Karnataka High Court
Rizwan Arshad vs Election Commission Of India on 18 April, 2023
Bench: Chief Justice, M.G.S. Kamal
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WA No. 405 of 2023
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT APPEAL NO. 405 OF 2023 (GM-RES)
BETWEEN:
1. RIZWAN ARSHAD
S/O SRI R.Q. ARSHAD
AGED ABOUT 42 YEARS
R/AT NO 24 SRI VATREVU APARTMENTS
FLAT NO G2, BENSON CROSS ROAD
BENSON TOWN
BENGALURU - 560 001.
Digitally signed
by K P 2. BIBI HAJIRA
SWETHA
S/O MOHAMMED JABBER
Location: HIGH
COURT OF AGED ABOUT 30 YEARS
KARNATAKA
R/AT NO 11/1 COOKS ROAD
18 NEHRUPURAM
SHIVAJINAGAR
BANGALORE NORTH
BANGALORE GPO
BANGALORE - 560 001.
3. ABDUL LATEEF
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WA No. 405 of 2023
S/O ABDUL AZEEZ
AGED ABOUT 52 YEARS
R/AT No.9, COOKS ROAD
IB BHARATHINAGAR
SHIVAJINAGAR
BANGALORE - 560 001.
4. MEHNAZ
D/O S.K. ASLAM
AGED ABOUT 24 YEARS
R/AT No.17 K NO 5TH STREET
SEEPINGS ROAD
SHIVAJINAGAR
BANGALORE NORTH
H.K.P ROAD
BANGALORE - 560 001.
5. SHOAIB KHAN
S/O ABDUL SATTAR
AGED ABOUT 41 YEARS
R/AT 89F, THIMMAIAH ROAD
NEHRUPURAM
SHIVAJINAGAR
BANGALORE NORTH
BANGALORE - 560 001.
6. SYED AMEEN
S/O S.K. ASLAM
AGED ABOUT 26 YEARS
R/AT # SEPPINGS ROAD
SHIVAJINAGAR
BANGALORE NORTH
BANGALORE - 560 001.
7. AYISHA SULTHAN
W/O S.K. ASLAM
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WA No. 405 of 2023
AGED ABOUT 47 YEARS
R/AT 17B K NO 5TH STREET
NEHRUPURAM
BHARTHINAGR
BANGALORE
BANGALORE - 560 001.
8. SEEMAKHANUM
W/O SHOAIB KHAN
AGED ABOUT 33 YEARS
No. 89E, THIMMA THIMMAIAH ROAD
NEHRUPURAM
SHIVAJINAGAR
BANGALORE NORTH
BANGALORE - 560 001.
9. SADIYABANO
D/O NISAR S.K.
AGED ABOUT 36 YEARS
NO 4/1 GROUND FLOOR
MUTHAYALAMMA B STREET
SEEPINGS ROAD CROSS
BANGALORE NORTH
BANGALORE - 560 001.
10. H. RIYAZ AHMED
S/O R ABDUL AHMED
AGED ABOUT 63 YEARS
R/AT 15 E NO 3RD STREET
SHIVAJINAGAR
BANGALORE - 560 001.
11. A. ASHRAF PASAH
S/O ABDULLA
AGED ABOUT 55 YEARS
No.3 HKP ROAD CROSS
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WA No. 405 of 2023
SHIVAJINAGAR
BANGALORE - 560 001.
12. AQILFARUQI
S/O ABDUL KHALIQ
AGED ABOUT 56 YEARS
R/AT 5 E NO 5TH STREET
SHIVAJINAGAR
BANGALORE - 560 051.
13. A FARIAN TAJ
D/O ASHRAF PASHA
AGED ABOUT 33 YEARS
NO HKP CROSS
SHIVAJINAGAR
BANGALORE - 560 051.
14. YASMEEN BEGUM
D/O FIDHA HUSSAIN
AGED ABOUT 21 YEARS
1, SLATAR HOUSE C ROAD
SHIVAJINAGAR
BANGALORE
BANGALORE - 560 051.
15. SAYEEDA BEGUM
W/O FIDA HUSSAIN
AGED ABOUT 63 YEARS
5C STREET, H.K.P ROAD
SHIVAJINAGAR
BANGALORE - 560 051.
16. ABDUL KHADEER KHAN
S/O IMADULLAH KHAN
AGED ABOUT 41 YEARS
NO 4 SLOUGHTER HOUSE C STREET
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WA No. 405 of 2023
HKP ROAD
SHIVAJINAGAR
SHIVAJINAGAR
BANGALORE - 560 051.
17. SYED NAUSHAD PASHA
S/O SYED AMEER PASHA
AGED ABOUT 45 YEARS
No. 10 SLOUGHTER HOUSE B STREET
SHIVAJINAGAR
BANGALORE - 560 051.
18. S. SHUAIB AHMED
S/O N SAGEER AHMED
AGED ABOUT 21 YEARS
NO 22 E NO 7TH STREET
HKP ROAD CROSS
SHIVAJINAGAR
BANGALORE - 560 051.
19. ABDUL JABBAR
S/O ABDUL REHMAN
AGED ABOUT 51 YEARS
NO 38, COCK BURN ROAD
SHIVAJINAGAR
BANGALORE NORTH
BANGALORE - 560 051.
20. MAQBOOL JAN
W/O BASEER AHMED
AGED ABOUT 79 YEARS
No.14/1 COOKS ROAD
2ND CROSS
THIMMAIAH ROAD
SHIVAJINAGAR
BANGALORE - 560 051.
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WA No. 405 of 2023
21. NISAR AHMED
S/O ABDUL KHADER
AGED ABOUT 69 YEARS
NO 7/8, E NO 4TH STREET
SHIVAJINAGAR
BANGALORE - 560 051.
...APPELLANTS
(BY SRI. SHASHI KIRAN SHETTY, SENIOR ADVOCATE
SRI. KIRAN J., ADVOCATE)
AND:
1. ELECTION COMMISSION OF INDIA
NIRVACHANASADAN
ASHOKA ROAD
NEW DELHI - 110001
REP. BY SECRETARY.
2. THE CHIEF ELECTORAL OFFICER
NIRVACHANA NILAYA
SHESHADRI ROAD
BENGALURU - 560 009.
3. ELECTORAL REGISTRATION OFFICER
SHIVAJINAGAR ASSEMBLY
CONSTUTUENCY BBMP BUILDING
QUEENS ROAD
SHIVAJI NAGAR
BENGALURU - 560 051.
...RESPONDENTS
(BY SRI. K.N. PHANINDRA SENIOR AVOCATE FOR
SRI. DODAWAD SHARASCHANDRA RAMESH, ADVOCATE
FOR R1 TO R3)
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WA No. 405 of 2023
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE
APPEAL BY SETTING ASIDE THE ORDER DATED:05.04.2023
PASSED BY THE LEARNED SINGLE JUDGE IN WP No.7025/2023
(GM-RES). b) GRANT RELIEF AS SOUGHT FOR IN WP
No.7025/2023.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING,
THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT
This writ appeal is filed against the order dated 05.04.2023 passed in W.P.No.7025/2023 (GM-RES) rejecting the writ petition of the appellants.
2. The above writ petition has been filed by the appellants herein seeking:
(a) quash of the paper publication dated 22.03.2023 published in the English Newspaper "The New Indian Express" on the ground of the same being arbitrary, illegal and in contravention of the Representation of People Act, 1950, Registration of Electors Rules, 1960, (`Act 1950' and `Rules 1960' for short) Instructions and Circulars issued by Election Commission of India;-8- WA No. 405 of 2023
(b) for a direction to declare the action of the respondents in issuing paper publication is contrary to the order dated 14.03.2023 passed in W.P.No.3592/2023 and connected cases, and;
(c) for a direction to the respondents to make a separate list for Absentees, Shifted and Dead (ASD List) in accordance with the handbook issued by the respondents to all the Returning Officers.
3. It is the case of the appellants/writ petitioners that:
(a) Respondent No.3 -Electoral Registration Officer had conducted periodical revision of electoral roll for Shivajinagar Constituency, which is a continuous process and the same was done upto 04.10.2022. That upon the representation by certain local residents made on 11.10.2022 to the Election Commission of India alleging inclusion of illegal and unauthorised voters in the Shivajinagar Constituency and for necessary action thereto, names of 231 people came to be deleted in the final voters list dated 15.01.2023.
(b) That a list of 9195 `displaced' as well as 1847 `deceased' electors was prepared without -9- WA No. 405 of 2023 application of mind as per the information given by Booth Level Officers who purportedly acted at the instance of third parties. That based on certain media reports and complaints with regard to collection of voters data the Election Commission of India appointed Regional Commissioner to conduct enquiry and to submit a report. Based on the report of the Regional Commissioner, Election Commission of India had issued direction to the Chief Secretary and CEO, Karnataka ensuring adherence to directions for the purpose of `deletion' and `addition' of names in the electoral rolls after 01.01.2022 in three constituencies including Shivajinagar.
(c) That the Election Commission of India published integrated draft electoral rolls on 09.11.2022 in respect of Shivajinagar constituency. That certain representations were given on 11.10.2022, 19.10.2022, 30.11.2022, 19.12.2022 alleging existence of names of 26000 illegal voters in the electoral rolls. That the special drives were conducted on the basis of directions issued by Election Commission of India.
The Election Commission fixed 24.12.2022 as last date for filing of objections and 06.01.2023 to be
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WA No. 405 of 2023the date for disposal of such claims and objections. That the names of petitioners were also wrongly shown in the list of `shifted persons' and were issued with notices albeit to wrong addresses. That upon filing of objections by the petitioners their names were retained in the list.
(d) That writ petitions in W.P.No.3592/2023 and W.P.No.2632/2023 were filed in respect of the issue pertaining to electoral rolls concerning Shanthinagar Constituency and Shivajinagar Constituency. That the petitioners had sought to implead themselves in the said writ petition. That by a common order dated 14.03.2023 the said writ petitions were disposed directing the Commission to undertake the exercise which they had already undertaken in respect of 8281 voters identified as `shifted' and 1847 voters identified as `dead' and to take the said process to the logical conclusion in consonance with Act 1950, Rules 1960, Guidelines and Circulars particularly with reference to Rule 21A of the Rules, 1960 and to conclude said exercise on or before 26.03.2023.
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(e) That in contravention to the directions contained in the aforesaid order dated 14.03.2023 passed in the above writ petitions, respondents had issued paper publication dated 22.03.2023 English newspaper "The New Indian Express" calling for objections for deletion of names of 8281 electors in the final voters list dated 15.01.2023.
(f) That the petitioner No.1 on going through the said list in the newspaper found the names of petitioners 2 to 20 and accordingly approached this Court by filing the present writ petition challenging the action of the respondents in issuing paper publication for deletion of names and seeking reliefs as noted above.
4. Learned Single Judge taking note of the submissions made on behalf of appellants/petitioners in furtherance to writ petition and submissions made in justification of issuance of the paper publication by the respondents, by impugned order dated 05.04.2023 even while rejecting the writ petition directed respondent- commission to take corrective measures in respect of
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WA No. 405 of 2023appellant No.1/petitioner No.1 and take it to its logical conclusion. Being aggrieved by the said rejection of the writ petition the present appeal by the appellants/petitioners.
5. Sri.Shashi Kiran Shetty, learned Senior Counsel appearing for appellant/petitioners apart from reiterating the grounds urged in the memorandum of appeal emphatically submitted that:
(a) once a final electoral roll is issued under Section 21 of the Act, 1950 and Rule 21A of the Rules 1960 there cannot be any addition or deletion of the names therefrom.
(b) If in the event the Registration Officer deems it appropriate to delete any name he shall strictly adhere to the procedure prescribed.
That the respondent authorities without adhering to the Act, Rules, Guidelines or Circulars even as directed in terms of the
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WA No. 405 of 2023common order dated 14.03.2023 passed in W.P.No.3592/2023 connected with W.P.No.2632/2023 had proceeded to issue impugned paper publication listing the names of voters for deletion from the electoral roll.
(c) No notices have been served on the persons whose names are published in the said paper publication. No enquiry as contemplated under law has been conducted. That the entire exercise is arbitrary and illegal.
(d) Drawing attention of this Court to paragraph 8.1 of the affidavit filed by the Director (Law), Election Commission of India before the Hon'ble Apex Court in Writ Petition (c) No.1253/2021, learned Senior counsel submits that the Commission had issued a specific direction to `prevent wrongful deletion of names' from the electoral roll, in that it was emphasized that in all cases a notice must be issued to the elector and
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WA No. 405 of 2023must be duly served on him and in cases where elector is not found at the address, service must be done by affixture in the presence of two witnesses and in the case of death, a certificate or a statement of relatives, friends or neighbours could be accepted in lieu of proof of service of notice. That after the final publication of rolls, no suo moto deletion shall be done in the election year. That the deletion could be made only on the basis of Form No.7 or on the basis of request for deletion.
(e) That issuance of paper publication in English language as sought to be done in the instant case would be of no avail as most of the electors are not conversant with the English language and the publication if any ought to have been in regional language as provided under Electoral Manual 2016.
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(f) That in the situation at hand, all that is required to be done as a way forward is to prepare a separate list of Absentee, Shifted, Dead, (ASD list) as provided under the handbook issued by the respondent to all the returning officers.
(g) Learned counsel relies upon the following Judgments:
(i) Anoop Baranwal Vs Union of India reported in 2023 SCC Online SC 216 - para 94, 148, 149
(ii) A Subair Vs State of Kerala reported in (2009)6 SCC 587 -para 9, 11
(iii) Kabul Singh Vs Kundan Singh reported in (1969) 2 SCC 452 - para 8
(iv) Laxmikant Bajpai Vs Haji Yaqoob and others reported in (2010) 4 SCC 81 - para 20, 21
(v) Darla Ram Devi and others Vs Government of Andhra Pradesh and others in W.P.No.619/2009
(vi) Ramesh Chennithala Vs Election Commission of India and others reported in 2021 SCC Online Ker 1553 - para 9(x) Thus seeks for allowing of the appeal and to grant the reliefs sought for in the writ petition.
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6. Per contra, Sri.K.N.Phanindra, learned Senior counsel appearing for Sri.Dodawad, learned counsel for respondent-Commission questioned the very maintainability of the writ petition on the ground of locus standi of the appellants/petitioners. He also emphatically justified actions of the respondent -commission. On the aspect of maintainability of writ petition learned Senior counsel submitted:
(a) That the appellants/petitioners have no locus standi to maintain the writ petition inasmuch as their personal grievance, if any, had been addressed and their names have been retained in the electoral rolls;
(b) That the writ petition is neither in the nature of public interest or of representative character.
None of electors whose names are found in the paper publication are before this Court. As such
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WA No. 405 of 2023the petitioners cannot be heard on the grievance of the persons who are not before the Court.
(c) On merits of the case learned Senior counsel submits that after the ground verification by the Booth Level Officers, 11000 names were identified either as `dead' or `shifted' from the constituency. 9195 out of 11000 names were identified as `shifted voters' to whom notices have been issued through Registered Speed Post. Out of which 914 voters responded to the notice confirming that they are staying in the constituency. As such their names have been retained in the electoral roll. Remaining notices have been returned with the postal endorsement "Addressee Left". Apart from issuing of notices mahazar was conducted by going to the respective houses of the electors and mahazar was drawn in the presence of neighbours/witnesses.
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(d) That in the order dated 14.03.2023 passed in W.P.No.3592/2023 connected with W.P.No.2632/2023 this Court taking note of the aforesaid facts had directed the Commission to take the process to its logical end in respect of 8281 voters who were identified as `shifted' and 1847 voters who were identified as `dead'.
(e) He further submits that since the exercise of issuance of notice had commenced long before filing of the writ petitions, which had returned with postal endorsement "Addressee Left", in view of the directions issued in the aforesaid order dated 14.03.2023, as a matter of abundant caution and additionally to ensure compliance with the rules of natural justice, though not provided either under the Act 1950 or Rules 1960, the Commission thought it appropriate to issue paper publication. Accordingly, paper publication was issued on 22.03.2023.
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(f) That despite issuance of notices and paper publication except the petitioners not a single person has approached either the authority concerned or the Court contesting the exercise/action being taken by the respondent authorities.
(g) That in view of the impugned order dated 05.04.2023 directing the authorities to take the exercise to its logical conclusion, an order has been passed on 06.04.2023 deleting the names of 7192 electors from the roll and a communication in this regard has been issued.
(h) That there is a provision for appeal provided under the Act, 1950, Rules 1960 enabling the aggrieved person whose name is deleted from the list.
(i) That since the calendar of events has been issued and the last date for filing the nomination
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WA No. 405 of 2023being 20.04.2023 no interference with the process of election is permissible.
(j) Learned Senior counsel relies upon the Judgment of the Apex Court in the case of Lakshmi Charan Sen and others Vs A.K.M.Hassan Uzzaman and others reported in (1985) 4 SCC 689 -para 16 and Election Commission of India Vs Ashok Kumar and others reported in (2000)8 SCC 216.
Hence, seeks for dismissal of the writ appeal.
7. Heard. Perused the records.
8. On consideration of the rival submissions of the learned Senior counsel for the parties, points that arise for our consideration are:
"(i) Whether the appellant/petitioners have `locus standi' to invoke jurisdiction of this Court under Article 226 of the Constitution of India seeking redressal of the grievance of the electors with regard to deletion of their names from the electoral
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rolls as found in the notice published in "The New Indian Express" newspaper dated 22.03.2023?
(ii) Whether the appellant/petitioners have otherwise made out grounds for interference with the impugned order dated 05.04.2023?"
Re: Point No.1:
9. Entire case of the appellants/petitioners revolves around the procedure adopted by the respondents in revising the electoral roll and eventual deletion of names of the electors from the electoral rolls identified as `shifted' and `dead'. It is well settled law that in the context of invoking jurisdiction of the Court under Article 226 of the Constitution only persons aggrieved by violation or infringement of their/his constitutional rights can file a writ petition in their/his personal/private capacity. In this regard it is apposite to refer to the law laid down by the Apex Court in the case of J.M.Desai Vs Roshan Kumar (AIR 1976 SC 578) wherein at paragraph 36 to 40 dealing with the issue of locus standi, it has been held as under:
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"36. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) 'person aggrieved'; (ii) 'stranger';
(iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the pas-time of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration.
The High Court should do well to reject the applications of such busybodies at the threshold.
37. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey outer-circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outerzone may not be "persons aggrieved".
38. To distinguish such applicants from 'strangers', among them, some broad tests may be deduced from the conspectus made above.
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WA No. 405 of 2023These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are:
Whether the applicant is a person whose legal right has been infringed ? Has he suffered a legal wrong or injury, in the sense that his interest, recognised by law. has been prejudicially and directly affected by the act or omission of the authority, complained of ? Is he a person who has suffered a legal grievance, a person "against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something" ? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public ? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority ? Is the statute, in the context of which the scope of the words "person aggrieved" is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals ?
39. Now let us apply these tests to the case in hand. The Act and the Rules with which we are concerned, are not designed to set norms of moral or professional conduct for the community at large or even a section thereof. They only regulate the exercise of private rights of an individual to carry on a particular business on his property. In this context, the expression "person aggrieved" must receive a strict construction.
40. Did the appellant have a Legal right under the statutory provisions or under the general
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WA No. 405 of 2023law, which has been subjected to or threatened with injury. ? The answer in the circumstances of the case must necessarily be in the negative."
10. In the case of D.Nagaraj Vs State of Karnataka (AIR 1977 SC 876) Apex Court at paragraph 7 held as under;
"7. The sole question that requires to be determined in these appeals is whether the appellants could maintain that aforesaid writ petitions. It is well settled that though Article 226 of the Constitution in terms does not describe the classes of persons entitled to apply thereunder, the existence of the right is implicit for the exercise of the extraordinary jurisdiction by the High Court under the said Article. It is also well established that a person who is not aggrieved by the discrimination complained of cannot maintain a writ petition.
11. In the case of S.P.Gupta Vs Union of India reported in 1981 (Supp) SCC 87 at paragraphs 17, 19, 20 dealing with locus standi the Apex Court held as under:
"17. It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any
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such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons...................
..........But we must hasten to make it clear that the individual who moves the court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the court should not allow itself to be activised at the instance of such person and must reject his application at the threshold, whether it be in the form of a letter addressed to the court or even in the form of a regular writ petition filed in court.
(emphasis supplied by us)
19. There is also another reason why the rule of locus standi needs to be liberalised. Today we find that law is being increasingly used as a device of organised social action for the purpose of bringing about socio-economic change. The task of national reconstruction upon which we are engaged has brought about enormous increase in developmental activities and law is being utilised for the purpose of development, social and economic. It is creating more and more a new category of rights in favour of large sections of
- 26 -WA No. 405 of 2023
people and imposing a new category of duties on the State and the public officials with a view to reaching social justice to the common man. Individual rights and duties are giving place to meta-individual, collective, social rights and duties of classes or groups of persons. This is not to say that individual rights have ceased to have a vital place in our society but it is recognised that these rights are practicably meaningless in today's setting unless accompanied by the social rights necessary to make them effective and really accessible to all. The new social and economic rights which are sought to be created in pursuance of the Directive Principles of State Policy essentially require active intervention of the State and other public authorities. Amongst these social and economic rights are freedom from indigency, ignorance and discrimination as well as the right to a healthy environment, to social security and to protection from financial, commercial, corporate or even governmental oppression. More and more frequently the conferment of these socio-economic rights and imposition of public duties on the State and other authorities for taking positive action generates situations in which a single human action can be beneficial or prejudicial to a large number of people, thus making entirely inadequate the traditional scheme of litigation as merely a two- party affair. For example, the discharge of effluent in a lake or river may harm all who want to enjoy its clean water; emission of noxious gas may cause injury to large numbers of people who inhale it along with the air; defective or unhealthy packaging may cause damage to all consumers of goods and so also illegal raising of railway or bus fares may affect the entire public which wants to use the railway or bus as a means of transport. In cases of this kind it would not be possible to say that any specific legal injury is caused to an individual or to a determinate class or group of individuals. What results in such cases is public
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injury and it is one of the characteristics of public injury that the act or acts complained of cannot necessarily be shown to affect the rights of determinate or identifiable class or group of persons : Public injury is an injury to an indeterminate class of persons. In these cases the duty which is breached giving rise to the injury is owed by the State or a public authority not to any specific or determinate class or group of persons, but to the general public. In other words, the duty is one which is not correlative to any individual rights. Now if breach of such public duty were allowed to go unredressed because there is no one who has received a specific legal injury or who was entitled to participate in the proceedings pertaining to the decision relating to such public duty, the failure to perform such public duty would go unchecked and it would promote disrespect for the rule of law. It would also open the door for corruption and inefficiency because there would be no check on exercise of public power except what may be provided by the political machinery, which at best would be able to exercise only a limited control and at worst, might become a participant in misuse or abuse of power. It would also make the new social collective rights and interests created for the benefit of the deprived sections of the community meaningless and ineffectual.
12. The Apex Court in the case of Lakshmi Charan Sen (supra) at para 16 held that, "Right to be included in the electoral roll or to challenge to inclusion of any name in the roll is a right conferred upon an individual and not upon any political party. The petitioners are espousing the cause of unknown and undisclosed persons through a
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WA No. 405 of 2023writ petition, which does not even claim to possess a representative capacity".
13. At this juncture it is relevant to note that in terms of Section 24 of the Act 1950 and Rule 27 of Rules 1960, an appeal provision is provided enabling the persons aggrieved by their deletion of their names to redress their grievance.
14. In the instant case on a perusal of contents of writ petition we are unable to see any specific pleading or stand taken by the appellants/petitioners for and on behalf of persons whose names are sought to be deleted from the electoral roll by the respondents after purported enquiry and issuance of notice. The appellants/petitioners have not pleaded that those persons whose names are sought to be deleted are the class of persons who are unable to seek redressal of their grievance. Least, the petition is not one in the public interest or in the representative capacity.
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15. As rightly contended by the learned Senior Counsel for the respondent-commission the individual grievance of the petitioners admittedly having been addressed, in other words their names having been retained in the electoral rolls on consideration of their objections/representation, they may have no cause of action to sustain the writ petition. There is no pleading in the writ petition justifying maintainability of the writ petition for and on behalf of the persons who are not before this Court. Learned Senior counsel for the appellant/petitioners on a query is unable to respond in justification of appellants/petitioners maintaining the writ petition except stating that the first appellant/first petitioner is a sitting MLA, and that deletion of names from the electoral roll would adversely affect his prospects in the ensuing election. That in our considered opinion is hardly an answer for maintaining the above writ petition of this nature, inasmuch as the same fall shy of test of `person aggrieved' as enunciated by the Apex Court in the case of J.M.Desai supra and of the clarification given at
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WA No. 405 of 2023paragraph 17 of the Judgment in the case of S.P.Gupta supra.
16. In the light of the aforesaid settled legal principles on the issue of locus standi and in the light of the factual aspects of the matter, we are of the considered opinion that the appellants/petitioners have no locus standi to question the action of the respondent authorities in their exercise of revision of electoral rolls on behalf of unknown/unnamed persons in the writ petition. The point No.1 is answered accordingly.
Re: Point No.2:
17. The main thrust of the submissions of the learned Senior counsel for the appellants is that the process of issuance of notices, causing publication in the newspaper, listing out the names of the voters for deletion from the final list is not in accordance with Act, 1950 and Rules 1960, guidelines and instructions/orders. Several instances referring to the documents produced sought to be shown to buttress the contentions that notices have not
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WA No. 405 of 2023been effectively served as per the procedure and instructions and that no mahazar has been drawn in the manner known to law. It is also contended that notices that were issued do not provide even minimum period to respond or to show cause.
18. In view of our answer to the point No.1 as above, we are of the considered opinion that there is no requirement of dwelling into the aforesaid contentious issues raised by the appellants/petitioners on the process adopted by the respondent authorities in revising the electoral rolls, inasmuch the grievance of the appellants/petitioners has been addressed and their names have been retained in the electoral roll as seen in the communication dated 10.04.2023 produced as document No.2 by the respondent authorities by memo dated 11.04.2023. As such, we do not see any grounds being made out by the appellants/petitioners warranting interference at this stage. Point No.2 is answered
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WA No. 405 of 2023accordingly. Thus, appeal being devoid of any merit, deserves to be dismissed.
Accordingly, writ appeal is dismissed.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE SBN/RU