Bombay High Court
Shri Savio O. Fernandes And Another vs State Election Commissioner And Others on 22 February, 1996
Equivalent citations: AIR1996BOM343, (1996)98BOMLR534, AIR 1996 BOMBAY 343, (1996) 1 GOALT 110 (1996) 4 ALLMR 409 (BOM), (1996) 4 ALLMR 409 (BOM)
Author: T.K. Chandrashekhara Das
Bench: T.K. Chandrashekhara Das
ORDER Shah, J.
1. These four writ petitions relate to the election of Panaji Municipal Council. They involve a common question. They have been heard together and shall be disposed of by this common judgment.
2. On December 20, 1995, the State Election Commissioner of Goa issued an order under Section 11 of the Goa Municipalities Act (for short "the Act") and notified thereby that the electoral roll of the Goa Legislative Assembly prepared under the provisions of the Representation of the People Act, 1950, and for the time being in force, as on that day, of December 20, 1995, for such constituency of the Assembly or any part thereof as is included in the municipal area, shall be divided and authenticated by Mamlatdar of Tiswadi taluka in which Panaji Municipal Council is situated into different sections corresponding to the different wards in the municipal area as fixed under Section 10 of the Act.
The State Election Commissioner on December 29, 1995 published the calendar of events of the election programme under which the last date for filing the nominations for the election was fixed as February 3, 1996. Under that calendar of events, the date for taking the poll was fixed as February 25, 1996.
3. There are two petitioners in Writ Petition No. 26 of 1996. On January 17, 1996, they approached the Electoral Registration Officer, Panaji at Goa with a request in the prescribed form for inclusion of their names in the electoral rolls as their names did not appear in the electoral rolls, though their names were there in the earlier electoral rolls prepared in the year 1993. As the request did not meet any positive result, the petitioners of petition No. 26 preferred an appeal under Section 24 of the Representation of the People Act, 1950 (for short "1950 Act") to the Chief Electoral Officer. On January 25, 1996, the Chief Electoral Officer allowed the petitioners appeal and directed the inclusion of their names in the list of supplement of 1996 for Panji Assembly Constituency as per sub section (3) of Section 23 of the 1950 Act. Consequent thereupon, the petitioners approached the Returning Officer i.e. Mamlatdar of Tiswadi for inclusion of their names in the voters lists in the relevant ward. However, the Returning Officer stated that it was not possible to include the petitioners name in the voters lists. ,
4. According to the petitioners' petition No. 26 of 1996, they wanted to contest and vote at the ensuing election as they have a right to contest and vote, and on account of the illegal approach of the authority, even in face of their success in getting their names in the electoral roll included, their names are not included in the voters list. It is, therefore, that they have filed the present petition No. 26 of 1996, firstly, for a writ of mandamus or any other appropriate writ, order or direction cammanding the respondents to include their names in the municipal voters list for the Panaji Municipal Council Elections to be held on February 25, 1996, and on the basis thereof, to permit the petitioners to contest/ vote at the said election.
In the petition, the petitioners have challenged the constitutional validity of Section 11 of the Act on the ground that it does not provide any corrective machinery in the voters list. They have also prayed for a mandamus directing and commanding the . State Election Commissioner to withdraw the notification dated December 20, 1995 or in the alternative an order striking down that' notification.
5. In writ petition No. 27 of 1996, there are five petitioners. Their names are not included in the voters list. Their case is that their names were included in the earlier electoral rolls which were prepared in the year 1993 and in the subsequent electoral rolls, their names have been omitted. That is their first contention. Secondly, according to them, as many as about 500 persons, whose names and particulars they have given, were also the voters at the earlier elections. Some of them had been granted identity cards. Some others of them had been photographed for the purpose of preparing their identity cards. However, in the voters lists prepared for the present Municipal elections, the names of the petitioners and those five hundred people have been omitted. Therefore, the petitioners in that petition while pleading their cause, also plead by way of public interest litigation the cause of some five hundred persons whose names and particulars, as said above, have been given by them. In that petition also, almost similar reliefs have been prayed as have been prayed in the petition No. 26 of 1996.
6. In writ petition No. 38 of 1996, we have only one petitioner. According to him, his name appeared in the earlier electoral rolls and the earlier voters lists but has been omitted in the latest electoral rolls and the latest voters lists. He, therefore, approached the concerned authorities and now his name has been entered in the Assembly electoral rolls prepared with reference to the qualifying date of January 1, 1996. However, his contention is that the authorities have refused to include his name in the voters list for the election for Panaji Municipal Council, and hence, he has filed this petition No. 38 of 1996.
7. In writ petition No.44 of 1996, there are 85 petitioners. The petitioner No. 1 has no personal grievance of his own for his name does appear in the relevant voters list. His nomination paper has been accepted. However, he espouses the cause of 117 others whose names, according to him, did appear in the earlier assembly electoral rolls but have been omitted in the latest electoral rolls and also have been omitted in the voters lists. Out of those 117, some 84 have joined as petitioners in petition No. 44 of 1996.
8. The State Election Commissioner through its Secretary has filed his return in petition No. 27 of 1996 and had requested that the same be treated as his return against all four writ petitions. In that return, the factual basis averred in these petitions have not been seriously disputed. It is not in dispute that the names of the present petitioners in these four petitions did appear in the legislative electoral rolls that were prepared in the year 1993. It is also not disputed that the names of all petitioners except petitioner No. 1 in writ petition No. 44 of 1996 do not appear in the voters list on the basis of which the election to be held on February 25, 1996, is going to be held. However, the State Election Commissioner has challenged the legal propositions which has been canvassed by the petitioners in these petitions. In the return that has been filed by the Secretary to State Election Commissioner, it has been pointed out that the elections to Goa State Legislative Assembly were held in November, 1994 on the basis of the electoral rolls prepared with reference to January 1, 1994. Thereafter, as per the directions of Election Commission of India, intensive revision of the electoral rolls with reference to January 1, 1995 was undertaken as per the programme set out in the circular dated May 16, 1995. A copy thereof has been annexed to the affidavit-in-reply as Exhibit R1. As per the programme, the preliminary work relating to house to house numbering, preparation of newly approved polling station wise maps, appointment of enumerators and supervisors and imparting them adequate training, printing of electoral cards and connected forms, etc. was to be completed by July 27, 1995. House to house enumeration was to be conducted between July 27, 1995 and August 26, 1995. The preparation of the manuscript and the printing of the draft rolls was to be completed by October 3, 1995. The draft rolls were to be published on October 4, 1995. The claims and objections were to be filed between October 4, 1995 and October 26, 1995. Those claims and objections were to be disposed of by November 16, 1995. The preparation and printing of supplements were to be completed by November 30, 1995 and the final rolls were to be published on December 1, 1995.
According to the State Government Commissioner, in view of the exercise carried out by the Election Commission of India pursuant to the aforesaid programme, the electoral rolls of Goa Legislative Assembly in force on December 20, 1995 were the one published on December 1, 1995 with reference to January 3, 1995 as the qualifying date.
The State Election Commissioner has further pointed out that thereafter there was a subsequent Summary Revision of the electoral rolls as was directed by the Election Commission of India for all the parliamentary and Assembly constituencies of Goa State with reference to January 1, 1996 as a qualifying date and that was carried out as per the circular dated December 20, 1995. A copy of the programme of that summary revision has been annexed to the affidavit-in-reply as Exhibit R2.
9. We may mention here that there is a co-incidence. The Election Commission of India on December 20, 1995 issued a circular for Summary Revision of the electoral rolls, and on that very day, the State Election Commissioner issued the order under Section 11(1) of the Act. We may mention here that in an earlier petition filed in this Court, there were orders by which the State Election Commissioner was under obligation to issue the orders on December 20, 1995 under Section 11(1) of the Act. These facts are not in dispute.
10. The State Election Commissioner has submitted that there was sufficient opportunity available to the petitioners, as also to the other persons whose cause has been sought to be espoused, to file their claims (or objections against the omissions of their names in the electoral rolls) during the revision process that was undergone between the period commencing from October 4, 1995 and October 26, 1995 which they failed to avail, and therefore, it is not legally open to them at this stage now to make the grievance of the fact that their names do not appear in the voters lists. It has also been contended that such of the petitioners as have made their claims for inclusion of their names in the electoral rolls, subsequent to October 26, 1995 and on or before January 4, 1996, their names would be included in the electoral rolls with reference to January 1, 1996, and further the provisions of Section 23 of the Representation of the People Act would also be available to them.
11. On behalf of the petitioners, it was firstly submitted that Section 11 of the Act is ultra vires for it does not provide any corrective machinery in the voters lists. It was submitted that under the provisions of the 1950 Act, Sections 22 and 23 of that Act provide for corrections and inclusion, etc. in the entries in the electoral rolls prepared for the Parliamentary and Assembly Constituencies and there a detailed procedure his prescribed. However, in Section 11 of the Act, no such procedure has been prescribed and that section does not contemplate to give an opportunity to a person to lay a claim to have his name included in the voters list or to raise an objection to a name which has wrongly been included therein, and therefore, Section 11 of the Act is ultra vires, bad in law and should be struck down: Alternatively, it was contended that the procedure that is prescribed in Sections 22 and 23 of the 1950 Act should be read into Section 11 of the Act and it should be read therein that the State Election Commissioner is bound to give an opportunity to the persons to lay claims and objections to the entries in the voters lists.
12. It was nextly contended that the names of the petitioners in these four petitions did appear in the earlier electoral roll and voters list and they have been wrongly omitted in the present voters list for no fault) on the part of the petitioners, and therefore, the voters lists, on the basis of which the elections are going to be held, should be held to be bad in law, and either the names of the petitioners and those others whose cause the petitioner espouse, should be included in the voters list and they should be given a right to vote and a right to contest or else, those voters lists should be declared bad in law and the proposed election on that basis should be stopped.
13. It was sought to be argued on behalf of the petitioners that the order dated December 20, 1995 issued by the State Election Commissioner under sub-section (1) of Section 11 of the Act refers to the electoral roll of the assembly prepared under the provisions of the 1950 Act and for the time being in force as on December 20, 1995. According to the petitioners, on December 20, 1995, in so far as the assembly electoral toll is concerned, it would be only a draft roll and not a final roll, therefore, also the date December 20, 1995 would be bad in law for the State Election Commissioner could not have frozen the electoral roll which was only a draft roll and not a final roll.
14. Mr. Dessai, the learned counsel for the petitioners in writ petition No. 44 of 1996 also submitted that a right to be included in the electoral roll is a constitutional right guaranteed under Article 326 of the Constitution of India and the names of the petitioner Nos. 2 to 85 and 33 others were undisputedly there in the earlier electoral roll, therefore, those petitioners and those 33 others would never have reason to suspect that in the latest assembly electoral rolls and the voters lists, their names would be omitted. Therefore, the mere fact that those persons have not approached the concerned authority for having their names included in the latest assembly electoral rolls should not deprive them of their constitutional right under Article 326 of the Constitution of India to have their names included in the assembly election electoral roll and consequently in the voters list.
15. Mr. Dessai also contended that the names of his clients and some 33 others were omitted without following the procedure"
contemplated by Section 22 of the 1950 Act, and therefore, the omission is bad in law, and consequently, the fact that they have not approached the concerned authorities in time, to have their names re-included in the assembly election electoral rolls, should not come in their way in now praying for their names being included in the latest electoral rolls and the voters lists.
16. The learned Advocate General, on behalf of the State Election Commissioner, has opposed these petitions.
17. According to the learned Advocate General, the corrective machinery, the grievance about the absence of which is made by the petitioners, does exist and it has been gone into as has been set out in the affidavit in reply, at the time of infensive revision of the assembly electoral roll and such a machinery having been contemplated under the 1950 Act, and having been followed, it is not necessary to provide for such a machinery a second time over again in Section 11 of the Act. Therefore, Section 11 of the Act could not be faulted on account of the absence of any such corrective machinery. According to the learned Advocate General, therefore, it is not even necessary to read into Section 11 all those provisions contained in Sections 22 and 23 of the 1950 Act. He submitted that the scheme of 1950 Act and the rules framed thereunder clearly envisage a continuous process of revision an-J preparation afresh of the electoral rolls and there is, at no point of time, a position when there is no final electoral roll in existence. The adoption by the State Election Commissioner of the assembly electoral roll as it existed, and as it was in force on December 20, 1995 could in no manner be faulted. He submitted that as on December 20, 1995, there was in existence a final and operative assembly electoral roll which has been adopted by the State Election Commissioner by an order dated December 20, 1995, it is wholly incorrect for the petitioners to argue that on December 20, 1995, there would only be a draft electoral roll. He also submitted that Article 326 of the Constitution speaks about the elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage, and prescribes certain qualifications which would entitle a person to be registered as a voter at such election. However, that Article cannot be extended so as to read that the State Election Commissioner cannot fix a date with reference to which the assembly electoral roll may be frozen for the purpose of Municipal election. He submitted that if the petitioners were aggrieved by omissions of their names in the latest assembly electoral rolls, they had a remedy with them. They should have approached the concerned authorities with their claims and objections between October 4, 1995 and October 26, 1995 when the intensive revision of the electoral roll was carried out as per the programme appearing in the notification Exhibit R1 to the affidavit in reply. That programme shows that house to house enumeration of the voters was done, draft rolls were published, objections and claims were invited and everybody who wanted to have his name included in the final electoral roll, was given sufficient opportunity to put his claim and objection before the concerned authority and that having not been availed, now the petitioners cannot make a grievance that their names have been illegally omitted from the final electoral roll without following the procedure prescribed by Section 22 of the 1950 Act.
18. It was submitted by the learned Advocate General that a right to vote or right to contest an election is neither a constitutional right nor a common law right. It is only a statutory right, and therefore, if a person's name is wrongly omitted from the voters list, his remedy has to be found only in the statute and not outside the statute. Section 11 does not provide any such machinery as to lay a claim to have one's included in the voters list. Therefore, in the submission of the learned Advocate General, the submissions of Mr. Dessai to the contrary that a right to have one's name included in the voters list being a constitutional right, that right could not be infringed without giving sufficient opportunity of being heard, is not a correct argument.
19. A large number of authorities were cited at the bar during the course of hearing of these petitions before us. However, we would say that it was not seriously in dispute that the writ petitions of the present type would not be barred on the broad principle that the petitioners can avail of a remedy of election petition after the results are declared. It is therefore not necessary for us to go to the judgment in the case of N. P. Ponnuswami v. The Returning Officer, Namakkal, and some other judgments which follow that decision.
20. On behalf of the petitioners, strong reliance was placed on the decision in the case of The Chief Commissioner of Ajmer v. Radhey Shyam Dani, . In that case, the Chief Commissioner on August 8, 1955 had notified an election programme and had also authenticated and published an electoral roll: In that electoral roll, the respondent's name was incorrectly described inasmuch as his father's name which was Chittar Mal was erroneously described as Ratan Lal. On August 10, 1955, he applied for correction of his father's name in the Prcliamentary Electoral Roll. On August 16, 1955, he filed his nomination paper which was however rejected on August 17, 1955 by the Returning Officer who stated that the respondent was not one of the electors according to the roll. The respondent's application for rectification of the mistake in the Parliamentary Electoral Roll was also rejected on August 18, 1955 by the Electoral Registration Officer on the ground that the roll of the municipal elections had been finally published on August 18, 1955, and therefore no correction could be made. The respondent thereupon filed a writ petition. The learned Judicial Commissioner at Ajmer upheld the contention of the respondent that Rule 7 of the Election Rules which was applicable was not in consonance with and was in contradiction to Section sub-sec. (2) of the Ajmer Merwara Municipalities Regulation 1925 and that it was in excess of the rule making power conferred upon the concerned authorities. Therefore, the elections that were proposed to be held on September 9, 1955 were not lawful. Against that decision of the Judicial Commissioner, the matter was carried to the Supreme Court. Their Lordships of the Supreme Court considered the provisions of Section 30 of the Ajmer Merwara Municipalities Regulation, 1925 as also the other relevant sections and the relevant rules and upheld the view taken by the learned Judicial Commissioner.
In para 12 of the report, their Lordships have posited as follows (at page 308) :
"It is, of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned. It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective."
21. On behalf of the petitioners, as said above great stress was laid on this judgment. It was argued that while the State Election Commissioner had power to adopt the assembly electoral roll for the purpose of election to the municipalities, he was required to follow the corrective procedure and give to the persons concerned an opportunity to have their names included in the final voters list if they have been wrongly omitted and inasmuch as that is not done, Section 11 of the Act would be ultra vires and would be contrary to the spirit of law as has been laid down in para 12 of the judgment of the Supreme Court in the case just now referred to.
22. On behalf of the petitioners, the decision in the case of Dhondba Adku v. Civil Judge, Junior Division Hinganghat was also relied upon that was a case of Panchayat election. Tncre the question before the High Court was whether the election petition would be maintainable. It was contended on behalf of the election Petitioner that as no machinery was provided for making correction in the voters list, the election Petitioner was entitled to challenge the election on that ground also. The Division Bench of the Bombay High Court in that case noticed relevant provisions of the Bombay Village Panchayats Act, 1958 and found that of course, there was no corrective machinery to correct the voters list for Section 12(1) of the Bombay Village Panchayats Act, 1958 prescribed that the electoral roll of the Maharashtra Legislative Assembly prepared under the provisions of the Representation of the People Act 1950 as in force on such date as the State Government may determine by notification shall be the list of voters for such ward or village. Therefore, it was found that it was assembly roll which was to be treated as roll for Panchayat election without there being any corrective machinery for the voters list. However, the Division Bench in that judgment resorted to the provisions of Bombay General Clauses Act and held that as the Panchayats Act had conferred the power on the designated officer to prepare and maintain the voters list, as required, it must necessarily include the power to make necessary corrections which are within the scope of its authority. In paragraph 11 of the report of that case, the Division Bench stated as follows at Page 234 :
"Though, therefore, there is no specific provision made by the State Government by the rules for getting mistakes in the voters lists rectified, still in our view it would be open to the petitioners to have the list corrected. If no steps are taken to have the same corrected, then for the purposes of election, under subsection (3) of Section 13 the list is conclusive evidence and cannot be challenged."
23. On behalf of the respondents, the decision in the case of Jyoti Basu v. Debi Ghosal, relied upon. In paragraph 8 of that judgment, this is what their Lordships of the Supreme Court have posited at Page 986 :
"A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election Petition is not an action at common law, nor in enquity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies.
24. On behalf of the respondents, a great stress was laid on the observations of the Supreme Court in the decision in the case of The Election Commission of India v. Shivaji, . In the last sub-paragraph of paragraph 6 of the report in that case, this is what their Lordships have posited :
"The High Court failed to recall to its mind that it was not its concern under Article 226 of the Constitution to rectify any error even if there was an error committed in the process of election at any stage prior to the declaration of the result of the election notwithstanding the fact that the error in question related to a mandatory provision of the statute relating to the conduct of the election."
25. In Lakhshmi Charan Sen v._A. K. M. Hassan Uzzaman, reported in AIR 1985 Supreme Court 1233, their Lordships of the Supreme Court have considered the scheme of Sections 21 and 23 of the 1950 Act and the relevant rules under the Registration of Electors Rules, 1960. Their Lordships explained law based on those sections from paragraph 16 to paragraph 20 as follows at Page 1241 :
"16. The fact that the revision of electoral rolls, either intensive or summary, is undertaken by the Election Commission does not have the effect of putting the electoral roll last published in cold storage. The revision of electoral rolls is a continuous process which has to go on, elections or no elections. For example, the revision of electors rolls has to be undertaken under Section 21 of the Act of 1950, whether or not an election is impending. Sub-section (1) of Section 21 provides that the "electoral roll for each constituency shall be prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under this Act." Sub-section (2) of Section 21 provides for the revision of the electoral roll prepared under sub-section (1). The proviso, which is important, says that if the electoral roll "is not revised as aforesaid", the validity or continued operation of the "said" electoral roll shall not be affected. The controversy whether the proviso governs clause (b) of Section 21(2) only or whether, it applies to clause (a) of that Section also is futile, though it may be interesting from the point of view of a text-book writer on the 'Interpretation of Statuties'. The crux of the matter is that if an electoral roll is not revised, its validity and continued operation remain unaffected, at least in a class of cases. That exemplifies an important principle which applies in the case of electoral rolls.
17. Section 21(3) of the Act of 1950 confers upon the Election Commission the power to direct a special revision of the electoral roll. The proviso to that sub-section also says that until the completion of the special revision so directed, the electoral roll for the time being in force shall continue to be in force. That proves the point that Election Laws abhor a vacuum. Insofar as the electoral rolls are concerned, there is never a moment in the life of a political community when some electoral roll or the other is not in force.
18. Section 23(3) of the Act of 1950 also points in the same direction. Under that provision, no amendment, transposition or deletion of an entry can be made under Section 22 and no direction for the inclusion of a name in the electoral roll of a constituency car, be given, after the last date for making nomination for an election in the particular constituency. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations. If that were not so, the easiest expedient which could be resorted to for the purpose of postponing an election to the legislature would be to file complaints and objections, omnibus or otherwise, which would take days and months to decide. It is not suggested that claims and objections filed in the prescribed form should not be decided promptly and in accordance with law. But, the important point which must be borne in mind is that whether or not a revision of an electoral roll is undertaken and, if undertaken, whether or not it is completed, the electorat roll for the time being in force must hold the filed. Elections cannot be postponed for the reason that certain claims and objections have still remained to be disposed of. Then, claimants and objectors could even evade the acceptance of notices and thereby postpone indefinitely the decision thereon. The holding of elections to the legislatures, which is a constitutional mandate, cannot be made to depend upon the volition of interested parties.
19. According to sub-rule (3) of Rule 23 of the Registration of Electors Rules," 1960, 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 22". Rule 22 imposes upon the Registration Officer the obligation to publish the electoral roll which, together with the list of amendments, becomes the electoral roll of the constitutency. Thus, the fact that an appeal is pending under Rule 23(1) against the decision of a Registration Officer under Rules 20, 21 or 21A does not constitute an impediment to the publication of the roll and to the roll, upon such publication, coming into force, Rule 20 provides for inquiry into claims and objections; Rule 21 provides for inclusion of names which are left out of the roll owing to inadvertence or error; while, Rule 21A provides for the deletion of names of dead persons and of persons who cease to be, or are, not ordinary residents of the particular constitutency. Notwithstanding the fact that the roll contains these errors and they have remained to be corrected, or that the appeals in respect thereof are still pending, the Registration Officer is under an obligation to publish the roll by virtue of Rule 22.
20. As a result of this discussion, it must follow that the fact that certain claims and objections are not finally disposed of, even assuming that they are filed in accordance with law, cannot arrest the process of election to the legislature. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations."
Then their Lordships have, in paragraph 28 of the report in the case of Lakshmi Charan, reproduced the final order that their Lordships had earlier passed, and there, we find the following clear proposition, as proposition of law, laid down.
"Secondly, though the High Court did not lack the jurisdiction to entertain the Writ Petition and to issue appropriate directions therein, no High Court in the exercise of its powers under Article 226 of the Constitution should pass any orders, interim or otherwise, which has the tendency or effect of postponing an election, which is reasonably "imminent and in relation to which its writ jurisdiction is invoked. The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Court's writ jurisdiction. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefinitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution. India is an oasis of democracy, a fact of contemporary history which demands of the Courts the use of wise statesmanship in the exercise of their extraordinary powers under the Constitution. The High Courts must observe a self-imposed limitation on their power to act under Article 226, by refusing to pass orders or give directions which will inevitably result in an indefinite postponement of elections to legislative bodies, which are the very essence of the democratic foundation and functioning of our Constitution. That limitation ought to be observed irrespective of the fact whether the preparation and publication of electoral rolls are a part of the process of 'election' within the meaning of Article 329(b) of the Constitution."
26. The proposition, as laid down by their Lordships of the Supreme Court in Lakshmi Charan Sen's case, which we have reproduced hereinabove, has been followed by their Lordships in another case i.e. the case or Inderjit_Barua v. Election Commission of India, , as could be seen from the fact that in that report in paragraph 8, a part of the aforesaid observations have been, with approval, quoted.
27. The learned Advocate General for the Respondents, heavily relied upon the decision in the case of State of Karnataka v. G. Nagappa, . There, their Lordships of the Supreme Court were concerned with the Section 14 of the Karnataka Municipalities Act. That Section 14 of the Karnataka Municipalities Act, in so far as is relevant, has been quoted in paragraph 8 of the report in that judgment. According to the learned Advocate General, Section 14 of the Karnataka Municipalities Act with which their Lordships of the Supreme Court were concerned, an essence, is almost similar to Section 11 of the Act with which we are concerned in the present case, and therefore, this judgment should apply to the facts of the present case on all fours. Section 14 of the Karnataka Municipalities Act, in so far as is relevant, reads as follows :
"(1) The electoral roll of the Mysore Legislative Assembly for the time being in force for such part of the constituency of the Assembly as is included in a division of municipality shall, for the purpose of this Act, be deemed to be the list of voters for such division.
(2) The officer designated by the Deputy Commissioner in this behalf in respect of a municipality shall maintain a list of voters for each division of such municipality .....
(3) Every person whose name is in the list of voters referred to in sub-section (1) shall, unless disqualified under any law for the time being in force, be qualified to vote, at the election of a member for the division to which such list pertains."
28. In that case, the report of the Returning Officer after physical cerification showed that certain persons residing in one area were shown to be voters in other area and vice versa. Basing itself on the report the State Government cancelled the calendar of events published by the Returning Officer for holding the elections. In that context, while analysing Section 14 of the Karnataka Municipalities Act, their Lordships of the Supreme Court in paragraph 9 of the report observed that a plain reading of sub-section (1) of Section 14 would show that the electoral roll for the territorial area comprised in a division was to be deemed to be the list of voters for such divisions. The designated officer was merely to perform the operation of 'scissors and paste' cut out those portions of the electoral roll which related to the territorial area included in the division and paste them together so as to form the list of voters for the division. There was no seperate qualification laid down in the Act for being placed in the list of voters for a division as was the case in the Chief Commissioner, Ajmer v. Radhey Shyam Dani, .
Elsewhere in paragraph 9 of the report distinguishing the facts, their Lordships said as follows :
"But, here no other qualification is required : the mere fact of a person being in the Electoral Roll for the territorial area comprised in a division is sufficient to include him in the list of voters for such division. What is required by Section 14(1) is that the list of voters of a division should correspond ipsissima verba with the Electoral Roll for the territorial area included in the division. If there is any mistake in the Electoral Roll, in that some voters residing in one area or house number are shown as residing in another, it cannot be corrected by the Returning Officer while preparing the list of voters for each division. The Returning Officer has to take the Electoral Roll for the territorial area of the division as it is, with whatever mistakes there may be in it, and that would be the list of voters for the division. The only way in which the mistakes, if any, either in the names of the voters or in their addresses, including house numbers in which they reside, can be corrected is by applying for rectification of the electoral Roll under Section 22 of the Representation of the People Act, 1950. So long as such rectification is not made, the entries in the Electoral Roll would stand and they would necessarily be reflected in the list of voters for the division. But they would not constitute mistakes, so far as the preparation of the list of voters for the division is concerned. It is only if the list of voterts for the division does not correspond with the Electoral Roll for the territorial area comprised in the division, in the sense that voters shown in the Electoral Roll as residing in the territorial area of the division are omitted to be included in the list of voters, or voters shown in the Electoral Roll as residing in the territorial area of another division are included in the list of voters, that it can be said that the list of voters is defective and not in accordance with the provisions of the Act."
29. The learned Advocate General very heavily relied upon the aforesaid judgment in the case of State of Karnataka v. G. Nagappa and he submitted that, in that judgment, their Lordships have considered the case in and has distinguished it on the ground that in the Ajmer Merwara Municipalities Regulation, 1925, there was subsection (2) of Section 30 which made all the difference. In the Karnataka Statute as also in the Act with which we are concerned, there was no similar provision. The assemly electoral roll had to be adopted ipsissima verba for making the voters lists, and even if, in the assembly electoral roll, certain names had been omitted, and consequently, those names did not appear in the voters list, it could not be said that there is any mistake and the only remedy to the present petitioners, in the submission of the learned Advocate General, would be to apply for rectification of the assembly roll under Sections 22 and 23 of the 1950 Act, and that having not been done within time, these petitions should fail.
30. Some other judgments were also cited at the bar by the learned counsel for both sides before us. However in the following view of the matter which we are inclined to take, it is not necessary for us to refer to all those judgments.
31. Undisputedly, the names of the Petitioners did appear in the earlier assembly rolls. Again, undisputedly, their names except the name of the Petitioner No. I in Writ Petition No. 44 of 1996 do not appear in the latest assembly roll, and their names also do not appear in the voters list. It is, therefore, that they have moved these petitions. The question is whether they should be granted relief as prayed or otherwise.
32. Having considered the arguments of the learned counsel for both the sides and having gone through the judgments and detail provisions of law to which our attention has been invited, our answer to the aforesaid question is in the negative. True, in , their Lordships have undoubledly emphasised the need to have the proper electoral rolls for the purpose of an election, and in that context, their Lordships have also emphasised the need for a corrective machinery which would enable the authorities to make corrections in the voters lists. However, that proposition, proceeded upon the wordings of Section 30(2) of the Ajmer Merwara Municipalities Regulation, 1925. Sub-section (2) of Section 30 of that Regulation, as it stood at the relevant time, said that every person who would be entitled under Representation of the People Act, 1950, to be registered in the electoral roll for a parliamentary Constituency if that constituency had been co-extensive with the municipality and whose name is registered in the electoral roll for the parliamentary constituency comprising the Municipality shall be entitled to be enrolled as an elector of the Municipality. Their Lordships have analysed the provision and said that the provision contained twin requirements. The first was that the person concerned should have been entitled under the Representation of the People Act, 1950 to be registered in the electoral roll for a Parliamentary Constituency and the second was that his name should have been registered in such electoral rolls. If these twin requirements were satisfied only then the person would be entitled to be enrolled as an elector of the Municipality. Their Lordships have said that so far as the second requirement, that is, his name should be registered in the electoral roll for the parliamentary Constituency is concerned, it could be physically verified from the electoral roll. However, the other requirement viz. that the person should be entitled under the Representation of the People Act, 1950 to be registered in the electoral roll for a Parliamentary Constituency, was a fact which required scrutiny and that scrutiny was required to be carried out by the concerned authority before deciding whether the person's name should be enrolled as an elector of the Municipality.
33. In the case before us, there is no similar provision. In the case before the Supreme Court in , in Section 14 of the Karnataka Municipalities Act, there was also no similar provision. Therefore, in our opinion, the learned Advocate General is quite right in submitting that, not the decision in the case of but the decision in the case of would apply to the facts of the present case on all fours. As we see Section 11 of the Act with which we are concerned, and compare that section with Section 14 of the Karnataka Municipalities Act with which their Lordships of the Supreme Court were concerned in , we are more than convinced that essentially the two sections are almost similar. Ofcourse, the sections, are not ipsissima verba but in essence and substance they are similar. Section 14(1) of the Karnataka Municipalities Act which says that that electorate of the Mysore Legislative Assembly for the time being in force for such part of the Constituency of the assembly as is included in the division of a Municipality shall, for the purpose of that Act, be deemed to be the list of voters for such division. Similar is the provision of Section 11(1) of the Act. It is provided there that the electoral roll of the Goa Legislative Assembly prepared under the provisions of the Representation of the People Act, 1950, and for the time being in force, on such date, as the State Election Commissioner may, by general or special order, notify in this behalf (being the date not earlier than one month from such notification) for such Constituency of the Assembly or any part thereof as is included in the the Municipal area shall be divided into different sections corresponding to the different wards in the municipal area; and a printed copy of each section of the roll so divided and authenticated by such officer shall be the list of voters for each ward. The ward lists shall collectively be deemed to be the municipal voter's list.
34. Thus, though Section 11(1) of the Act, with which we are concerned, is slightly differently worded, in essence the provision contained therein is almost the same as the one to be found in Section 14(1) of the Karnataka Municipalities Act. Section 14(2) of the Karnataka Municipalities Act is almost similar to Section 11(2) of the Act with which we are concerned. Sub-section (3) of Section 14 of the Karnataka Municipalities Act in substance correspond to the first part of Section 12(1) of the Act with which we are concerned.
We may also notice here that Section 12(2) of the Act, with which we are concerned, provides that the list of voters maintained under the last preceding section shall be conclusive evidence for the purpose of determining under that section whether a person is qualified or is not qualified to vote, as the case may be, at any election.
35. Thus, sub-section (2) of Section 12 of the Act makes the voters list maintained under Section 11 of the Act to be the conclusive evidence for the purpose of determining whether a person is qualified or is not qualified to vote. As indicated hereinabove, some other provisions of Section 11 of the Act are similar to those to be found in Section 14 of the Karnataka Municipalities Act. In our opinion, therefore, the judgment in should govern our decision. That judgment in terms lays down that if there is any mistake in the electoral roll, in that some voters residing in one area or house number are shown as residing in another, it cannot be corrected while preparing the list of voters for each division. The Returning Officer has to take the electoral roll for the territorial area of the division as it is with whatever mistakes there may be in it, and that would be the list of voters for the division. The only way in which the mistakes, if any, either in the names of the voters or in their addresses including house numbers in which they reside, can be corrected is by applying for rectification under the provisions of Section 22 of the Representation of People Act, 1950. So long as such rectification is not made, the entries in the electoral roll would stand and they would necessarily be reflected in the list of voters for the division. But they would not constitute the mistakes so far as the preparation of the list of voters for the division is concerned.
36. Thus, applying the aforesaid principle to the facts of our case, it has got to be said that the only remedy for the present petitioners was to approach the concerned authority under the 1950 Act when the intensive revision of the electoral roll was undertaken, as pointed out in the affidavit-in-reply and documents annexed thereto.
37. The contention that as Section 11 of the Act does not contain any corrective machinery, that provision is ultra vires, cannot be accepted. The reason is that it would not be incumbent upon any legislature to provide such machinery twice over again. Under the provisions of the 1950 Act, such machinery has been provided in Sections 22 and 23 of the Act. After following that machinery, an electoral roll was finalised, and such finalised electoral roll formed the basis of voters list prepared by the authorities who are in charge of the conduct of the Municipal elections. The fact that Section 11 of the Act does not provide for a machinery for correcting the voters list will not render that section ultra vires. What Section 11 contemplates is that the electoral roll for the legislative Assembly for the time being in force on such date as the State Election Commissioner may by general or special order notify in that behalf shall form the basis for preparing a document which is to be deemed to be Municipal voters list. For converting the legislative Assembly electoral Roll into a voters list for the Municipal election, the only operation to be performed is "scissors and paste". Now as is clear from the facts and provisions of law, before the legislative Assembly Roll is finalised, it has to pass through a corrective procedure. In the present case as the affidavit-in-reply shows such corrective procedure has been followed. Draft roll was prepared, objections and claims were invited, and thereafter, the draft roll was finalised by notification dated 1st December, 1995. The State Election Commissioner, by his order dated December 20, 1995, has taken that final Assembly Roll as the basis for preparing the voters list for conducting the elections to the Municipal Council. Therefore, neither Section 11 of the Act nor the voters list, on the basis of which the elections are going to be held could be faulted.
38. We have hereinabove referred to AIR 1985 SC 1233 the judgment in the case of Lakshmi Charan Sen which clearly points out that the revision of the electoral roll is a continuous process which has to go on elections or no elections, and there is always in existence a final electoral roll which would govern the field. In the present case when the State Election Commissioner has passed the order on December 20, 1995, the final electoral roll, as was notified on December 1, 1995, held the field and the notification dated 20th December, 1995 is obviously with reference to that electoral roll which was final roll.
39. Once again, the decision in the case of Lakshmi Charan Sen clearly posits that though the High Court does not lack the jurisdiction to entertain the writ petition and to issue appropriate directions therein, no High Court in the exercise of its power under Article 226 of the Constitution should pass any orders, interim or otherwise, which has the tendency or effect of postponing an election, which is reasonably imminent and in relation to which its writ jurisdiction is invoked. In the present case, the poll in scheduled for 25th February 1996, and acceding to the request of the petitioners, if we were to interfere in any manner with that poll, the same will have to be postponed for a long period. Such a situation should not be allowed to be created by exercising our writ jurisdiction under Article 226 of the Constitution, especially, when it has been pointed out to us that the corrective procedure had been undertaken before the final Legislative Assembly Roll was published on December I, 1995, and none of the present petitioners ever approached the concerned authority with any claim or objection before the prescribed date. It is obvious to us that if any of the petitioners had approached the concerned authorities with a claim or objection before the prescribed date, his grievance would certainly have been legally remedied. The petitioners before us have all slept over the entire corrective procedure that had been adopted before the Assembly Roll was finalised and that would be one of the reasons for us to decline them any relief even though the fact remains that the names of several persons which appeared in the earlier electoral roll and voters list are missing in the present voters list on the basis of which the Municipal election is going to be held.
40. The argument of Mr. Dessai, the learned counsel for the petitioners in Writ Petition No. 44 of 1996 that before omitting the names of the petitioners from the electoral roll, they should have been given a personal notice under Section 22 of the 1950 Act, does not appeal to us. When the intensive revision of the electoral roll was carried out, the public intimation or a public notice was sufficient to anybody who wanted his name to be included in the electoral roll and he should have inspected the draft roll when it was ready and published and should have made an effort to get his name included in the final electoral roll if his name appeared in the earlier electoral roll prepared in the year 1993 but, this time was omitted.
41. In the aforesaid view of the matter, we are not inclined to invoke our writ jurisdiction. The writ petitions are dismissed accordingly with no order as to costs. Rule in each of the petitions is discharged.
42. Petition dismissed