Smt. Archana vs State Election Commission And 8 ...
2018 Latest Caselaw 353 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
Court No. - 6
 
                                                                                                              AFR
 
Case :- WRIT - C No. - 34927 of 2017
 

 
Petitioner :- Smt. Archana
 
Respondent :- State Election Commission And 8 Others
 
Counsel for Petitioner :- Ramesh Chandra Singh,Rahul Kumar Singh
 
Counsel for Respondent :- C.S.C.,Ashutosh Kumar Singh,S.K.Pandey,Saiful Islam Siddiqui,Suresh Kumar Pandey
 

 
Hon'ble B. Amit Sthalekar,J.

Heard Shri Ramesh Chandra Singh, learned counsel for the petitioner, Shri Ashutosh Kumar Singh and Shri S.K. Pandey, learned counsel for the respondent no. 3, and the learned standing counsel for the respondent no. 2.

The petitioner in the writ petition is seeking quashing of the order dated 31.7.2017 whereby the Prescribed Authority, S.D.M. has directed recounting of the ballots.

Briefly stated the case of the petitioner is that three tier elections for the post of Zila Panchayat, Kshetra Panchayat and Gram Panchayat were notified by the State Election Commission in 2015. The elections were held and the petitioner was declared elected. Thereafter an election petition was filed by the respondent no. 3- Smt. Premlata challenging the election result alleging that there were several irregularities in the electoral roll and that even dead persons as well as persons who had left the village and had gone away and were residing in other villages were shown to have voted. The Election Tribunal heard the matter and thereafter by the impugned order dated 31.7.2017 has ordered recounting.

The principal contention of the petitioner is that after the elections had been notified and result were declared it was not open for the respondent no. 3 to raise any such objections with regard to the validity of the electoral roll if such objection had not been taken at the time of preparation of the electoral roll. Copy of the election petition has been filed as Annexure-1 to the writ petition, in which it is stated that the strength of registered voters in the village Barahpur is 5553. The elections were held on 5.12.2015, 8 booths, namely, Booth Nos 35, 36, 37, 38, 39, 40, 41 and 42 were prepared for voting. 3473 votes were cast out of which 613 were declared invalid. It was alleged that the persons residing in other villages were also included in the voter list for the village Barahpur and many persons residing in this village were shown to be voters in other villages and names of dead persons were also included in the electoral roll. On behalf of the petitioner written statement was filed denying the allegations of the election petition. Statements of Smt. Premlata, Kripa Shanker, Smt. Archana and Sri Arvind were also recorded.

Shri R.C. Singh, learned counsel for the petitioner submitted that the respondent no. 3 never raised any objection against the electoral roll and therefore it is not open for her now to question the same after the election had already been held and result declared. He also submitted that though there is a reference to the application dated 23.2.2017, copy of which has been filed as Annexure-10 to the writ petition but this application for inspection of ballet papers and other documents, was not supported by any affidavit. On this application election papers were summoned by the S.D.M. Saidpur District Ghazipur by order dated 6.3.2017. This order of 6.3.2017 was challenged by the petitioner in W.P. No. 15806 of 2017 (Smt. Archana Vs. State Election Commission), which was disposed of by the High Court by order dated 19.4.2017 with the observation that since the opening of the seal of the election papers pursuant to the order of the S.D.O. dated 6.3.2017 had already been undertaken and the petitioner had not raised any objection at that stage prior to 3.4.2017 and the election petitioner has completed his evidence, therefore, on the submission of the learned counsel for the petitioner that the petitioner therein would file his objections and complete his evidence latest by 27.4.2017, the court declined to interfere with the impugned order dated 6.3.2017 and observed that in case the petitioner failed to file his evidence it would be open for the Election Tribunal to proceed with the matter.

On behalf of the respondent no. 3, Shri S.K. Pandey, learned counsel submitted that the affidavit was filed by the petitioner in support of the application dated 23.2.2017 for summoning of election papers but this submission has been refuted by Shri R.C. Singh, learned counsel for the petitioner and he submitted that the affidavit filed at page 52 of the counter affidavit does not show as to in support of which application it has been filed nor is there any allegation or prayer for recounting and therefore recounting could not have been ordered by the Prescribed Authority suo motu.

Shri S.K. Pandey in support of his contention referred to paragraphs 5 and 6 of his election petition showing the names of the persons who according to him were either residents of other villages or had already died and yet their names have been shown in the electoral roll.

I have gone through the pleadings of the parties and perused the impugned order.

The principal ground for filing the election petition by the respondent no. 3 is that in the electoral roll names of the persons who were shown residing in other villages or persons who were already dead were also shown in the electoral roll and their votes had been cast and it is on the basis of this irregularity that the respondent no. 3 lost the election by 38 votes.

The Prescribed Authority/Election Tribunal referring to Booth Nos. 35, 36, 39, 40, 41 and 42 has noted that the total votes were 1432 in Gram Sabha Barahpur, Vikas Khand Deokali Tehsil Saidpur District Ghazipur and that the voters in that village appeared to be the same persons and they had all voted in village Barahpur. Ten persons were such who had already died of which three were found alive; one Santosh Chaurasia who was reported to be in jail, his vote was also cast. On these findings the Prescribed Authority by the impugned order ordered for recounting.

The U.P. Panchayat Raj (Registration of Electors) rules, 1994 lays down the procedure for registration of electors, namely, preparation of the electoral rolls. Rule 5 refers to the preparation of the electoral rolls. Rule 7 refers to access to certain registers. Rule 8 provides for publication of roll in draft. Rule 9 provides for claims to inclusion of names in the roll of territorial constituency of a Gram Panchayat. Rule 10 provides for objections to entries in the roll. Rule 11 prescribes the time period for lodging claims and objections. Rule 5, 7,8,9,10 and 11 read as under:

"5. Preparation of rolls.- (1) The first roll shall be prepared in accordance with the provisions of these rules.

(2) The Electoral Registration Officer may in accordance with the instructions of the State Election Commission, for the purposes of preparation of the roll, adopt the electoral roll for the Assembly constituency prepared under the Representation of the People Act, 1950 for the time being in force so far as it relates to the area of the territorial constituency.

(3) The Assistant Electoral Registration Officer shall sign the roll and affix his seal thereto.

6. .................................

7. Access to certain registers. - For the purpose of preparing or revising roll or deciding any claim or objection to a roll, the Assistant Electoral Registration Officer and any person employed by the Electoral Officer in that behalf shall have access to any register of births and deaths and to the admission register of any educational institution and it shall be the duty of every person in charge of any such register to give to the said officer or person such information and such extracts from the said register as he may require.

8. Publication of rolls in draft - (1) As soon as the roll for all the territorial constituencies of a Gram Panchayat are ready, these shall be sent to the Electoral Registration Officer who shall publish those in draft by making a copy thereof available for inspection and displaying a notice in Form 1 at the office of the Block Development Officer.

(2) The Electoral Registration Officer shall, by beat of drum or by amplifier or by any other convenient mode, give publicity in the Panchayat area, to the fact that the roll has been published and copy thereof can be inspected free of charge at the office mentioned in sub-rule(1) during office hours.

(3) The copy referred to in sub-rule (1) shall be made available for inspection free of charge during office hours for a period of three days from the date of publication.

9. Claims to inclusion of names in the roll of territorial constituency of a Gram Panchayat. - Any person,

(a) whose name is not included in the roll of the territorial constituency of a Gram Panchayat but who is qualified to be registered in it; or

(b) whose name has been wrongly included in the roll of some other territorial constituency of Gram Panchayat; or

(c) whose name was struck off the roll by reason of any disqualification but who claims that the disqualification has since been removed:

may apply in Form 2, to the Assistant Electoral Registration Officer for the inclusion of his name in the roll.

10. Objections to entries in the roll.- Any person whose name is entered in the roll of a territorial constituency of a Gram Panchayat, and-

(a) who has objection to any particulars in such entry in respect of himself and wants to get it corrected may apply in Form 3;

(b) who objects to the inclusion of the name of any other person in the roll on the ground that he is not qualified or has been disqualified to be registered in such roll, may apply in Form 4;

to the Assistant Electoral Registration Officer for correction of the particulars, or exclusion of the name, as the case may be.

11. Period for lodging claims and objections.- Every application referred to in Rule 9 or in Rule 10 shall be made within a period of seven days from date of publication of the roll in draft under Rule 8."

A perusal of Rule 10 of the Rules, 1994 shows that any peson who has anyobjection to any particulars with regard to entries in the electoral roll may get it corrected by applying in Form 3 and any person who objects to the inclusion of the name of any other person in the roll may apply in Form 4. Under Rule 11 of the Rules, 1994 every application referred to in Rule 9 or in Rule 10 shall be made within a period of 7 days from the date of publication of the roll in draft.

There is nothing on record to show that in the present case any such objection was raised by the respondent no 3 with regard to the entries in the electoral roll or for correction in the electoral roll to remove the name of the persons who she thought were residents of other villages or who had died nor is there any pleading in the election petition to that effect.

In this view of the matter, on this count the respondent no. 3 had no right to raise any objection with regard to preparation of the electoral roll after the election had already been completed and the resolution had been declared.

The Supreme Court in the case of Inderjit Barua and others Vs. Election Commission of India AIR 1984 SC 1911 has held in paragraph 3 as under:

"3. We are of the view that once the final electoral rolls are published and elections are held on the basis of such electoral rolls, it is not open to anyone to challenge the election from any constituency or constituencies on the ground that the electoral rolls were defective. That is not a ground available for challenging an election under Section 100 of the Representation of People Act, 1951. The finality of the electoral rolls cannot be assailed in a proceeding challenging the validity of an election held on the basis of such electoral rolls vide Kabul Singh v. Kundan Singh ( 1970 (1) SCR 845 : 1969 (2) SCC 452 : 1970 AIR(SC) 340 : 42 ELR 325). Article 329(b) in our opinion clearly bars any writ petition challenging the impugned elections on the ground that the electoral rolls of 1979 on the basis of which the impugned elections were held were invalid."

The Supreme Court in the case of Lakshmi Charan Sen and others Vs. A.K.M. Hassan Uzaman and others AIR 1985 SC 1233 has held in paragraph 18 as under:

"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 can 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 electoral roll for the time being in force must hold the field. 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."

The Supreme Court in the case of Pampakavi Rayappa Belagali Vs. B.D. Jatti and others AIR 1971 SC 1348 has held in paragraphs 9 and 10 as under:

"9. The other provisions relating to election are contained in Part XV of the Constitution. Article 324 deals with the superintendence, direction and control of elections which are vested in the Election Commission. Article 325 declares that no person shall be ineligible for inclusion in an, Electoral Roll on account only of religion, race, caste, sex or any of them. Article 326 says that the elections to the House of the People and the Legislative Assemblies of States shall be on the basis of adult franchise. Article 327 gives power to the Parliament to make provisions with respect to elections to Legislatures. Article 329 bars the interference of courts in electoral matters. By virtue of that Article no election shall be called in question except by an election petition. It is abundantly clear that in the present case the question whether respondent No. 1 was ordinarily resident in Jamkhandi constituency during the material period and was entitled to be registered in the Electoral Roll could not be the subject matter of enquiry except in accordance with the provisions of the Act of 1950. The grounds on which the election can be declared to be void under the Act are set out in s. 100 of the Act. Clause (d) is "that the result of the election, in so far as it concerns a returned candidate, has been materially affected-(i)............... (ii)............ (iii)...............(iv) by any non-compliance with the pro- visions of the Constitution or of this Act or of any rules or orders made under this Act." Nothing could be clearer than the ambit of this provision. It does not entitle the court in an election petition to set aside any election on the ground of non-compliance with the provisions of the Act of 1950 or of any rules made thereunder, with the exception of s. 16.

10. The learned trial judge does not appear to have fully and properly appreciated the correct ratio and true determination of the points involved in Durga Shanker Mehta's(1) case. The distinction is too obvious to bear repetition. It seems that a Bench decision of the Mysore High Court in K. Sriramulu v. K. Deviah(2) was distinguished without any justification by the learned judge. It was clearly laid therein that in an election petition the correctness of the Electoral Roll cannot be gone into. The decision of a Full bench of the Punjab and Haryana High Court in Roop Lal Mehta v. Dhan Singh & Others(1) about the finality of the Electoral Roll was, also not noticed. In this view of the matter the evidence relating to issue No. 1(a) becomes wholly irrelevant and redundant. The decision on that issue in favour of respondent No. 1, is, however, affirmed."

A Division Bench of this Court in the case of Om Prakash and another Vs. State of U.P. and others reported in 2010 (9) ADJ 753 (DB) (LB) has held in paragraphs 3,4 and 5 as under:

"3.From the aforesaid discussions and conclusions, it is obvious that a defective electoral roll would not be a ground for challenging the election by way of an election petition. Sri C. B. Pandey also referred to Section 12-C of the U.P. Panchayat Raj Act, 1947 which contains specific grounds for challenging the Panchayat elections. The Section reads like:

"Section 12-C Questioning of elections.

(1) The election of Pradhan and member shall be questioned by an application presented to the prescribed authority within such time as may be prescribed on the grounds that:-

a) the election has not been free by reason of corrupt practice, or

b) the result of election has been materially affected by improper acceptance or rejection of any nomination or gross failure to comply with the provisions of this Act or the rules.

(2) This application may be presented by any candidate at

the election or any elector.

(3) The disposal of application maybe by summary hearing.

(4) The revision against the order of the prescribed authority may be filed within thirty days before the District Judge. The decision of the revising authority shall be final.

4. The aforesaid provisions of the Act also do not provide that a defective electoral roll can be a ground for challenging Panchayat elections.

5. In this back ground, now the question that would arise for consideration of the Court is as to whether the petitioners are entitled to get the reliefs as prayed for in the writ petitions even after the stage of filing of nomination papers. The petitioners allege that they would be deprived of opportunity to exercise their right to vote because of some commissions or omissions on the part of authorities concerned. It is also a settled law as laid down in the decision of Supreme Court hereinabove that a defective electoral roll would not be a ground for laying challenge to any election. Thus while taking into account the totality of circumstances as detailed in the writ petitions, we are of considered view that the petitioners deserve the reliefs to the extent of voting rights in exercise of our powers under Articles 226 and 227 of the Constitution of India. Moreover, there are some cases where the representations were submitted either before or around or immediately after issuance of election notification but the electoral rolls were not modified or suitably corrected for the reasons better known to the authorities. Thus, we dispose of all such writ petitions impugning the question of modification/correction in the electoral rolls with directions that the authorities shall decide the pending representations/ applications/appeals on merit before the scheduled dates of voting."

Considering the matter in its entirety and particularly with regard to the facts of the present case with reference to the law laid down by the Supreme Court in the cases of Inderjit Barua (supra), Lakshmi Charan Sen (supra) and Pampakavi Rayappa Belagali (supra), the petitioner never having raised any objection against the preparation of the electoral roll in the manner provided in the Rules, 1994 it is not open for her now after the election has already been completed and the result declared to challenge the same on the ground that the electoral roll had not been correctly prepared and it contained names of persons belonging to other villages of persons who had died.

The finding of the Prescribed Authority that out of 10 deceased persons 3 were found alive is equally astonishing. If there were 10 deceased persons how could 3 be alive.

Learned counsel for the respondents has placed reliance upon certain judgments which are all on the question of recounting and do not specifically answer the question as to whether an election petition can be filed questioning the electoral roll after the election had already been finalized and the result declared. Therefore, these judgments referred to by the learned counsel for the respondents have absolutely no application to the facts of the present case.

For reasons aforesaid, the impugned order dated 31.7.2017 is absolutely illegal and arbitrary and cannot survive being contrary to the law laid by the Supreme Court in the case of Inderjit Barua (supra), Lakshmi Charan Sen (supra) and Pampakavi Rayappa Belagali (supra) and is accordingly quashed.

The writ petition stands allowed.

Dated: 04th May, 2018.

o.k.