Himachal Pradesh High Court
Sapna Devi vs State Of H.P. & Ors on 1 January, 2021
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
.
CWP No. 6457 of 2020
Decided on: 01.01.2021.
Sapna Devi ...Petitioner
Versus
State of H.P. & 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. Karan S. Kanwar, Advocate.
For the Respondents : 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.
Mr. Ajit Saklani, Advocate, for State
Election Commission.
(Through video conferencing)
Tarlok Singh Chauhan, Judge (Oral)
Aggrieved by the non-inclusion of her name in the Voter List, the petitioner has filed the instant petition for the grant of following substantive reliefs:-
(i) Issue a writ of Certiorari or direction in the nature of writ of Certiorari quashing, setting aside the Voter List of Gram Panchayat Katli, Panchayat Samiti Pachhad (Annexure P-6).1
Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 02/01/2021 20:15:47 :::HCHP 2
(ii) Issue a writ of Mandamus or direction in the nature of writ of Mandamus directing the respondents to include the name of the petitioner in the Voter List of Gram Panchayat .
Katli, Panchayat Samiti Pachhad.
(iii) Issue a writ of Mandamus or direction in the nature of writ of Mandamus directing the respondents to let the petitioner file and submit her nomination papers for contesting as a candidate in the elections for the Panchayat Samiti from her ward Katli.
2. 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.
3. 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 ::: Downloaded on - 02/01/2021 20:15:47 :::HCHP 3 interference by the Court under Article 226 of the Constitution and such question at best are to be decided in .
election petition.
4. 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.
5. 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 ::: Downloaded on - 02/01/2021 20:15:47 :::HCHP 4 already registered in the electoral roll of 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.
6. However, learned counsel for the petitioner would argue that since the provisional electoral rolls were neither published nor notified or kept in the Panchayat Ghar as per the Rules, therefore, she had no occasion or chance to avail of the remedy as provided under Rule 24.
7. These allegations of the petitioner are vehemently opposed by the learned Advocate General, on the basis of instructions imparted vide letter dated 31.12.2020, received from the office of District Panchayat Officers, Sirmuar, relevant portion whereof reads as under:-
::: Downloaded on - 02/01/2021 20:15:47 :::HCHP 51. The updating of electoral rolls is carried out as per Rule 12 to 27 of the Himachal Pradesh Panchayati Raj (Election) Rules 1994. The programme for placing draft .
electoral rolls for perusal vide State Election Commission letter 2086-97 dt. 16.09.2020 in special meeting at Panchayat level on 21.09.2020 was forwarded to all BDOs on 17.09.2020.
2. It is pertinent to mention that draft publication of electoral rolls was carried out on 03.10.2020, press note about which had already been released on 1.10.2020.
These rolls were kept for revision from 05.10.2020 to 14.10.2020.
3. Moreover, upon perusal of the final panchayat electoral roll for the same for the year 2015, it was found that the name of the petitioner was nowhere to be found. Hence, you are requested to kindly apprise the Hon'ble High Court when the case is listed.
8. Confronted with this, the learned counsel for the petitioner would still argue that no such exercise as stated was ever undertaken by the Department, but we find no merit in the said contention.
9. 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).
10. The wise principle of presumption which is also recognised by the legislature, is that judicial and official ::: Downloaded on - 02/01/2021 20:15:47 :::HCHP 6 acts are regularly performed. The presumption is based on the legal maxim omnia praesumuntur rite it dowee .
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.
11. 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.
12. 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.
::: Downloaded on - 02/01/2021 20:15:47 :::HCHP 713. 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 amount to obstructing the election process, which is not permissible.
14. 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.
15. 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.
16. 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) 1 January, 2021 st Judge (sanjeev) ::: Downloaded on - 02/01/2021 20:15:47 :::HCHP