Himachal Pradesh High Court
Naresh Kumar vs State Election Commission & Ors on 2 January, 2021
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
.
CWP No. 40 of 2021
Decided on: 02.01.2021.
Naresh Kumar ...Petitioner
Versus
State Election Commission & Ors. ...Respondents
_____________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting? 1 No.
For the Petitioner : Mr. Surinder Saklani, Advocate.
For the Respondents : Mr. Ajeet Saklani, Advocate, for State
Election Commission.
Mr. Ashok Sharma, A.G. with Mr.
Vinod Thakur, Mr. Shiv Pal Manhans,
Addl. A.Gs., Mr. Bhupinder Thakur, Ms.
Seema Sharma and Mr. Yudhvir Singh
Thakur, Dy. A.Gs., for respondents-
State.
(Through video conferencing)
Tarlok Singh Chauhan, Judge (Oral)
The instant petition has been filed for the grant of following reliefs:
(i) That a writ in nature of mandamus may be issued thereby the directing the respondents to include name of petitioner in final voter list for Ward No.5, Kandi-3, Gram Panchayat 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 04/01/2021 20:17:59 :::HCHP 2 Kandi, Tehsil Chachyot, District Mandi, Himachal Pradesh for ensuring Panchyat elections, forthwith.
(ii) That the petitioner may be allowed to file his nomination .
for the post of Pradhan on the basis of tentative/draft voter list.
(iii) That the petitioner be permitted to exercise his franchise in the ensuring Panchayat elections.
2. A perusal of the petition reveals that the claim of the petitioner is based upon a so-called draft voter list, which is alleged to have been circulated on 03.11.2020, wherein the name of the petitioner was duly reflected.
Learned counsel for the petitioner urges that once the name of the petitioner was reflected in the draft voter list, therefore, he had no occasion to file any objection. Now, since his name is not reflected in the final voter list, therefore, he has every right to file and maintain the writ petition.
3. The plea of the petitioner is not at all tenable because the same is factually incorrect. As a matter of fact, since the Panchayat was to be bifurcated, therefore, the tentative list was given to the Secretaries of the Panchayats but the same were neither circulated nor objections qua the same was invited by the respondents. Actually, it was the draft voter list that was published on 09.11.2020 and thereafter objections qua the same were invited w.e.f.
::: Downloaded on - 04/01/2021 20:17:59 :::HCHP 310.11.2020 to 19.11.2020 and it was only thereafter that the list was finalised and circulated. Admittedly, in the draft .
voter list, the name of the petitioner is not reflected and yet he took no steps to file objections to the same.
4. It is well settled proposition of law that inclusion or exclusion of name in the Voter List cannot be termed as an extraordinary circumstance warranting interference of the High Court in exercise of the jurisdiction under Article 226 of the Constitution. However, it is always open to a person whose name is not included in the Voter List to avail the benefit by filing election petition as the authorities constituted have wide powers to cancel, confirm and amend the election and it can also direct to hold fresh election, in case, the election is eventually set aside.
5. No doubt, in extraordinary and exceptional circumstances, the High Court can entertain writ petition under Article 226 of the Constitution where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of name in the Voter List cannot be termed as extraordinary circumstance warranting interference by the Court under Article 226 of the ::: Downloaded on - 04/01/2021 20:17:59 :::HCHP 4 Constitution and such question at best are to be decided in election petition.
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6. In addition to the above, a specific and time bound remedy is provided to an aggrieved person under Rule 24 of the Himachal Pradesh Panchayati Raj (Elections) Rules, 1994, when a person name is not included in the electoral roll.
7. Rule 24 of the Himachal Pradesh Panchayati Raj (Elections) Rules, 1994, reads as under:-
24. Inclusion of names in the electoral roll, finally published.- (1) Any person, whose name is not included in the electoral roll shall make an application, in Form-2 (in duplicate), to the District Election Officer (Panchayats) for inclusion of his name in that electoral roll, and such application shall be accompanied by a fee of rupees two to be paid in cash against receipt.
(2) District Election Officer (Panchayats) shall immediately on receipt of application under sub-rule (1) direct that one copy thereof be pasted in some conspicuous place in his office together with a notice inviting objections to such application within a period of four days from the date of such pasting.
(3) The District Election Officer (Panchayats) shall as may be, after the expiry of the period specified in the notice under sub-rule (2), consider the objections, if any, received by him and shall, if satisfied that the applicants entitled to be registered in the electoral roll, direct such name to be included therein within a period of 3 days:
Provided that if the applicant whose name is ordered to be included is already registered in the electoral roll of ::: Downloaded on - 04/01/2021 20:17:59 :::HCHP 5 any other constituency of the same Gram Sabha or another Gram Sabha or a Municipality, such a name shall be deleted from that electoral roll:
.
Provided further that an application under this rule at any time after publication of the election programme under rule 32 shall be made to the District Election Officer (Panchayats) not later than 9 days before the last date fixed for the filing of nomination papers:
Provided further that no amendment or transposition or deletion of any entry shall be made on or after the last date for making nomination till the election process is over.
(4) Where an application made under sub-rule (1), is rejected, an appeal shall be within a period of ten days from the date of rejection of the application for the inclusion of names to the State Election Commission, whose decision shall be final.(5) Every appeal under sub-
rule (4) shall be accompanied by a fee of twenty rupees to be paid in cash against receipts.
8. Sections 35 and 114(e) of the Evidence Act declare that there was always presumption of regularity of an official act. Of course, such presumption is rebuttable presumption. (See: Jagjit Singh vs. State of Haryana (2006) 11 SCC 1).
9. The wise principle of presumption which is also recognised by the legislature, is that judicial and official acts are regularly performed. The presumption is based on the legal maxim omnia praesumuntur rite it dowee ::: Downloaded on - 04/01/2021 20:17:59 :::HCHP 6 probetur in contrarium solemniter esse acta i.e. all the acts are presumed to have been done rightly and regularly, .
applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed.
The learned counsel for the petitioner has miserably failed to rebut the presumption.
10. Lastly and more importantly, it is also axiomatic that normally the High Court exercising jurisdiction under Article 226 of the Constitution of India should not interfere with the process of election once the same has already commenced.
11. Reference in this regard can conveniently be made to the judgments of the Hon'ble Supreme Court in Nanhoo Mal and others vs. Hiramal & Ors., (1976) 3 SCC 211, Shri Sant Sadguru Janardan Swami vs. State of Maharashtra and Ors, 2001 (8) SCC 509 and Election Commission of India vs. Ashok Kumar & Ors., 2000 (8) SCC 216.
12. In the instant case, the election process has already begun and final voter list has also been published, therefore, entertaining this petition at this stage would ::: Downloaded on - 04/01/2021 20:17:59 :::HCHP 7 amount to obstructing the election process, which is not permissible.
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13. It is more than settled that Court in exercise of its writ jurisdiction can interfere in the matters relating to election only if it subserves the progress of election and facilitates the completion thereof.
14. The present petition filed after commencement of the election process, that too, with a view to stall election, therefore, cannot be entertained, when the petitioner has an alternate efficacious remedy of filing an election petition under Rules.
15. In view of the aforesaid discussion, we find no merit in this petition and the same is accordingly dismissed.
Pending application(s), if any, also stands disposed of.
Parties are left to bear their own costs.
(Tarlok Singh Chauhan)
Judge
(Jyotsna Rewal Dua)
2nd January, 2021 Judge
(sanjeev)
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