The State Of Ap vs S V Chiranjeevi
2021 Latest Caselaw 1874 AP

      IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI


     HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                    &
              HON'BLE MR. JUSTICE C. PRAVEEN KUMAR

                     WRIT APPEAL No.146 of 2021

                   (Taken up through video conferencing


The State of Andhra Pradesh, Rep. by
its Principal Secretary to Government,
Municipal Administration Department,
Secretariat, Velagapudi & another
                                                             .. Appellants
            Versus
S.V.Chiranjeevi, S/o Appa Rao, aged
about 52 years, Occ : Business, R/o
D.No. 20 F-3-6/2, Janapareddyvari
Street, Kothapeta, Eluru, West Godavari
District & 4 Others

                                                          .. Respondents

Counsel for the Appellant            : Advocate General

Counsel for Respondents             : Mr. Posani Venkateswarlu

Dates of hearing                    :    09.04.2021 and 19.04.2021

Date of pronouncement                :   07.05.2021

                             JUDGMENT

(per C. Praveen Kumar, J)

1. The short question that arises for consideration in this appeal is

whether the electoral roll, which is sought to be made the basis to

conduct elections to Eluru Municipal Corporation, is in conformity with

law ?

2. Pointing out the mistakes in the alleged draft electoral roll

published on 03.02.2020 and the final list on 05.02.2020, without

taking into consideration the objections raised by the writ petitioners

and their representation dated 17.02.2020, as bad in law, Writ

petition No.3876 of 2020 came to be filed. By its judgment dated

05.03.2020, the learned Single Judge allowed the Writ Petition,

directing the respondents to rectify the errors and the illegalities

pointed out by the petitioners, before issuing the notification, to

conduct fair and free elections to Eluru Municipal Corporation. The

advance order reads as under :

"ADVANCE ORDER :

In the result, the writ petition is allowed, directing the respondents to rectify the errors and illegalities pointed out by the petitioners, before issuing notification to conduct fair and free elections in Eluru Municipal Corporation without waiting for copy of this order, as requested by the Learned Government Pleader for Municipal Administration, so as to proceed with the process of rectification of errors in Electoral Roll of Eluru Municipal Corporation.

Detailed Order follows."

3. Later on, a detailed order was made available. A reading of

the same would show that after considering the rival contentions

advanced and perusing the material available on record, the learned

Single Judge formulated two points for consideration, which are as

under :

"1) Whether the defects pointed out by the petitioners in the voters list causes prejudice to the rights of any electors or political party or the candidates to be contested in the ensuing election of the Eluru Municipal Corporation?

2) Whether the Bar under Article 243 (z)(g) of the Constitution of India disentitles to claim relief in the writ petition."

In so far as point No.1 is concerned, the learned Single Judge

after referring to the material placed before the Court held as under :

"The irregularities pointed out by the petitioners narrated above are serious in nature which vitiates the fair and free elections to various divisions of Eluru Municipal Corporation, it is suggestive of administrative anarchy. This itself is suffice to exercise power under Article 226 of the Constitution of India to issue a direction to the respondents to rectify the mistakes in the voters list. Accordingly, the point is held in favour of the petitioners and against the respondents."

Coming to the second issue, namely, as to the maintainability

of the writ petition, the learned Single Judge, after referring to the

judgments of the Apex Court in Lakshmi Charan Sen v. A.K.M.

Hassan Uzzaman and West Bengal Central School Service

Commission v. Abdul Halim 2 held as under :

AIR 1985 SC 1233

2019 (9) SCALE 573

"By applying the principle laid down in the above judgments to the present facts of the case, the procedure followed by the electoral registration authority is contrary to various provisions referred above. In such case, this Court can exercise power of judicial review under Article 226 of the Constitution of India. Accordingly, the point is answered in favour of the petitioners and against the respondents."

4. A perusal of the order also goes to show that learned Single

Judge, while pointing out the irregularities, in respect of door

numbers; showing less number of voters in few divisions; no proper

representation to B.Cs., S.Cs., S.Ts. in various divisions and a dog

shown as a voter in the voters' list of 13th division, held that the

irregularities noted above are not only serious in nature, which

vitiates fair and free elections to various divisions of Eluru Municipal

Corporation, but also contrary to the provisions of Representation of

the People Act, 1950; Municipal Corporation Act, Andhra Pradesh

Municipal Corporation (Preparation and Publication of Electoral Rolls)

Rules, 2001 (G.O.Ms.No.515 MA & UD Election-I Department, dated

05.10.2001); and the Registration of Electors Rules, 1960.

5. In other words, the learned Single Judge held that though Rule

12 of Registration of Electors Rules, 1960 prescribe objection to an

entry or claim, be laid within a period of 30 days from the date of

publication of the Draft Rules under Rule 10 of Electors Rules, 1960

or for a shorter period of not less than 15 days as fixed by the

Election Commission, but the respondents in a hurried manner

published the voters list without taking into consideration the

objections raised by the writ petitioners. It has been also held that

while the draft roll was published on 03.02.2020, calling for

objections, the final list came to be published on 05.02.2020 itself

without waiting for the objections from the objectors/claim petitioners

in terms of Rule 12 of Registration of Electors Rules, 1960.

Accordingly, the learned Single Judge allowed the Writ Petition

directing the respondents to rectify the errors & illegalities pointed

out by the petitioners before issuing the notification.

6. Adverting to the findings given by the learned Single Judge,

Sri S.Sriram, the learned Advocate General for the State of Andhra

Pradesh, which has preferred this Appeal, would submit that the

entire judgment proceeded on an erroneous factual aspect. He

submits that there is no material on record to show that voters' list

that was published on 03.02.2020 was a draft voters list under Rule

10 of Registration of Electors Rules, 1960.

7. He took us through the material on record to show that the

electoral list published on 03.02.2020 was the final voters list, the

objections called thereto were received and the same were looked

into as required under Section 12 of the Municipal Corporation Act

and Rule 6 of the Registration of Electors Rules, 1960. Referring to

Section 12 of the Municipal Corporation Act, he submits that the said

Section deals with preparation, revision and publication of electoral

roll for the assembly (ward) published under Representation of the

People Act, 1950, as revised and amended under the said Act, up to

the qualifying date, which is 01.01.2019. Referring to the proviso to

Section 12(1) of the Municipal Corporation Act, 1955, he submits that

any amendment, transposition or deletion of any entry in the

electoral roll or any inclusion of the name in electoral roll of the

assembly constituency, made by the Electoral Registration Officer

under Section 22 or Section 23 of the Representation of the People

Act, 1950 up to the date of election notification, for any election held

under this Act, shall be carried out in the roll of the Corporation. In

view of the above, he submits that the electoral roll published on

03.02.2020 is the final list and not a draft roll as held by the learned

Single Judge. He further submits that the electoral roll published on

03.02.2020 is merely a reproduction of the final roll dated

01.01.2019.

8. He further submits that Rule 10 of Registration of Electors

Rules, 1960 deals with publication of roll in draft for the elections to

the Assembly. According to him, a reading of Rule 10, coupled with

Rules 2 & 3, where the words "roll" and "constituency" are defined,

would inter alia postulate that draft roll, as required to be published

under rule 10, relates to assembly constituencies only. He also

referred to Andhra Pradesh Municipal Corporation (Preparation and

Publication of Electoral Rolls) Rules, 2001 and the Form-1 issued

under the said Rules, which is in terms of Section 12 of the Municipal

Corporation Act.

9. Having regard to the proviso to Section 12 (1) of Municipal

Corporation Act, learned Advocate General would submit that the

objections, dated 07.02.2020, received to the electoral roll, dated

03.02.2020, were considered up to the date of notification, which was

on 09.02.2020. In so far as proceedings, dated 05.02.2020, he

would submit that, it only refers to declaring the polling stations,

returning officer etc., and that the same has nothing to do with the

electoral roll. Learned Advocate General also relied upon the

judgment of the Hon'ble Apex Court in Lakshmi Charan Sen And

Ors. Etc. vs. A.K.M.Hassan Uzzaman and Ors. (1 supra) to show

that even if there are some defects in the electoral roll, the validity or

continued operation of the said electoral roll shall not get affected.

10. Sri Posani Venkateswarlu, learned counsel for the Writ

Petitioners, submits that the Writ Appeal itself is not maintainable.

According to him, learned Single Judge directed the District Collector,

West Godavari District, to rectify the errors and the illegalities pointed

out by the writ petitioners before issuing notification for holding free

and fair elections, but the same was not challenged by the District

Collector, instead, the State and the Eluru Municipal Corporation

preferred the Writ Appeal, which is not maintainable. Coming to the

merits of the case, he would submit that the mistakes, as existed,

were not corrected and the objections raised by the Writ Petitioners

were never taken into consideration before issuing the final

notification. He took us through the order of the learned Single

Judge in I.A. No.2 of 2021 in W.P.No.4110 of 2021, to show that the

errors in the voters list were not corrected, in spite of a specific

direction by this Court, in the order impugned in the writ petition,

though more than a year has elapsed from the date of the order.

Learned counsel also pointed out as to how the mandatory

requirements under Andhra Pradesh Municipal Corporation

(Preparation and Publication of Electoral Rolls) Rules, 2001 and

Municipal Corporation Act were not complied with.

11. In reply, the learned Advocate General submits that the State

as well as the Municipal Corporation, who were parties to the Writ

Petition, were aggrieved by the orders passed and as such there is no

bar for challenging the same, as the order came to be passed

misconstruing the provisions of law. In view of the above he submits

that the argument of the counsel for the Writ Petitioners that Writ

Appeal itself is not maintainable may not be correct.

12. In so far as the maintainability of the Writ Appeal at the

instance of the State is concerned, it is to be noted here that the

State of Andhra Pradesh, represented by its Principal Secretary to

Government, Municipal Administration Department, Secretariat and

the Eluru Municipal Corporation were parties to the Writ Petition. A

perusal of the operative portion of the order would show that a writ

of Mandamus was issued directing the "respondents" to rectify the

errors and illegalities pointed out by the petitioners before issuing a

notification to conduct fair and free elections in Eluru Municipal

Corporation. It would be appropriate to extract the same, which is as

under :

"In view of my foregoing discussion, I find that it is a fit case to allow the writ petition by issuing Writ of Mandamus, directing the respondents to rectify the errors and illegalities pointed out by these petitioners mentioned above, before issuing notification to conduct fair and free elections in Eluru Municipal Corporation."

13. As the respondents were directed to rectify the errors &

illegalities, as noticed supra, it cannot be said that the appeal filed by

the State of Andhra Pradesh, represented by its Principal Secretary to

Government, Municipal Administration Department, Secretariat and

the Eluru Municipal Corporation, who were shown as respondents in

the Writ Petition, is not maintainable.

14. In so far as delay in filing the appeal, it is to be noted that the

present Writ Appeal came to be filed on 09.03.2021, though the order

impugned was passed on 05.03.2020. However, being satisfied with

the reasons given for the delay in filing the appeal, this Court by its

orders dated 18.03.2021 condoned the delay. It may be true that the

present Writ Appeal came to be filed after passing the order in I.A.

No.2 of 2021 in W.P.No.4110 of 2021, but, since the delay in filing

the appeal has been condoned, the argument of Sri Posani

Venkateswarlu that the Court ought not to have entertained the

appeal on the ground that it has been filed after the order in I.A.No.2

of 2021 in W.P.No.4110 of 2021 was passed, cannot be

countenanced.

15. In order to appreciate the rival arguments advanced on merits

of the case, it would be appropriate to refer to certain provisions of

law, which are as under :

Section 12 of the Municipal Corporations Act, 1955 reads as

under :

"12. Preparation, Revision and Publication of Electoral Roll for Corporation :-- (1) The electoral roll for the Corporation shall be prepared by the person authorised by the State Election Commissioner in such manner by reference to such qualifying date as may be prescribed and the electoral roll for the Corporation shall come into force immediately upon its publication in accordance with the rules made by the Government in this behalf. The electoral roll for the Corporation shall consist of such part of the electoral roll for the Assembly Ward published under the representation of the People Act, 1950 as revised or amended under the said Act, upto the qualifying date, as relates to the city or any portion thereof.

Provided that any amendment, transposition or deletion of any entries in the electoral roll, or any inclusion of names in the electoral roll of the Assembly Constituencies concerned, made by the Electoral Registration Officer under Section 22 or Section 23, as the case may be, of the Representation of the People

Act, 1950 (Central Act 43 of 1950) up to the date of election notification, for any election held under this Act, shall be carried out in the electoral roll of the Corporation and any such names included shall be added to the part relating to the concerned ward... ... ..."

16. Rules 3, 5 and 6 of the Andhra Pradesh Municipal Corporation

(Preparation and Publication of Electoral Rolls) Rules, 2001 read as

under :

"3. Preparation of Electoral Rolls :- The Electoral Roll for the Corporation shall be such part or parts of the current electoral roll of the Andhra Pradesh Legislative Assembly Constituencies, prepared and published under the Representation of the people Act, 1950, as relates to the Corporation, which shall be prepared by such person authorized by the State Election Commissioner, on such date as may be specified by the Election Commission, and any amendments issued to the said electoral roll of the Assembly Constituencies, thereafter, as they relate to the Corporation, upto the date of election notification, shall be carried out therein.

5. Publication of copies of electoral rolls ; (1) As soon as the roll is prepared in accordance with these rules, the same shall be divided into as many lists as there are wards as per the delimitation of wards by the person authorized under rule 3 and sufficient number of copies shall be taken and shall be published along with notice in form-I for inspection by the general public;

6. Procedure for lodging claims and objections ; All omissions of names in any part of the roll or objections to any entry in the roll, at any point of time after its publication under Rule 5, shall be settled only after a suitable amendment to the

relevant entry in the electoral roll of the Legislative Assembly Constituency is made based on which the Corporation electoral roll was prepared. Anybody wishing to prefer a claim for inclusion or deletion of any name in the roll or objection in any respect of any entry in the roll so published, shall submit a proper claim or objection under the provisions of the Registration of Electors Rules, 1960 made under the Representation of the People Act, 1950 to the Electoral Registration Officer of the concerned Legislative Assembly Constituency. Subject to the provisions of Section 12 of the Municipal Corporations Act, 1955 and based on the orders of the Electoral Registration Officer of the Assembly Constituency on such claims and objections, the person authorized by the State Election Commissioner shall carry out consequential amendments in the Electoral Roll of the Corporation upto the date of election notification. In case of any clerical or printing error or both, or when the entries deviate from the particulars of the Assembly Electoral Roll, the person authorized by the State Election Commissioner may cause such errors rectified, so as to bring it in conformity with the particulars of the Assembly Electoral roll concerned. However, the person authorized by the State Election Commissioner, shall not resort to suo motu revision of the rolls by way of deletions or additions or modifications."

17. Form-I issued under Rule 5 reads as under :

"Form-I Notice of Publication of Electoral Roll [See Rule 5]

1. Notice is hereby given that the electoral roll of the Corporation has been prepared ward-wise as per delimitation of wards in accordance with the Andhra Pradesh Municipal Corporation [Preparation and Publication of Electoral rolls] Rules, 2001 by adopting the existing entries in the relevant part

of the Electoral Roll for Legislative Assembly constituency prepared under the Representation of the People Act, 1950. The same is kept open for inspection by general public.

2. Any person who wishes to lodge any claim for including his/her name in the roll or any objection to the inclusion of a name or any objection to the particulars in any entry in the said roll, shall first get such claim or objection settled with reference to the corresponding entry in the Electoral roll of the Assembly Constituencies by lodging suitable claim or objection under the provisions of the Representation of the People Act, 1950 and the Registration of Electors Rules, 1960 made thereunder, before the Electoral Registration Officer of the concerned Assembly Constituency.

3. All orders of inclusion, deletion or corrections issued on the basis of these claims and objections by the said Electoral Registration Officer till the date of the election notification will be duly incorporated in the electoral roll of the Corporation."

18. In exercise of the powers conferred by section 28 of the

Representation of the People Act, 1950 (43 of 1950), and in

supersession of the Representation of the People (Preparation of

Electoral Rolls) Rules, 1956, the Central Government, after consulting

the Election Commission, made the following rules,

namely :--

"The Registration of Electors Rules, 1960"

19. Rule 2 (1) (e) of the Registration of Electors Rules, 1960 reads

as follows :

"2. Definitions and interpretation.--(1) In these Rules, unless the context otherwise requires,--

... ... ...

(e) "roll" means the electoral roll for a constituency;"

20. Rule 3 of the Registration of Electors Rules, 1960 reads as

follows :

"3. Meaning of constituency.--In this Part "constituency" means an Assembly constituency."

21. Rules 10 and 12 of the Registration of Electors Rules, 1960 read

as under :

10. Publication of roll in draft.-- As soon as the roll for a constituency is ready, the registration officer shall publish it in draft by making a copy thereof available for inspection and displaying a notice in Form 5--

(a) at his office, if it is within the constituency, and

(b) at such place in the constituency as may be specified by him for the purpose, if his office is outside the constituency; or in the official website of the Chief Electoral Officer of the concerned State :

Provided that where such draft contains names of overseas electors, the copies of such rolls shall also be published in the Electronic Gazette or in the office website of the Chief Electoral Officer of the concerned State.

12. Period for lodging claims and objections.-- Every claim for the inclusion of a name in the roll and every objection to an entry therein shall be lodged within a period of

thirty days from the date of publication of the roll in draft under rule 10, or such shorter period of not less than fifteen days as may be fixed by the Election Commission in this behalf :

Provided that the Election Commission may, by notification in the Official Gazette, extend the period in respect of the constituency as a whole or in respect of any part thereof."

22. A reading of Section 12 of the Hyderabad Municipal

Corporation Act goes to show that electoral roll for the Corporation,

shall consist of such part of the electoral roll of the assembly

published under Representation of the People Act, 1950, as revised or

amended under the said Act, up to the qualifying date, which is, in

the instant case, 01.01.2019. The fact that the qualifying date is

01.01.2019 is not in dispute. Proviso to Section 12(1) contemplates

that any amendment, transposition or deletion of any entries in the

electoral roll or any inclusion of name in electoral roll of the assembly

constituency, made by the Electoral Registration Officer under the

Representation of the People Act, 1950 up to the date of election

notification, for any election held under this Act shall be carried out in

the electoral roll of the Corporation.

23. Therefore, Section 12 of the Municipal Corporation Act, 1955

postulate that the electoral roll to the elections of the Corporation

consists of such part of the electoral roll for the assembly published

under the Representation of People Act, as revised and amended

under the said Act, up to the qualifying date. A reading of proviso to

Section 12(1) of Municipal Corporation Act, 1955 makes it very clear

that any amendment, transposition or deletion of any entry in the

electoral roll or any inclusion of the name in electoral roll of the

assembly constituency is concerned made by the Electoral

Registration Officer under Section 22 or Section 23 of the

Representation of the People Act, 1950, up to the date of election

notification, for any election held under this Act shall be carried out in

the roll of the Corporation and any such inclusion shall be added to

the part relating to the concerned ward. Therefore, any amendment

or deletion or transposition shall only be to the electoral roll that is

prepared under the Representation of People Act, 1950, up to the

qualifying date, which is 01.01.2019.

24. Rule 3 of the Andhra Pradesh Municipal Corporation

(Preparation and Publication of Electoral Rolls) Rules, 2001 spells out

that the electoral roll for the Corporation shall be such part or parts of

the current electoral roll of the Andhra Pradesh Legislative Assembly

constituencies, prepared and published under the Representation of

People Act, 1950 and any amendments to the said electoral roll of the

assembly constituencies, thereafter, as they relate to the Corporation,

up to the date of election notification, shall be carried out therein. As

soon as the roll is prepared, the same will be published along with

the notification in Form-I for inspection by general public under Rule

5, which in the instant case was done on 03.02.2020. Section 6 deals

with the procedure for lodging of claims/objections, which obviously

will be after publication of electoral roll in Form-I.

25. Therefore, from a reading of Section 12(1) of the Municipal

Corporation Act and the Rules for Preparation and Publication of

Electoral Rolls, 2001, it is very much clear that electoral roll for the

Corporation shall be part or parts of electoral roll of A.P. Legislative

Assembly constituency prepared and published under the provisions

of the Representation of People Act, 1950 and such roll shall be

published under Rule 5 along with the notice in Form-1 for inspection

of general public and their objections, if any, be called for.

26. The question is now whether the authorities have to wait for 30

days or 15 days, as the case may be, from the date of publication of

draft roll under Rule 10 of the Registration of Electors Rules, 1960?

It is to be noted here that Municipal Corporation Act, 1955 or the

Rules made thereunder, does not anywhere refer to any draft roll.

The word 'draft roll' figures in the Registration of Electors Rules,

1960, which was promulgated in exercise of power under Section 28

of Representation of the People Act, 1950 by the Central

Government, after consulting the election commission. The word

"roll" is defined in Section 2(e) of the Act, which means electoral roll

for a constituency and Rule 3 defines "constituency" as an assembly

constituency. As per Rule 4, the roll for each constituency shall be

prepared in such form and in such language or languages as the

Election Commission may direct.

27. Reading of the above would clearly show that these rules came

to be promulgated for the preparation of electoral roll to the

assembly constituency. Rule 10, which we have referred to earlier,

states that as soon as roll for a assembly constituency is ready, a

draft of which shall be published by the registration officer by making

a copy thereof available for inspection and displaying notice in Form-

5, (a) at his office, if it is within the constituency and (b) at such

place in the constituency as may be specified by him for the purpose,

if his office is outside the constituency. Under Rule 12 any claim for

inclusion of names in the roll and every objection to an entry therein

shall be laid within 30 days from the date of publication of the roll in

draft under rule 10, or such shorter period of not less than fifteen

days as may be fixed by the Election Commission. Reading of these

two provisions, along with Rule 2(e), Rules 3 and 4 of Registration of

Electoral Rules, 1960 makes it clear that the Registration of Electors

Rules, 1960, which are promulgated in exercise of powers under

Section 28 of Representation of the People Act, 1950, are for

preparing electoral rolls for the assembly constituency and admittedly

in the State of Andhra Pradesh the roll for the assembly constituency

was published on 01.01.2019, which was qualifying date for the

assembly elections. The very same list is now being used/adopted for

elections to the Corporation and any additions or objections shall only

be to the said electoral roll. Further, there is no material on record to

show that any objections were raised to the roll that was published

on 01.01.2019. Having regard to the above, we find force in the

argument of the learned Advocate General, to hold that the electoral

roll, published on 03.02.2020 under Rule 5 of Andhra Pradesh

Municipal Corporation (Preparation and Publication of Electoral Rolls)

Rules, 2001 and objections to the said list were called for in Form-1,

is the final electoral roll. Further, as observed earlier, the period of

30 days or 15 days prescribed for raising the claim/objections relate

to rolls prepared for the assembly constituency and the same cannot

be read into the objection to be filed under the provisions of A.P.

Municipal Corporation (Preparation and Publication of Electoral Rolls)

Rules, 2001, more so, when the said rules are silent on that aspect.

28. Coming to the proceedings dated 05.02.2020, it would be apt

to extract the relevant portion of the same, which is as under : -

"The State Electoral Commission, cited in the index, has declared the polling stations in all 50 divisions of the municipal corporation by their respective ward's Returning Officers by their orders. Then a copy of the list of all polling stations will be attached to this letter along with instructions and suggestions on the list. On 07/02/2020, the meeting was held in the Chamber of the Commissioner of Municipal Council for the 4:00 PM."

29. A perusal of the same would clearly demonstrate that the said

proceedings relate to polling stations in the Division of the

Corporation and posting of returning officers, for which a meeting

was convened. It no where refer to any election roll being published

on that day.

30. At this stage, it would be appropriate to look into the letter

dated 07.02.2020 addressed to the Commissioner, Eluru Municipal

Corporation by the President of TDP, Eluru, which reads as under :

"TELUGU DESAM PARTY Eluru Constituency

Date : 07.02.2020

To The Commissioner, Eluru City Corporation.

Subject : Urban Planning Department - Declaration of Polling Station under the Municipal Corporation - Objection.

Index : State Election Commission's Circular No.99/SEC-

F1/2019, Date : 31.01.2020 and ROC No. 1509566/2019/G1, Date : 05.02.2020.

------------

Sir

Following your letter, objections have been made to the polling stations of 50 divisions within the Eluru Municipal Council. In our review, we found that the division of the 50 divisions of the Eluru municipality had many shortcomings. And it is well known in our observation that caste counts are not properly done in the voters list.

Therefore we demand the division of the divisions and the proper handling of caste.

Your's Obediently Kollepalli Raju The President of the Telugu Desam Party.

Eluru City"

31. This letter, in our view, though vague, but, was made the basis

to take into consideration the objections received. The objections

raised in the letter dated 07.02.2020, were said to have been taken

into consideration by the date of issuance of election notification, for

the elections to the Municipal Corporation, which was on 09.02.2020.

The same is evident from the two orders passed in W.P.No.3876 of

2020 and in I.A. No.2 of 2021 in W.P.No.4110 of 2021. During the

course of the argument, the learned Advocate General submitted that

the advance order in W.P.No.3876 of 2020 was received on

05.03.2020 itself and immediately thereafter steps were taken to

make necessary corrections. According to him, about 15,000

corrections are made in the voters list. In order to appreciate the

same, it will be useful to refer to the contents of both the orders.

In the order impugned in this Writ Appeal, the learned Single

Judge referred to the discrepancies in the voters list by referring to

cases, where though voter's name, his father's name, age, ward and

photograph are correctly shown, but in the column, house number, it

was mentioned as '00' or '000'. The learned Judge also points out to

a case where dog was shown as a voter and an instance wherein, in

the 8th division, the name of a voter, by name, Poorna Venkata Sai

Mahesh Sannidhi, was shown more than once at different serial

numbers, apart from the names of some voters being shown in

different polling stations.

But, in the order dated 08.03.2021 passed in I.A.No.2 of 2021

in W.P.No.4110 of 2021, the learned Single Judge, after seeing list of

voters furnished in a compact disc, prepared after carrying out

necessary corrections, observed that some errors still exist, but,

however, does not refer to the existence of the anomalies pointed out

by the learned Single Judge in W.P.No.3876 of 2020 i.e., existence of

a dog as a voter in the voters list, the name of Poorna Venkata Sai

Mahesh Sannidhi existing at different serial numbers in the voters list,

apart from voters being shown in more than one polling stations as

indicated in the earlier order. However, found some errors in house

numbers even in the corrected list. From the above observations it is

very clear that errors in the voters list were rectified and as such the

argument of the learned Advocate General that substantial number of

errors were corrected after receipt of the advance order and the

errors pointed out are individual grievances, which a voter has to get

it corrected, cannot be brushed aside.

32. Be that as it may, at this stage, it would be just and proper to

refer to paras 17 to 19 of the judgment of the Hon'ble Apex Court in

Lakshmi Charan Sen And Ors. Etc. vs. A.K.M.Hassan Uzzaman

and Ors., (1 supra) which are as under :

"17. The fundamental error from which the writ petition suffers is this : The fact that the revision of electoral rolls, either

intensive or summary, is undertaken by the Election Commission does not have the effect of putting the electoral roll last published in cold storage. The revision of electoral rolls is a continuous process which has to go on, elections or no elections. For example, the revision of electoral rolls has to be undertaken under Section 21 of the Act of 1950, whether or not an election is impending. Sub-section (1) of Section 21 provides that the "electoral roll for each constituency shall be prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under this Act." Sub-section (2) of Section 21 provides for the revision of the electoral roll prepared under Sub-section (1). The proviso, which is important, says that if the electoral roll "is not revised as aforesaid", the validity or continued operation of the "said" electoral roll shall not be affected. The controversy whether the proviso governs Clause (b) of Section 21(2) only or whether, it applies to Clause (a) of that section also is futile, though it may be interesting from the point of view of a text-book writer on the 'Interpretation of Statutes'. The crux of the matter is that if an electoral roll is not revised, its validity and continued operation remain unaffected, at least in a class of cases. That exemplifies an important principle which applies in the case of electoral rolls.

18. Section 21(3) of the Act of 1950 confers upon the Election Commission the power to direct a special revision of the electoral roll. The proviso to that Sub-section also says that until the completion of the special revision so directed, the electoral roll for the time being in force shall continue to be in force. That proves the point that Election laws abhor a vacuum. Insofar as the electoral rolls are concerned, there is never a moment in the life of a political community when some electoral roll or the other is not in force.

19. 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."

33. In P.T.Rajan v. T.P.M.Sahir and Others the Hon'ble Apex

Court observed as under :

"48. Furthermore, even if the statute specifies a time for publication of the electoral roll, the same by itself could not have been held to be mandatory. Such a provision would be directory in nature. It is a well-settled principle of law that where a

(2003) 8 SCC 498

statutory functionary is asked to perform a statutory duty within the time prescribed therefor, the same would be directory and not mandatory. (See Shiveshwar Prasad Sinha v. District Magistrate of Monghyr 4, Nomita Chowdhury v. State of W.B.5, and Garbari Union Coop. Agricultural Credit Society Ltd. V. Swapan Kumar Jana 6.)

34. From the above two judgments, it is also clear that preparation

of Electoral Roll is a continuous process and even if a revision of

Electoral Roll is not complete, the electoral roll, for the time being in

force, must hold the field and the Election cannot be postponed for

non-consideration of certain claims & objections.

35. For the aforesaid reasons, the finding of the learned Single

Judge that the electoral roll that was published on 03.02.2020 is a

draft roll is incorrect. Further, there is no material on record to show

that a voters list was published on 05.02.2020. As observed earlier,

the proceedings dated 05.02.2020 relate to a meeting that was

convened for declaration of polling stations in 50 divisions of the

Corporation by the respective wards and the returning officers for the

said polling stations and the period of 30 days or 15 days prescribed

for raising objections relate to draft rolls prepared for the assembly

constituency as per Registration of Electors Rules 1960.

AIR 1966 Pat 144

(1999) 2 Cal LJ 21

(1997) 1 CHN 189

36. Hence, the Writ Appeal is allowed and the order dated

05.03.2020 passed by the learned Single Judge in W.P.No.3876 of

2020 is set aside. No order as to costs.

All the pending miscellaneous applications, if any, are closed.

ARUP KUMAR GOSWAMI, CJ                        C. PRAVEEN KUMAR, J


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