Prabhu Nath Mishra vs State Of U.P. And 4 Others
2015 Latest Caselaw 2302 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 10
 

 
Case :- WRIT - C No. - 52509 of 2015
 
Petitioner :- Prabhu Nath Mishra
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Sudeep Harkauli,Radha Kant Ojha
 
Counsel for Respondent :- C.S.C.,J.N. Mishra,K.D. Mishra
 

 
Hon'ble Arun Tandon,J.

Hon'ble Ashwani Kumar Mishra,J.

1.Petitioners, before this Court, who are two in number, seek writ of mandamus directing the respondents namely the Electoral Registration Officer, Allahabad, and Subordinate Authorities to include the name of petitioners in the voter list prepared for Gram Panchayat Jewania, Block- Urwa, Tehsil Meja, District Allahabad, and to produce the records/order, if any, by which the name of petitioners have been removed from the voter list and quash the same.

2.It is the case of the petitioners that they were original residents of Gram Panchayat Kunwar Patti, Block Uruwa, Tehsil Meja, District Allahabad. They shifted to a different Gram Panchayat i.e. the village qua which the present controversy relates. It is stated that petitioners had made an application for inclusion of their name in the voter list to be prepared for the Panchayat Elections of 2015 in respect of Gram Panchayat Jewania. It is their case that on the said application being filed, a tentative list was published (reference page 33 of the paper book), wherein the name of petitioners were included. It is then stated that in the final list, which has been published on 5.9.2015 for the Gram Panchayat Jewania, the name of the petitioners are not included therein. Aggrieved by such exclusion of their name from the final voter list, the petitioners claim to have filed a representation/application before the authorities. It is then stated that petitioners were not informed about any objection made against inclusion of their names in the voter list, and therefore, the question of opportunity of hearing, being afforded to the petitioners to meet the objection, also never arose. It is stated that there has been non-compliance of Rule 12 (3), Rule 15(2) and Rule 15(3) of the Uttar Pradesh Panchayat Raj (Registration of Electors) Rules, 1994. The final voter list published for the village in question has been enclosed as Annexure No.6 to the present writ petition.

3.Sri R.K. Ojha, learned Senior Counsel assisted by Sri Sudeep Harkauli for the petitioner contended before us that since their name from the tentative voter list have been deleted without opportunity and without disclosing the objections, the same is bad, and this Court may, therefore, grant the relief, as has been prayed for in the present writ petition.

4.Learned Standing Counsel on the contrary objects to the plea so raised and submits that a detail mechanic has been provided in the matter of preparation of final voter list and a further liberty is granted to the persons concerned, whose names have been left out in final voter list to get their name included by availing opportunity under the provisions of the Uttar Pradesh Panchayat Raj (Registration of Electors) Supplementary Provisions Order, 1999, of making appropriate application by depositing requisite fees. The petitioners have failed to avail the remedy so provided, and therefore, this Court may not interfere.

5.We have heard learned counsel for the parties and examined the records of the present writ petition.

6.So far as the preparation of the electoral college in respect of Panchayat Election is concerned, we may refer to Section 9 of the U.P. Panchayat Raj Act, 1947, which provides for electoral rolls, being prepared for each territorial constituency. It may also be noticed that the electoral rolls once published are made final and any alternative addition or modification can be made in accordance with the Act and the Rules framed thereunder, which are also to be made in accordance with the procedure prescribed (reference Section 9(2) of the U.P. Panchayat Raj Act, 1947).

7.For the purposes of preparation of the electoral rolls, the State of Uttar Pradesh in exercise of power under Section 9(2) has framed the "Uttar Pradesh Panchayat Raj (Registration of Electors) Rules, 1994". We may record that under Rule 5, preparation of the rolls take place under the signatures of the Assistant Electoral Registration Officer, and for the purpose, he has been authorized to seek assistance from occupant of dwelling houses in the area of the territorial constituency by virtue of Rule 6. He has also been authorized to access the concern register of birth and death under Rule 7. Rule 8 provides for preparation of the draft rolls and confers right upon the persons residing in territorial limits to get the name included, when they are not so included as well as a right to object to the inclusion of names by filing objections. These claims and objections are required to be filed under the Rule 9 and 10 of the 1994 Rules. The procedure for consideration of these claims has also been laid down under Rules 14, 15 and 16 of the Rules 1994. Rule 17 permits inclusion of the name inadvertently left out or omitted, while Rule 18 provides for deletion of name of dead persons or persons who are not shown to be ordinary residents of the territorial limits. Rule 19 of the Rules provides for publication of final electoral roll. We may record that Rule 21-A permits filing of appeal against the orders deciding the application for inclusion of name as also against the orders, whereby objections are decided. Rule 21-A(4) & (5) provides that the decision of the appellate authority shall be final, and if the decision of the Assistant Electoral Registration Officer is reversed, it shall take effect from the date of order in the appeal, and provides that such amendments in terms of the orders of the appellate authority shall be made in the rolls, as may be necessary to give effect to it. Meaning thereby that the procedure contemplated under Rule 1994 is to be applied till the publication of the final electoral roll.

8.Once the final electoral roll is published then the Uttar Pradesh Panchayat Raj (Registration of Electors) Supplementary Provisions Order, 1999 comes into play. This Order has been framed in exercise of power under Section 9(10) of the Act of 1947. The Order of 1999 permits a person within the specified period to apply for addition of his name under Rule 3, for deletion of name of any person under Rule 4, not qualified to be registered, and Rule 5 provides for the correction in the entry of the roll, while Rule 6 permits inclusion of the left out name in the roll. Application for addition is to be filed in Form 2, for deletion in Form 4 and for correction in Form 3. Rules 6 provides for a power upon the District Magistrate, the Electoral Registration Officer, to make an enquiry in the matter of inclusion of the name of electors and to make his recommendation to the State Election Commission. Rule 7 requires a deposit of Rs.1/- each person as fees for the application of inclusion of name or for deletion in the roll or for the correction of any of the entries. The list of names included/deleted from the roll and of the correction entries is to be published on the noticeboard of the District Electoral Officer, and appeal against said order is provided under the rule 21-A. The power to make corrections in the roll is available to the authority only upto the date of notice for election, which flows from reading of definition of "specified period", as contained in Clause 2(f) of the Order 1999.

9.From a reading of the Rule 8, it is apparent that whatever changes takes place under the Order of 1999, the same are to be annexed to the original roll. The distinction between the exercise of power before the preparation of the electoral roll, under the 1994 Rules, and deletion/addition of the name of electors to be made under the provisions of Order 1999 are clearly distinct. Once the electoral roll has been prepared but not published, the correction thereto can only be made on an order to be passed by an appellate authority under Rule 21-A of the 1994 Rules, which order of the appellate authority has to be made part of the final roll itself. Subsequent to publication of final electoral roll under1994 Rules, correction by way of addition/deletion of names can only to be made under the Order of 1999. These corrections are introduced as Annexure to the original roll. The Statutory Scheme, notice above, therefore, lays down two distinct procedure in the matter of inclusion, exclusion and correction in the electoral rolls under the Regulations of 1994 and Order of 1999. While corrections under the 1994 Rules can be made till publication of the final roll subject to the orders of the appellate authority, corrections under the 1999 Order can be made only after such final roll has been published by incorporating the corrections, as Annexures to the main electoral roll.

10.We are, therefore, of the opinion that even if there has been some error in the preparation of the final electoral roll under the 1994 Rules, the law of elections being technical in nature, this Court cannot ask the authority to act contrary to the Rules regulating the faming of the electoral rolls. The petitioners cannot be permitted to seek a writ of mandamus commanding the respondents to add their name to the voter list for Gram Panchayat Jewania, once its final electoral roll has been published. They may make an application under the 1999 Order, after satisfying the essential requirement.

11.Since in the facts of the case final voter list has already been published and no application under 1999 Order has been made, there cannot be any mandamus to consider the request of the petitioners.

12.We may also record that although there is a general allegation that some objections had been made against the inclusion of name of the petitioners, but in fact we find that no particulars about any such objection have been disclosed in the petition nor any order in that regard is on record. Therefore, the issue of compliance of Rules 12 to 15 etc. does not arise.

13.We may clarify that if the inclusion of name is applied for and is rejected vide an order in writing, or where the objections made in respect of the inclusion of the names are rejected under 1994 Regulations, then the remedy lies under Regulation 21-A of the 1994 Regulations, and in that situation appellate order shall become final, and there shall be no cause for making an application under Order of 1999.

14.When there is no order either accepting an application for inclusion of the name or for rejecting the objection raised, then the applicant can only proceed under the Order of 1999, once the final electoral roll has been published under Rules 1994.

15.For the discussions and reasons, aforesaid, the writ petition subject to the observations made is dismissed.

Order Date :- 14.9.2015

Anil/n.u.

(Ashwani Kumar Mishra, J.) (Arun Tandon, J.)