Andhra Pradesh High Court - Amravati

Naidu Chandrika vs The Election Commission Of India on 2 February, 2024

Author: Ninala Jayasurya

Bench: Ninala Jayasurya

                                 1




IN THE HIGH COURT OF ANDHRA PRADESH::AMARAVATI
     THE HON'BLE SRI JUSTICE NINALA JAYASURYA
  WRIT PETITION Nos. 32045, 32986 of 2023, 306, 323,
381, 384, 396, 632, 663, 829, 831, 835, 855, 857, 858 and
                           860 of 2024

W.P.No.306 of 2024:

Between:-

Batchina Gouthami and others
                                                     ....Petitioners.
                                And

The Election Commission of India rep. by
its Chief Election Commissioner and
others
                                               ....     Respondents

Counsel for the Petitioners     : Ms.Pilla Yeswani

Counsel for the Respondents: Mr.Avinash Desai, Senior Counsel
                             Mr.D.S.Siva  Darshan,     Standing
                             counsel

COMMON ORDER:

In the present batch of writ petitions, the petitioners

are seeking to declare the action of the respondents in

conducting enquiry on Form-7s, objecting to the names of the

petitioners in Electoral Rolls of Parchuru Assembly

Constituency and further deleting the names of the petitioners

from the online electoral rolls without any order or reason as

illegal, arbitrary, violative of principles of natural justice and

for consequential directions. Some of the petitioners are also

challenging the specific orders by amending the prayer.

2) In W.P.Nos.306 and 323 of 2024, this Court passed

an order dated 05.01.2024, granting interim directions as

prayed for. Seeking to vacate the said interim orders the

respondents filed vacate stay petitions along with the relevant

material.

3) At the time of considering these two writ petitions, the

learned counsel for the petitioners made a request to dispose

of all the cases since the contentions raised are same.

Accordingly, W.P. No.306 of 2024 has been taken up as the

lead case and this batch is disposed of by this Common order

with the consent of the both sides.

4) At the outset, it may also be relevant to state that in

all these writ petitions wherein the petitioners sought to

contend that their names have been deleted from the voters

list illegally, as per the respondent officials, individual orders

deleting the names of the petitioners from the Electoral Roll

have been passed for the reasons specified therein.

5) For the sake of clarity, it may be pertinent to note

that only in W.P.Nos.381, 636, 663, 829 and 858 of 2024 the

petitioners sought amendment of prayer and challenged the

proceedings of deletion passed by the 4th respondent-Electoral

Registration Officer of Parchur Assembly Constituency.

6) In the other writ petitions i.e., W.P. No.306 and 323,

wherein vacate stay petitions have been filed and

W.P.No.32045 of 2023 wherein a counter is filed and

W.P.Nos.632, 384, 396, 831, 835, 855, 857 and 860 of 2024

no steps have been taken to challenge the orders deleting the

names of the petitioners from the electoral roll.

7) Further in W.P.No.384, 396, 632, 831, 835, 855, 857

and 860 of 2024, the learned counsel for the Election

Commission obtained instructions from the concerned officers

and placed the same for perusal of this Court, wherein specific

details with reference to the orders passed deleting the names

of the petitioners in the said writ petitions and service of the

same, to some of the petitioners through registered post/by

hand to them/their family members etc., are stated. The said

instructions would also go to show that the names of some of

the petitioners are retained in the electoral roll after due

enquiry. The said instructions are placed on record and for

the sake of brevity, all the details are not mentioned herein.

8) Reverting back to the main issue with regard to the

deletion of the names of the petitioners from the electoral roll,

the contentions raised by the respective parties may be set out

hereunder.

SUBMISSIONS OF PETITIONERS' COUNSEL:

9) Ms. Pilla Yeswani, learned counsel for the petitioners

advanced extensive arguments on the basis of the averments

made in the writ petitions. It is her main contention that the

respondent authorities, more particularly, the 4th respondent

acted in gross violation of principles of natural justice in

deleting the names of the petitioners from the electoral roll.

She submits that all the petitioners are permanent residents of

different villages / areas as stated in the individual writ

petitions and are provided with Electoral Photo Identity Card

(EPIC) and are on the electoral rolls of Parchur Assembly

Constituency. She submits that entertaining Form-7

objections filed by a single individual in bulk, the 4 th

respondent contrary to para 11.3.2.(ii) of the Manual on

Electoral Rolls, 2023 (hereinafter referred to as ―Manual‖),

issued by the Election Commission of India, and the

Registration of Electors Rules, 1960 (for short ―the Rules‖)

deleted the names of the petitioners. She strenuously

contends that bulk objections by a single individual were

entertained which is impermissible and as per the said Manual

where the same person is the objector in more than 5 cases,

the Electoral Registration Officer has to cross verify the same

personally, which is not done in the present batch of cases.

Referring to some of the notices in Form-B, dated 05.09.2023

etc., learned counsel submits that the enquiry on the

objections was conducted on 23.09.2023 and orders of

deletion were passed on 28.11.2023, though in terms of the

Manual after expiry of seven days of notice period, the claims

and objections have to be disposed of immediately, but no

reasons are forthcoming for the delay in passing the orders

when the enquiry was conducted on 23.09.2023. While

stating that a copy of the report, which is the basis for the

Orders passed by the Electoral Registration Officer is not filed,

she submits that nothing is divulged in the orders of deletion

as to when such enquiry was conducted, muchless the date on

which the report was submitted. Referring to para 11.3.7 of

the manual, learned counsel would further contend that the

4th respondent is under an obligation to record not only his

decision on each claim and objection, but also give brief

reasons for the decision. She submits that the impugned

orders deleting the names of the petitioners from the electoral

roll would clearly show that no brief reasons for the decision

arrived at by the 4th respondent were mentioned, except

putting ―✓‖ against the reasons set out in stereo type in all the

orders and, therefore, the orders of deletion are not

sustainable.

10) Learned counsel for the petitioners also vehemently

contended that though the petitioners had submitted the

documents pursuant to the notices issued in Form-14, the 4th

respondent without even considering the same have passed

orders deleting the names of the concerned petitioners and the

said orders are, therefore, violative of principles of natural

justice and the same are liable to be set aside. She also

contends that in fact the concerned officers are not even giving

acknowledgment in token of receipt of the documents

submitted by the petitioners on the ground that there is no

such procedure / provision, and the letter dated nil January,

2024, which is filed along with reply to the vacate stay petition,

discloses the stand of the authorities concerned in this regard.

Contending strenuously that the right to vote is a valuable

right, guaranteed under the Constitution of India, and the

provisions of the Representation of the People Act-1951 (for

short ―the Act‖) and the Rules framed thereunder, learned

counsel would submit that the action of the 4th respondent in

deleting the names of the concerned writ petitioners through

the impugned orders is illegal and the same are liable to be set

aside on the ground of violation of principles of natural justice

and the executive instructions of the Election Commission of

India in the Manual of Electoral Rolls, 2023. Making the said

submissions the learned counsel seeks to allow the Writ

Petitions.

SUBMISSIONS OF THE RESPONDENTS' COUNSEL:

11) Mr. Avinash Desai, learned Senior Counsel appeared

through online and made his submissions on behalf of the

Election Commission of India and other respondents.

Referring to the petitions to vacate the interim orders in

W.P.No.306 and 323 of 2024 and the material filed along with

the same, he submits that at the time when the said writ

petitions were taken up for consideration on 05.01.2024, the

relevant information, with regard to passing of the orders on

the objections received in respect of the writ petitioners and

communication of the same through Registered Post could not

be brought to the notice of the Court as the instructions were

prepared in a hurry and thereby the interim order dated

05.01.2024 came to be passed, for the reasons mentioned

therein. Be that as it may. Drawing the attention of this

Court to the copies of the notices and the orders passed with

reference to the respective writ petitioners in the said writ

petitions i.e., W.P.Nos.306 and 323 of 2024, learned Senior

Counsel submits that the postal track reports and the other

material would clearly go to show that the individual orders

deleting the names of the respective petitioners were passed

prior to the filing of the said writ petitions, and in fact some of

the said orders were served on the concerned writ petitioners

and some of them were returned due to non-availability of the

addressee. He submits that the material on record would go to

show that the orders of deletion have been passed after giving

due notices to the petitioners under Rule 19 and 20 of the

Rules and therefore, the contention that the orders impugned

in some of the writ petitions are violative of principles of

natural justice deserves no appreciation.

12) Referring to the averments made in the writ affidavit,

learned Senior Counsel further contends that no specific

averment was made with reference to the non-consideration of

the documents and therefore there is no occasion to the

respondents to traverse the same in the counter affidavit. Be

that as it may. Learned Senior Counsel submits that it is not

the case of the petitioners that no notices at all were issued or

that no opportunity was afforded to the petitioners and

therefore there is violation of principles of natural justice. He

submits that against the orders of the 4th respondent an

appeal lies under Rule 23 of the Rules to the 3rd respondent

and the aggrieved petitioners can raise the contentions with

regard to non-consideration of the documents etc., before the

appellate authority. While stating that the preparation of

electoral rolls is a continuous process and it would not

conclude on the date of its publication and the inclusion and

exclusion into the voters list would go on till the last date of

nominations, he submits that once the schedule for the

nominations is ended, the list in respect of the Constituency

would attain finality and no further alteration can be made

thereafter. He submits that under the said circumstances, no

prejudice would be caused to the concerned voters, including

the petitioners and their rights are well protected under the

provisions of the Registration of Electors Rolls Rules and the

Act, wherein it contemplates an appeal under Section 24 of the

Act against the order of the Electoral Registration Officer and a

Second Appeal. He submits that as the inclusion and deletion

of the voters in the electoral roll involves examination of

factual aspects, the statutory remedies are more effective and

efficacious and therefore the writ petitions are liable to be

dismissed.

13) In so far as the other arguments with reference to the

Manual on Electoral Rolls, the learned Senior Counsel submits

that bulk objections more than Five can be made through

online, which would be verified scrupulously and criminal

action will be initiated if the objections/statements are found

to be false / incorrect. Relying on the judgment of the Hon'ble

Supreme Court of India in Lakshmi Charan Sen and Others

v A.K.M. Hassan Uzzaman and Others1 learned Senior

Counsel would further submit that the contentions with

reference to the said manual are of no consequence, as no

(1985) 4 SCC 689

justiciable rights would accrue to the petitioners if the

instructions therein are not adhered. The learned Senior

Counsel rests his arguments by stating that in the light of the

statutory provisions, the petitioners cannot have any

apprehension that the authorities would act unjustly to delete

the names from the electoral rolls despite relevant material to

the contra. He submits that if the petitioners files appeals as

provided under the statute viz., 23 (ii) of the Rules, the

appellate authority would pass orders, in accordance with law.

CONSIDERATION BY THE COURT:

14) Parliament enacted the Representation of People Act,

1950 to provide the allocation of seats in and the delimitation

of constituencies for the purpose of election to, the House of

the People and the Legislatures of States, the filling seats in

the Council of States to be filled by representatives of Union

territories and matters connected therewith. Some of the

provisions of the Act, which are relevant are referred to

hereunder:

i) Section 20 of the Act provides for the meaning of

‗Ordinarily resident‖;

ii) Section 21 of the Act contemplates Preparation and

revision of electoral rolls;

iii) Section 22 of the Act deals with Correction of entries

in electoral rolls by the Electoral Registration Officer

for Constituency on an application made to him or on

his own motion;

iv) Section 23 of the Act deals with inclusion of names in

electoral rolls;

v) Section 23 (3) of the Act stipulates that no

amendment, transposition or deletion of any entry

shall be made under Section 22 and no direction for

the inclusion of the name in the electoral roll of the

Constituency shall be given under the said Section,

after the last date for making nominations for an

election in the constituency or in the parliamentary

constituency within which that constituency is

comprised and before the completion of that election.

vi) Section 24 of the Act provides for appeal within such

time and in such manner as may be prescribed -

(a) to the (District Magistrate or Additional District

Magistrate or Executive Magistrate or District

Collector or an officer of equivalent rank), from any

order of the Electoral Registration Officer under

section 22 or section 23.

(b) to the Chief Electoral Officer, from any order of the

District Magistrate or the Additional District

Magistrate under clause (a).

15) Further, Part-II of the Registration of Electors Rules,

1960 deals with Electoral Rolls for Assembly Constituencies.

i) Rule 5 provides for preparation of Rolls in parts.

ii) Rule 10 contemplates that as soon as roll for

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 at the

places mentioned in the said rule.

iii) Rule 12 stipulates that every claim for inclusion of a

name in the roll and every objection to an entry

therein shall be lodged with 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 15

days as may be fixed by the Election Commission in

this behalf. As per the proviso, 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.

iv) Rule 13 (2) contemplates that every objection to the

inclusion of a name in the Roll shall be in Form 7 and

preferred only by a person whose name is already in

such roll.

v) Rule 14 deals with the manner of lodging claims and

objections as provided therein.

vi) Rules 19 and 20 deals with notice of hearing claims

and objections and enquiry into the claims and

objections respectively, which are extracted hereunder

for ready reference:

― 19. Notice of hearing claims and objections.--(1) Where a claim or objection is not disposed of under rule 17 or rule 18, the registration officer shall--

(a) specify in the list exhibited by him under clause (b) of rule 16, the date, time and place of hearing of the claim or objection; and

(b) give notice of the hearing--

(i) in the case of a claim to the claimant in Form 12;

(ii) in the case of an objection to the inclusion of a name, to the objector in Form 13 and to the person objected to in Form 14; and

(iii) in the case of an objection to a particular or particulars in an entry, to the objector in Form 15. (2) A notice under this rule may be given either personally or by registered post or by affixing it to the person's residence or last known residence within the constituency.

20. Inquiry into claims and objections.--(1) The registration officer shall hold a summary inquiry into every claim or objection in respect of which notice has been given under rule 19 and shall record his decision thereon.

(2) At the hearing, the claimant or, as the case may be, the objector and the person objected to and any other person who, in the opinion of the registration officer, is likely to be of assistance to him, shall be entitled to appear and be heard. (3) The registration officer may in his discretion--

(a) require any claimant, objector or person objected to, to appear in person before him;

(b) require that the evidence tendered by any person shall be given on oath and administer an oath for the purpose.‖

vii) Rule 21A provides for deletion of names:

―21A. Deletion of names.--If it appears to the registration officer at any time before the final publication of the roll that owing to inadvertence or error or otherwise, the names of dead persons or of persons who have ceased to be, or are not, ordinarily residents in the constituency or of persons who are otherwise not entitled to be registered in that roll, have been included in the roll and that remedial action should be taken under this rule, the registration officer, shall--

(a) prepare a list of the names and other details of such electors;

(b) exhibit on the notice board of his office a copy of the list together with a notice as to the time and place at which the question of deletion of these names from the roll will be considered, and also publish the list and the notice in such other manner as he may think fit; and

(c) after considering any verbal or written objections that may be preferred, decide whether all or any of the names should be deleted from the roll:

Provided that before taking any action under this rule in respect of any person on the ground that he has ceased to be, or is not, ordinarily resident in the constituency, or is otherwise not entitled to be registered in that roll, the registration officer shall make every endeavour to give him a reasonable opportunity to show cause why the action proposed should not be taken in relation to him.‖

viii) Rule 22 deals with the final publication of Roll.

ix) Rule 23 provides for Appeals from orders deciding

claims and objections.

x) Rule 27 deals with Appeals under Section 24 of the

Act.

16) The above referred provisions of law makes it clear

that the Act and the Rules are self contained, contemplates

revision of electoral rolls till the last date of nominations for

the election as provided under Section 23 (3) of the Act, while

providing sufficient safeguards by way of appeal under Section

24 (a) and a further appeal under Section 24 (b) of the Act

against the orders in respect of claims and objections for

inclusion or deletion of names from the Electoral Roll.

17) Against the back ground of these statutory provisions,

the contentions raised by the learned counsel are considered.

18) One of the prime contentions raised by the learned

counsel for the petitioners is that the orders impugned were

passed without considering the documents submitted by the

concerned petitioners. It is not the case of the petitioners that

no notices were issued at all in terms of Rules 19 and 20 of the

Rules, extracted above. As seen from the material on record, it

is apparent that the respondent authorities had issued notices

in terms of the rules and the same were received by the

petitioners or their representatives. In such circumstances,

there is no violation of statutory provisions and non-

consideration of documents, if any, which involves factual

aspects, unless it is found to be incurable calls for no

interference by this Court. Exercise of the discretionary

powers under Article 226 of the Constitution of India is not

warranted, where the aggrieved party can challenge the

correctness of the order before the statutory authorities. In

the present case, as contended by the learned counsel for the

respondents, the remedy of appeal is provided against the

impugned orders. Since it is the case of the petitioners that the

documents submitted by them have not been considered by

the 4th respondent, this Court is of the view that the same

contentions can as well be raised before the appellate authority

and since the issue involves verification of documents as also

factual aspects, the remedy of appeal is more effective. In the

event the Appellant Authority who will be in a better position

to verify the records is satisfied with the documents produced

by the petitioners which supports their case, the appellant

authority can as well set right the impugned orders /

proceedings deleting the names of the petitioners from the

electoral roll. Further no contention was raised as to why the

statutory remedy of appeal is not efficacious, in the facts and

circumstances of the case.

19) So far as the provision with regard to deletion of

names (Rule 21A) is concerned it, inter alia, provides that

before taking any action under the said Rule and as per the

proviso therein, the Registration Officer shall make every

endeavor to give the concerned persons a reasonable

opportunity to showcause why action proposed for deletion

should not be taken. In the present batch of cases the

issuance of notices, which are available on record, would make

it clear that the 4th respondent had adhered to the said

provision of law. If the petitioners are aggrieved that the 4 th

respondent had not considered their explanation or not taken

the documents into consideration, the statute provides

redressal mechanism by way of more than one appeal and this

Court is, therefore, of the opinion that the said remedy is more

efficacious.

20) In the light of the above conclusions, this Court is of

the considered view that it would be appropriate to relegate the

petitioners to the remedy of appeal instead of exercising its

powers under Article 226 of the Constitution of India to set

aside the impugned orders on the ground of violation of

principles of natural justice.

21) The learned counsel for the petitioners also made

detailed submissions with reference to the manual referred to

supra. Though the arguments with reference to the same, at

the first blush appears to be sound, in the light of the

judgment of the Hon'ble Supreme Court of India in Lakshmi

Charan Sen (1 supra) they merit no acceptance. In the said

judgment, the Hon'ble Supreme Court of India had an occasion

to deal with the questions relating to the directions issued by

the Election Commission to the Chief Electoral Officers, apart

from provisions of the Act and Rules extracted above. The

relevant portion of the judgment is reproduced hereunder for

ready reference:

"22. One of the questions which was debated before us and to which we must now turn, is whether the directions given by the Election Commission to the Chief Electoral Officers have the force of law under the Acts of 1950 and 1951. There is no provision in either of these Acts which would justify the proposition that the directions given by the Election Commission have the force of law. Election laws are self-contained codes. One must look to them for identifying the rights and obligations of the parties, whether they are private citizens or public officials. Therefore, in the absence of a provision to that effect, it would not be correct to equate with law, the directions given by the Election Commission to the Chief Electoral Officers. The Election Commission is, of course, entitled to act ex debito justitiae, in the sense that, it can take steps or direct that steps be taken over and above those which it is under an obligation to take under the law. It is, therefore, entitled to issue directions to the Chief Electoral Officers. Such directions are binding upon the latter but, their violation cannot create rights and obligations unknown to the election law. To take a simple example, if the Election Commission issues a directive to a Chief Electoral Officer to invite leaders of political parties for a meeting to consider their grievances pertaining to the

electoral roll, the failure to hold such a meeting cannot be equated with the failure to comply with the provision of a law. Leaders of political parties who were asked to be invited by the Election Commission cannot challenge the process of election on the ground that the directive issued by the Election Commission was violated by the Chief Electoral Officer. The question is not whether the directions issued by the Election Commission have to be carried out by the Chief Electoral Officers and are binding upon them. The plain answer is that such directions ought to be carried out. The question is whether, the failure on the part of the Chief Electoral Officer to comply with the directions issued by the Election Commission furnishes any cause of action to any other person, like a voter or a candidate, to complain of it. We are of the opinion that the directions issued by the Election Commission, though binding upon the Chief Electoral Officers, cannot be treated as if they are law, the violation of which could result in the invalidation of the election, either generally, or specifically in the case of an individual. In the instant case, the Chief Electoral Officer carried out faithfully the directions issued by the Election Commission. But, even if he had not, he could not be accused of disobeying a law.‖

22) In the light of the above decision of the Hon'ble

Supreme Court of India, this Court is of the considered opinion

that in the absence of violation of statutory provisions, no right

accrues to the petitioners on the ground of non-compliance

with the instructions / guidelines in the Election Manual. The

instructions/guidelines in the Manual are without any

statutory force and non-compliance of the same would not

amount to violation of statutory rights nor confer any

justiciable rights in favour of the petitioners. Therefore, the

various submissions made with reference to the Manual are

rejected.

23) At this juncture, it may be relevant to refer to the

decision of the learned Judge in W.P.No.7533 of 2020, dated

18.02.2021. It is a case where the grievance of the petitioners

therein was that their names were deleted from the electoral

roll without notice from the Electoral Registration Officer in

respect of the election to Gram Panchayat. The learned Judge

had considered the matter with reference to the Registration of

Electors Rules, 1960 extracted above and while opining that

the rules of natural justice cannot be put into straight jacket

formula dismissed the Writ Petition. The relevant portion of

the order reads as follows:

―Apart from this, this Court also notices that there is a procedure, which is clearly stipulated under the rules as framed under the Representation of the People Act, 1955 called the Registration of Electors Rules, 1960. Rule 12 of the Rules deals with the claims, which should be lodged within a period of 30 days from the date of publication of Roll. Rule 13 of the Rules deals with the forms for the lodging the claim. Rule 14 of the Rules talks the manner

of lodging claims and objections. Thereafter, the manner in which the enquiry is to be conducted etc., is stipulated. Even if the names are inadvertently included, the same can be rectified as per the Rule 21 of the Rules and as per Rule 21(A) of the Rules the deletion of the names can be considered. Finally, Rule 23 of the Rules deals with the appeals that shall lie against the decision of the officers made under the Rules 13, 20, 21 of the Rules.

This Court after considering all the submissions is of the opinion that once the Statue stipulates the method in which such claim should be lodged it should be done in that method or not at all. There is a clear procedure stipulated which has not been not followed. The alternate remedy is both sufficient and efficacious. Therefore, for all these reasons, the petitioners are not entitled to any relief at this stage.‖

24) In the light of the factual and legal position as also

the conclusions arrived at supra, the writ petitions are

disposed of leaving it open to the petitioners to challenge the

orders passed by the 4th respondent by way of statutory

appeals. In the event the petitioners choose to adopt such

course of action, the appellate authority shall entertain the

same and pass appropriate orders in accordance with law,

after giving due opportunity of hearing to the petitioners, as

expeditiously as possible, in any event, within a period of three

(03) weeks from the date of receipt of the appeals.

25) In view of the material filed along with the vacate stay

petitions, which establishes that the 4th respondent passed

orders deleting the writ petitioners from the Electoral Roll even

before filing of the said writ petitions, the interim orders dated

05.01.2024 passed in W.P.Nos.306 and 323 of 2024 are

vacated.

26) W.P.No.32986 of 2023 - as the relief sought for in this

writ petition is not similar to the batch of cases, the same is

detagged. Registry to list the matter after three weeks for filing

counter.

27) Before parting with the judgment, it may be apposite

to refer to the expressions of the Hon'ble Supreme Court of

India in Lakshmi Charan Sen case (1 supra) that ―Holding

the Elections to Legislatures and holding them according to

law are both matters of paramount importance. The basis of a

free and fair election is the voters' list prepared in accordance

with the 1950 Act and the 1960 Rules. If this not so done, the

electoral rolls will have no sanctity and the consequent election