order to examine the contention raised, it is necessary to notice the provisions of the U. P. Panchayat Raj Act (hereinafter referred to as the Act) and the Rules made thereunder. Section 9 of the Act which deals with electoral roll for each territorial constituency was drastically amended by U. P. Act No. 9 of 1994. The relevant sub-sections of Section 9 of the Act which have a bearing on the controversy in hand are being reproduced below :
"9. Electoral roll for each territorial constituency.--(1) For each territorial constituency of a gram panchayat, an electoral roll shall be prepared, in accordance with the provisions of this Act and the Rules made thereunder, under the superintendence, direction and control of the State Election Commission.
(1A) Subject to the superintendence, direction and control of the State Election Commission, the Mukhya Nirvachan Adhikari (Panchayat) shall supervise, and perform all functions relating to the preparation, revision and correction of the electoral rolls in the State in accordance with this Act and the Rules made thereunder.
(1B) .....
(2) The electoral roll referred to in sub-section (1) shall be published in the prescribed manner and upon its publication it shall, subject to any alteration. addition or modification made in accordance with this Act and the Rules made thereunder, be the electoral roll for that territorial constituency prepared in accordance with the provisions of this Act.
(3) Subject to the provisions of sub-sections (4), (5), (6) and (7) every person who has attained the age of 18 years on the first day of January of the year in which the electoral roll is prepared or revised and who is ordinarily resident in the territorial constituency of a gram panchayat shall be entitled to be registered in the electoral roll for that territorial constituency.
Explanation .....
(4). .....
(5). .....
(6). .....
(7). .....
(8) Where the State Election Commission is satisfied after making such enquiry as it may deem fit, whether on an application made to it or on its own motion that any entry in the electoral roll should be corrected or deleted or that the name of any person entitled to be registered should be added in the electoral roll, it shall, subject to the provisions of this Act and Rules and orders made thereunder, correct, delete or add the entry, as the case may be :
Provided that no such correction, deletion or addition shall be made after the last date for making nominations for an election in the gram panchayat and before the completion of that election :
Provided further that no deletion or correction of any entry in respect of any person affecting his interest adversely shall be made without giving him reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him.
(9) The State Election Commission may, if it thinks it necessary so to do for the purposes of a general or bye-election, direct a special revision of the electoral roll for any territorial constituency of a gram panchayat in such manner as it may think fit :
Provided that subject to the other provisions of this Act, the electoral roll for the territorial constituency, as in force at the time of issue of any such direction, shall continue to be in force until the completion of the special revision so directed."
4. Sub-section (10) of Section 9 confers powers on the State Election Commission to make provision in respect of certain matters, viz.. the date on which the electoral roll shall come into force and its period of operation : the correction of any existing entry in electoral roll ; the correction and inclusion of name of any person in the electoral roll in so far as the provisions is not made in this regard by the Act or the Rules. Section 9A provides that except as otherwise provided by or under the Act, every person whose name is for the time being included in the electoral roll for a territorial constituency of a gram panchayat shall be entitled to vote at any election and be eligible for election, nomination or appointment to any office in that gram panchayat or the concerned nyaya panchayat.
5. In exercise of power conferred by sub-section (2) of Section 9 and Section 110 of the U. P. Panchayat Raj Act, the State Government made the U. P. Panchayat Raj (Registration of Electors) Rules, 1994, which were published on August 20. 1994 (hereinafter referred to as the Rules). Sub-rule (c) of Rule 2 defines "roll" and it means an electoral roll for a territorial constituency of a gram panchayat. Rule 3 provides that in every district, each roll should be prepared and revised by an Electoral Registration Officer, who shall be such officer of the State Government as the State Election Commission may in consultation with the State Government designate or nominate in this behalf. Rule 5 provides that the first roll should be prepared in accordance with the provisions of the Rules, Rule 8 requires that as soon as the roll for all the territorial constituencies of a gram panchayat are ready, they shall be published by making a copy thereof available for the inspection and displaying a notice in Form 1 at the office of the Block Development Officer. The Electoral Registration Officer shall by beat of drum or by amplifier or any other convenient mode give publicity in the panchayat area to the fact that the roll has been published. Rule 9 enables any person whose name is not included or whose name has been wrongly included in the roll of some other territorial constituency of the gram panchayat or whose name is struck off the rolls by reason of any disqualification, to apply in Form 2 to the Assistant Electoral Registration Officer for inclusion of his name in the roll. Rule 10 permits objection to be made against any entry in the electoral roll either at the instance of the person concerned or at the instance of a third person. Rule 11 gives a limitation of 7 days for making application or objection under Rule 9 or Rule 10 from the date of publication of the draft roll as provided under Rule 8. Rule 15 enjoins that a notice shall be served in Form 6 upon every applicant under Rule 9 or Rule 10 specifying the place and time when the application shall be heard, directing him to be present with such evidence. If any, as he may wish to adduce. Rule 16 is material and it provides that an Assistant Electoral Registration Officer shall hold a summary enquiry into every application in respect of which notice has been given under Rule 15 and shall record a decision thereon. At the hearing the person to whom such notice was issued, shall be entitled to be present and to be heard. The Assistant Electoral Registration Officer may in his discretion require any person to whom such notice has been issued to be present and may also require that the evidence tendered by any person shall be given on oath and may administer oath for the purpose. Rule 18 casts a duty on the Assistant Electoral Registration Officer to take remedial action if name of a dead person or of persons who cease to be, or are not, ordinarily resident in the area of the territorial constituency, have been included in the roll. He is also required to prepare a list of the names and other details of such persons and exhibit a notice on the notice board in his office with a copy of the list together with the notice as to the time and place at which the question of deletion of such names from the roll shall be considered and further after considering any verbal or written objections that may be preferred, decide whether all or any of the names be deleted from the rolls. Rule 19 relates to final publication of the roll and sub-rules (1) and (2) are being reproduced below :
"19. Final publication of roll.--(1) The Electoral Registration Officer shall thereafter publish the roll together with the list of amendments under Rules 15, 16. 17 and 18, by making a complete copy thereof available for inspection and displaying a notice in Form 7 at his office.
(2) On such publication the roll together with the list of amendments shall be electoral roll for the territorial constituency.
(3) ......"
6. Rule 21A provides for appeal and sub-rule (1) thereof lays down that an appeal shall lie from any decision of the Assistant Electoral Registration Officer under Rules 16, 18 or 21 to the District Magistrate. Sub-rule 4 of this Rule provides that every decision of the appellate officer shall be final, but if it reverses or modifies a decision of the Assistant Electoral Registration Officer, it shall take effect only from the date of decision of the appeal.
7. The provisions of the U. P. Panchayat Raj (Registration of Electors) Rules, 1994, show that the draft electoral roll has to be published and the Electoral Registration Officer shall by beat of drum or by amplifier or any other convenient mode shall give publicity in the panchayat area to the fact that roll has been published and that a copy thereof can be inspected free of charge at the office of the Block Development Officer. Any person whose name is entered in the roll and has objection to the inclusion of name of any other person in the roll or has objection to any particular entry, can file an application for correction of the particulars or exclusion of the names under Rule 10 within a period of 7 days from the date of publication of the roll. The application is to be heard by the Assistant Electoral Registration Officer under Rule 16 and he can delete the name of a dead person or of persons who have ceased to be, or are not, ordinarily residents of the area of the territorial constituency. Against the decision of the Assistant Electoral Registration Officer, an appeal is provided to the District Magistrate under Rule 21A. Rule 19 provides that the Electoral Roll Registration Officer shall publish the roll together with the list of amendments and on such publication the same shall be the electoral roll for the territorial constituency. The Rules, therefore, provide a complete machinery for correction of electoral roll. They also provide that on publication of the final electoral roll, the same shall be treated to be the electoral roll for the territorial constituency. Similar provision is contained in Section 9 and subsection (2) thereof provides that the electoral roll prepared in accordance with the provisions of the Act and the Rules shall be the electoral roll for the territorial constituency of the gram panchayat. The first proviso to sub-section (8) of Section 9 lays down that no correction, deletion or addition shall be made to an electoral roll after the last date for making nominations for an election in the gram panchayat and before the completion of that election, subsection (12) of Section 9 of the Act lays down in clear terms that no Civil Court shall have jurisdiction to entertain or adjudicate upon the question whether any person is or is not entitled to be registered in an electoral roll or to question the legality of any action taken by or under the authority of the State Election Commission or of any decision given by any authority or officer appointed in this behalf in respect of preparation and publication of the electoral rolls. Thus, the provisions of the Act attach finality to an electoral roll which has been prepared in accordance with Rule 19 and the first proviso to Section 8 of the Act puts an embargo on the power of the State Election Commission or any other officer or authority to make any correction, deletion or addition in the electoral roll after the last date for making of nominations for an election in the gram panchayat and before the completion of that election. This clearly shows that for the purpose of holding an election the final electoral roll as published under Rule 19 is to be treated as sacrosanct. The civil court is also debarred from examining the correctness or otherwise of the electoral roll.
8. In view of the aforesaid provision, a challenge to the correctness of electoral roll cannot be permitted to be raised after the publication of the final electoral roll. If a person feels that name of a dead person or a person who is not eligible to be included in the electoral roll has been included in the electoral roll, his remedy lies in filing an application at the opportune time for correction of the entry. Similarly, if the name of someone has not been included in the electoral roll though he is eligible for the said purpose, he ought to make an application in that regard within the prescribed period. The decision of the Assistant Electoral Registration Officer in these matters is subject to an appeal and sub-rule (4) of Rule 21A attaches finality to the order passed in appeal. The provisions of the Act and the Rules thus provide a complete safeguard against any wrong inclusion or wrong omission of name in the electoral roll. After publication of the final roll, the same is immune from any challenge at a subsequent stage. Once the process of election has begun, they can neither be challenged by means of a writ petition under Article 226 of the Constitution nor in an election petition filed under Section 12C of the U. P. Panchayat Raj Act which gives the procedure for challenging the election of a person as pradhan.
9. Ours is the biggest democracy and the second most populous country in the world and, consequently, the electoral rolls are also big containing large number of names. The authorities entrusted with the duty of preparation of electoral roll can possibly have no personal knowledge about the correctness of every entry. If the people of the area do not take appropriate steps for deletion of the name of a dead person or the name of a person who is not qualified to be entered in the electoral roll of a panchayat, the same may continue to find place till the time of the election and voting. It is practically impossible to have an absolutely accurate electoral roll. The State machinery has to spend considerable time and energy in holding an election and it also involves huge public expenditure. If the ground of error or mistake in the electoral roll is entertained, every election will be under a peril of being set aside although the authorities have conducted the election in a most fair and impartial manner following the Rules and the candidates have also conducted themselves fairly without committing even the slightest breach of the law. This will lead to great uncertainly and will not be conducive to the growth of a healthy and vibrant democracy. Therefore, after the notification for election has been issued, no writ petition should be entertained challenging the correctness of the electoral roll. The election of the returned candidate can also not be challenged on the said ground either by filing a writ petition or by means of an election petition as provided in the statute. However, if some gross procedural error has been committed in the preparation of the electoral roll, like not publishing the draft electoral roll or not giving opportunity for making an application for either deletion or addition of names, the action of the authorities in such cases will not be immune from challenge under Article 226 of the Constitution provided the same is made promptly and before the notification for holding the election is issued.
10. In Baidyanath Panjila v. Sita Ram Mahto. AIR 1970 SC 314, it was-held that reference under Section 62(1) of Representation of People. Act, 1950, to the electoral roll shall mean electoral roll in force on the last day for making nominations for the election and votes of persons added after last day for making the nominations in contravention of Section 23(3) of the said Act shall be deemed to be void and, as such, covered by Section 100 (1) (d) of the Act. In Subhash Desai v. Sharad J. Rao, AIR 1994 SC 2277, the appellant's election to the legislative assembly had been set aside by the High Court on several grounds and one of the grounds was that names of certain persons had been included in the electoral roll though the final publication had been made before making of the nominations. The High Court after declaring election of the appellant to be void, issued a direction to verify as to whether final publication of the electoral roll on 15.1.1990 with inclusion of names of electors was in accordance with law and if the said inclusion was not in accordance with the procedure prescribed by the Representation of People Act, 1950, then to exclude their votes after opening the ballot boxes and to recount the valid votes for the purpose of fresh declaration. The Apex Court set aside the said direction on the ground that the final publication of the electoral roll had been made before making of the nominations.
11. Some decisions regarding delimitation of the constituencies may be profitably noticed at this stage. In MeghraJ Kothari u.
Delimitation Commission, AIR 1967 SC 669, a notification of the Delimitation Commission, whereby a city which had been a general constituency was notified as reserved for the Scheduled Castes, was challenged on the ground that right of candidate for election to the Parliament from the said constituency had been taken away. It was held that the impugned notification was a law relating to delimitation of the constituencies or the allotment of seats to such constituencies made under Article 327 of the Constitution and that an examination of Sections 8 and 9 of the Delimitation Commission Act showed that the matters dealt with therein were not subject to the scrutiny of any Court of law. In State of U. P. v. Pradhan Sangh Kshetra Samiti, AIR 1995 SC 1512, which is a case governed by the provisions of the U. P. Panchayat Raj Act, the Apex Court after referring to the law laid down in MeghraJ Kothari (supra), observed as follows in paragraph 11 :
". ... If we read Articles 243C, 243K and 243Q in place of Article 327 and Section 2 (kk), of the Delimitation Act, 1950, it will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged or the Court could have entertained such a challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. ....."
12. A similar controversy was examined in Anugrah Narain Singh v. State of U. P.. JT 1996 (8) SC 733, wherein the elections scheduled to be held with regard to municipal corporations governed by the U. P. Municipal Corporations Adhiniyam, 1959, were challenged. With regard to the delimitation of the constituency, it was held as follows in paragraph 25 of the reports :
".....The U. P. Act of 1959, however, merely provides that the draft order of delimitation of municipal areas shall be published in the Official Gazette for objections for a period of not less than seven days. The draft order may be altered or modified after hearing the objections filed, if any. Thereupon, it shall become final. It does not lay down that such an order upon reaching finality will have the force of law and shall not be questioned in any Court of law. For this reason, it may not be possible to say that such order made under Section 32 of the U. P. Act has the force of law and is beyond challenge by virtue of Article 243ZG. But any such challenge should be made soon after the final order is published.. . . The validity of a final order published under Section 33 of the U. P. Act is beyond the ken of election court constituted under Section 61 of the said Act."
With regard to the electoral rolls, the Court observed as follows in paragraphs 26 and 28 of the reports, which are as under :
"26. Similarly, the electoral rolls have to be prepared and published under Section 39 of the U. P. Act. If there is any mistake, objections can be filed within the specified period and corrected on the basis of the objections filed, if any. A remedy by way of appeal has been provided to a person aggrieved by the inclusion, deletion or correction of the name in the electoral roll. There is no provision in the U. P. Act giving force of law to the electoral roll after its finalisation. However, Section 49 of the U. P. Act contains a bar on the jurisdiction of a civil court to entertain or adjudicate upon a question whether a person is or is not entitled to be registered in an electoral roll for a ward or to question the legality of any action taken by or under the authority of the State Election Commission in respect of preparation and publication of electoral roll or to question the legality of any action taken or of any decision taken by the Returning Officer or by any other persons appointed under this Act in connection with an election.
"28. Therefore, so far as preparation of the electoral roll is concerned, there are sufficient safeguards in the Act against any abuse or misuse of power. In view of these provisions and particularly. In view of subsection (6) of Section 39 which provides for appeals in regard to inclusion, deletion or correction of names, there is hardly any scope for a Court to intervene and correct the electoral rolls under Article 226 of the Constitution. In fact, if this is allowed to be done, every election will be indefinitely delayed and it will not be possible to comply with the mandate of the Constitution that every Municipality shall have a life-span of five years, or less, if dissolved earlier, and thereafter fresh elections will have to be held within the time specified in Clause (3) of Article 243U. Having regard to the provisions for filing objections and also the right of appeal against inclusion, deletion and correction of names and also to the constitutional authority of the Election Commission to give directions in all matters pertaining to elections, the Court should not have intervened at all on the basis of allegations as to preparation of electoral rolls."
13. The principle laid down in the case of Anugrah Narain Singh (supra) is fully applicable to the present case as well. We are, therefore, clearly of the opinion that after the publication of final electoral roll and commencement of the election process, no challenge to its correctness can be entertained by means of a writ petition under Article 226 of the Constitution. The electoral roll is sacrosanct and its correctness cannot be challenged in an election petition filed under Section 12C of the U. P. Panchayat Raj Act as well.
14. Sri Ravikant has submitted that preparation and publication of electoral rolls is not a part of the process of the election and can, therefore, be challenged in a writ petition filed under Article 226 of the Constitution. In support of his submission, he has placed reliance on Lakshmi Charan Sen and others v. A. K. M. Hassan Uzzaman and others, (1985) 4 SCC 689, (paragraphs 26 and 28) and Indrajit Barua and others v. Election Commission of India and others. (1985) 4 SCC 722. In our opinion, the principle laid down in the aforesaid cases do not have any application to the controversy in hand. In Lakashmi Charan Sen (supra), which was a case governed by Representation of People Act, it was observed that notwithstanding the fact that the roll contains errors and they have remained to be corrected, or that the appeals in respect thereof are still pending, the Returning Officer is under an obligation to publish the roll by virtue of Rule 22. It was further held that the fact that certain claims and objections are not fully disposed of, even assuming that they are filed in accordance with law, cannot arrest the process of election to the Legislature and the election is to be held on the basis of the electoral roll which is in force on the last day for making nominations. In Indrajit Barua (supra) it was observed that even unrevised electoral roll continues to be effective for election to the Parliament and other Legislatures. In paragraph 12 of the reports, it was observed :
"Preparation of electoral rolls is not a process of election. In a suitable case challenge to the electoral roll for not complying with the requirements of the law may be entertained subject to the rule indicated in Punnuswami case. But the election of a candidate is not open to challenge on the score of the electoral roll being defective."
15. The aforesaid observations do not at all support the case of the petitioner. On the contrary, they support the view which has been taken by us. The learned counsel for the petitioner has also referred to another decision of the Apex Court in Chief Commissioner of Ajmer v. Radhey Shyam Dani, AIR 1957 SC 304. This case relates to election to Ajmer Municipal Committee which was governed by Ajmer Merwara Municipalities Regulation 1925, which has not been produced before us. The facts of the case show that the writ petition had been filed challenging the order of the Electoral Registration Officer by which an application for rectification of the mistake in parliamentary electoral roll had been rejected. In a writ petition challenging the said order the Judicial Commissioner, Ajmer, restrained the District Magistrate from holding the elections and poll to the Ajmer Municipality Committee. The question of election being challenged on the ground of some error or mistake in the electoral roll, therefore, did not arise for consideration in the said case. We fail to see as to how this decision can be of any assistance to the petitioner.
16. For the reasons mentioned above, we find no merit in the writ petition which is hereby dismissed summarily at the admission stage.