Smita Ravindra Wagh vs State Of Maharashtra
2013 Latest Caselaw 151 Bom

                                                         WP/9099/2013
                              1

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD




                                                              
               WRIT PETITION NO. 9099 OF 2013




                                      
     Smita Ravindra Wagh
     Age 33 years, Occ. Household,
     R/o Methi, Taluka Sindhkheda,




                                     
     District Dhule.                           ..Petitioner

     Versus

     1. State of Maharashtra




                           
     Through Secretary,
     Rural Development Department,
                 
     Mantralaya, Mumbai.

     2. District Revenue Collector,
                
     Collector Office, Dhule.

     3. Electoral Registration Officer
     and Tahsildar, Sindhkheda,
     District Dhule.
      


     4. Maharashtra State 
   



     Election Commission, 
     New Administrative Building,
     Madam Kama Road,
     Hutatma Rajguru Chowk,





     Mumbai 32,
     Through it's Commissioner.

     5. Zilla Parishad, Dhule
     Through its Chief Executive





     Officer.                                  ..Respondents

                             ...
     Advocates appearing for :

     Petitioner: Shri N.L.Choudhari
     Respondents 1 & 2 : Shri S.K. Tambe,AGP
     Respondent No.3 : Shri Alok Sharma, ASGI.
     Respondent 4: Shri U.S.Malte 
     Respondent 5: Shri D.S. Bagul
                             ...



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                                                               WP/9099/2013
                                   2

                           CORAM :  A.H.JOSHI AND 




                                                                   
                                    RAVINDRA V. GHUGE, JJ.

                           Reserved on: November 13, 2013




                                           
                           Pronounced on: November 16, 2013


      
     JUDGMENT: 

(Per Ravindra V. Ghuge, J.) :-

1] Rule. By consent, Rule is made returnable

forthwith and the petition is heard finally.

2] The petition pertains to the petitioner's

claim for inclusion of her name in the voters list

for the purpose of Elections of Zilla Parishad and

Panchayat Samiti, District Dhule.

3] Present writ petition and few more petitions

espousing similar cause were heard on 13.11.2013

till 6.00 p.m. However, thereafter, the judgment

was reserved.

4] Today, We have taken up this writ petition to

deliver our judgment, first in sequence and taking

the case on supplementary board at 2.30 p.m. since

the last date fixed for nomination of candidates

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for elections of Dhule Zilla Parishad is

16.11.2013 and 15.11.2013 was declared as holiday

and the declaration reached us only after court

rose.

5] The petitioner claims that :-

[a] She is a resident of Sindkheda.

[b] She has applied for inclusion of her name

in the voters list on 31st August, 2013.

[c] As per the programme regulating elections declared by the State Election Commission for the purpose of preparation of voters list,

the voters had to raise objection to voters

list till 28.10.2013.

[d] The petitioner was admitted in Hospital

for her maternity on 20th October, 2013. She had delivered a baby on 21st October, 2013. She remained in Hospital till 23rd October, 2013.

[e] She found that though she had applied, her name was not included in the voters list. Therefore, she submitted a letter of objection on 30.10.2013.

[f] Her application was delayed by two days and has not been considered.

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[g] As per the election programme, the last date fixed for nominations is 16th November,

2013.

[h] Since the petitioner's name is not

included in the voters list, she is unable to avail the opportunity and right for nomination as a candidate.

[i] Hence, the petitioner is before this court and prays for a direction to respondent No.1

to include her name in the voters list of Sindkheda constituency, District Dhule.

6] The petitioner's submissions made before

us are summarized as follows :-

[a] Voters list for the proposes of

elections to Zilla Parishad and Panchayat Samitis is a matter governed by Section 13 of the Representation of the People Act, 1950.

[b] Section 13(1) thereof, provides that the voters list of Assembly Elections, as in existence and prepared under the provisions of the Representation of the People Act, 1950 shall be the basis for the Panchayat Samiti elections.

WP/9099/2013

[c] Reference to words, "Representation

of People Act, 1950" in Section 13(1) of the Maharashtra Zilla Parishad and Panchayat

Samitis Act, 1956 results in bodily incorporation of the entire scheme for preparation of the voters list, commencing

from Sections 21 to 27, both inclusive; and also the Registration of Electors Rules, 1960 (hereinafter referred to as,"the Rules of

1960").

[d] As the petitioner's request for

inclusion was declined erroneously, and petitioner's objection is not heard, petitioner is entitled for the relief sought.

[e] Though programme for election has

begun, a direction for inclusion can be given, and bar under Article 243ZG has no

application.

7] The writ petition is opposed on the

following ground :-

[a] The voters list to be used for elections of Panchayat Samitis is the voters list as in vogue for the Assembly, as revised from time to time, under the scheme of the Representation of People Act,1950 and

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Registration of Electoral Rules of 1960.

[b] The scheme and model as provided

under the Representation of People Act, 1950 and Rules of 1960 is not made applicable in so far as inclusion, amendment etc. for the

purpose of local self government i.e. the elections to the Municipal Councils and Zilla Parishads are concerned.

[c] The updation of voters list as is being done as an ongoing procedure by

Electoral Registration Officer, for purposes of Assembly Electoral rolls is independent of the elections of Panchayats.

[d] If and when the petitioner applies and if her name is included in the supplementary voters list, the petitioner's

name may eventually be included in the voters list even for Panchayat Samiti. However, petitioner does not have a legal right under

any law to claim that her name must be included before a date fixed for nomination.

[e] Therefore, a direction to include petitioner's name on or before 16th November, 2013 cannot be done as petitioner's claim is not supported by any legal right for that

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purpose.

[f] The election programme has already

commenced.

8] Respondents have placed reliance on a

reported judgment in the case of AIR 1996 Bombay

343, as followed by this court in "Ramdas Nana

Andhale Vs. Electoral Officer and others" in W.P.

No. 8720 of 2013 ( Coram : B.P. Dharmadhikari and

Ravindra V. Ghuge, JJ), dated 23rd October. 2013.

9] We have examined the respective

submissions. The question which arises for

consideration formulated by us is as under :-

Does the petitioner have a right for issue of a direction in the nature of a Writ of Mandamus for inclusion of her name in the voters list and / or for consideration her

objection as regards non inclusion of her name in voters list ?

10] The petitioner's contention suggests that :-

[a] Assembly electoral rolls as last revised has to be the basic roll.

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[b] The preparation of list of voters for

pahchayat samiti has to be independently carried out.

[c] For the purpose of updation of / preparation of list of voters for

Panchayats and Zilla Parishads is to be under the rule book as laid down under the Representation of People Act, and

said Registration of Electors Rules of 1960.

11] The Division Bench of the Bombay High

Court at Goa had an occasion to deal with a

similar request in connection with Goa

Municipalities Act (Act No.7 of 1969), in the case

of Savio O. Fernandes and others Vs. State

Election Commission and others (AIR 1996 Bombay

343). Advertance to this judgment reveals that :-

[a] There were four writ petitions in relation to the election of Panaji Municipal Council. The State Election Commission had published a calendar of events of the election programme in which the last date for filing nominations for elections was fixed as February 3, 1996.

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[b] The date of taking the poll was fixed

as February 25, 1996. The Chief Electoral Officer had allowed the petitioners appeal

vide order dated January 25, 1996 and had directed the inclusion of their names in the list of supplement of 1996 for Panaji Assembly

Constituency.

[c] Consequent thereupon, the petitioners

approached the Returning Officer i.e.

Mamalatdar of Tiswadi for inclusion of their names in the voters list in the relevant

wards.

[d] The Returning Officer stated that it

was not possible to include the petitioners' names in the voters' list.

[e] Since the petitioners wanted to

contest the Panaji Municipal Council elections, to be held on February 25, 1996, they sought an order from the Court to permit them to contest and vote in the said

elections.

[f] After considering the law on the said issue and after considering the rival contentions of the parties, who had placed reliance upon several judgments of the Honourable Apex Court and various High Courts, the Division Bench of this Court dismissed

WP/9099/2013

the said writ petitions.

12] In the case of Savio (supra) this Court

has considered the view of the Honourable Apex

Court in the case of Lakshmi Charan Sen and others

Vs. A.K.M.Hassan Uzzaman and others (AIR 1985 SC

1233). The law as laid down by the Honourable

Apex Court from paragraph Nos.16 to 20 has been

reproduced in the said judgment. The conclusion

of the Honourable Apex Court in the said judgment

is found in paragraph No.20, which is as under:-

" 20. As a result of this discussion, it

must follow that the fact that certain claims and objections are not finally disposed of,

even assuming that they are filed in accordance with law, cannot arrest the process of election to the legislature. The election has to be held on the basis of the electoral

roll which is in force on the last date for making nominations." (emphasis supplied).

13] Thus, while considering the objections,

which are filed in accordance with law, the

Honourable Apex Court concluded that the failure

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to finally dispose off claims and objections

cannot arrest the process of election to

Legislature and that the election has to be held

on the basis of the electoral roll which is in

force on the last date for making nominations.

14] This Court had yet another occasion to

deal with the issue based on similar set of facts

in the case of Shri Ramdas Nana Andhale Vs. The

Electoral Registration Officer and others in Writ

Petition No.8720 of 2013. The Aurangabad Bench of

the Bombay High Court vide its order dated

23.10.2013 to which one of us (Ravindra V. Ghuge,

J.) is a party has considered a similar challenge

in respect of voters' list for election of

Ahmednagar and Dhule Municipal Corporations. In

paragraph No.7 of the said order, the Division

bench of this Court has concluded as under:-

"7. We find that very same challenge has been gone into by the Division Bench of this Court at Goa.In fact, in said matter, there was challenge to constitutionality of Section 11 of the Goa Municipalities Act on the ground

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that it does not permit correction in voters

list for the purposes of Municipal elections. That challenge has been turned down. Hence,

impugned order dated 17.10.2013 does not call for any interference"

15] It is seen that the scheme of the

Maharashtra Zilla Parishads and Panchayat Samitis

Act is contained in Section 13 only. It contains a

mandate that voters list of Assembly is to be

used.

16] Any scheme and mechanism for preparation

of a separate voters list for Zilla Parishad

election is not provided. Even the machinery

acting under Representation of People Act, 1950

and Registration of Elector's Rules, 1960 have not

been fastened with any obligation under

Representation of People Act 1950 and Registration

of Electors Rules, 1960, independently or when

read with Maharashtra Zilla Parishads and

Panchayat Samitis Act to revise the list and do

additions or amendments in the list of voters

specially for the purpose of Zilla Parishad

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elections.

17] The availability of petitioner's right is

dependent upon existence of a statutory provision

in favour of such a claim.

18] These contentions of petitioner need to

have a foundation in the legislative enactment.

For such foundation there has to be some direct or

indirect mandate in the scheme of legislation i.e.

Maharashtra Zilla Parishads and Panchayat Samitis

Act. Any such mandate is totally absent.

19] The list of voters in vogue in relation

to Assembly elections, is to be the basis for

Panchayat Samit elections, the list whatever and

as it is, will have to be acted upon. For any

individual, the claim for being included or to

raise an objection as regards inclusion, non-

inclusion, will have to be in relation to assembly

elections only. The fact that the provisions of

Representation of People Act and Rules of 1960,

have not been made applicable expressly, and all

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that is provided by Section 13 is only use of list

of voters in existence for Assembly Elections as a

voters list. However, it shall not imply that the

provisions of the Representation of People Act and

Rules of 1960, stand bodily incorporated.

20] The scheme of Section 13 of the

Maharashtra Zilla Parishads and Panchayat Samitis

Act, as it stands, will have to be read as a

conscious legislative act of the State

Legislature. If it is to be held that Sections 21

to 27 of the Representation of People Act, are

bodily incorporated and read in Section 13 of the

Zilla Parishads and Panchayat Samitis Act, such a

scheme has to expressly exist. Existence has to

be seen obvious and distinct from a desire,

expectation and a demand. Petitioner could

suggest a direct or indirect mandate of law that

such bodily incorporation is the legislative

mandate. No such mandate is apparent, even when

Section 13 is read and seen from any angle.

Considering the judicial dictum as noted

in the two cases above named, we see no

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justification to uphold the plea and call it an

exercise of judicial legislation.

21. The conscious omission of not providing a

separate scheme and mechanism appears to have been

done by the State legislature while drafting and

even while amending Section 13 of the Zilla

Parishads and Panchayat Samitis Act. This

conscious omission will have to be respected as it

stands.

22. In the case at hand, the petitioner has

raised objections after :-

                   [a]      a delay of two days, and

                   [b]      her   address   on   her   Election 





                   Identity   Card   at   page   12   of   the 

petition is "Hadapsar, Pune.".

Having caused the delay in raising objections,

cannot entitle the petitioner to contend that

her objections have not been considered and that

the respondents - election authorities have

failed in their duties. Based on these

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contentions, the petitioner cannot seek a

direction in exercise of the extra-ordinary

jurisdiction of this Court. Similar challenges

having been considered by the Division Benches

of the Bombay High Court at Goa and Aurangabad

respectively, put to rest, the challenge put

forth by the petitioner.

23] Therefore, in the light of foregoing

discussion and since the Court has already taken

a view in two similar cases, we find no

distinguishing factor so as to take a different

view in the case on hand.

24] In the result, the petition fails and is

dismissed accordingly. Rule is discharged. No

order as to costs.

        (RAVINDRA V. GHUGE, J.)              (A.H.JOSHI, J.)
grt/-                     ...