Bombay High Court
Gayatri Narendra Kulkarni vs The State Of Maharashtra on 21 November, 2013
Bench: A.H. Joshi, R.V. Ghuge
WP/9082/2013
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9082 OF 2013
Gayatri Narendra Kulkarni
@ Diplai Suhas Tare,
Age 40 Years, Occ. Household,
R/o Flat No.1, Ashthpuja
Apartment, Swami Vivekanand
Chowk, Devi Mandir,
Gujar Galli, Ahmednagar. ..Petitioner
Versus
1. The State of Maharashtra
Through its Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai. 32
2.The State Election Commission,
Madam Cama Road, Mumbai. 400 032.
3. The Commissioner / Returning
Officer, Ahmednagar Municipal
Corporation, Ahmednagar. ..Respondents
...
Advocate for Petitioner: Shri P.D.Bachate
AGP for Respondent 1: Smt. Manjusha A. Deshpande
Advocate for Respondent 2 & 3: Shri S.T.Shelke
...
CORAM : A.H.JOSHI AND
RAVINDRA V. GHUGE, JJ.
Reserved on: November 13, 2013
Pronounced on: November 21, 2013
::: Downloaded on - 27/11/2013 20:33:44 :::
WP/9082/2013
2
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 Ahmednagar
Municipal Corporation.
3. Present writ petition and few more
petitions espousing similar cause were heard on
13.11.2013 till 6.00 p.m. and the judgment was
reserved.
4. The petitioner claims that :-
[a] She is a resident of Ahmednagar. She
got married on 5.5.2011 and her name
changed to Gayatri Narendra Kulkarni.
[b] As per the programme regulating
elections declared by the State Election
Commission for the purpose of preparation
WP/9082/2013
of voters list, the Electoral
Registration Officer [not impleaded in
this petition] was duty bound to include
her name in the voters' list on
13.11.2013 under Section 7A of the
Maharashtra Municipal Corporation Act,
(hereinafter, for the sake of brevity
"the MMC Act"). The electoral roll under
the Representation of People Act, 1950
(hereinafter, for the sake of brevity
"the Act of 1950") and the Registration
of Electors Rules, 1960 (hereinafter,
for the sake of brevity "the Rules of
1960") as on 1.10.2013 is in vogue.
[c] Initially though petitioner with her
maiden name was included in the voters'
list, she applied for correction of name
post marriage. But her marital name is
not included in the Provisional voters'
list dated 23.10.2013 and her maiden name
is stamped 'DELETED' in the said list
under Section 7A of the MMC Act.
[e] Bar has been created by Section 23(3)
of the Act of 1950 to include any person
in the electoral roll after the last date
of nominations.
[f] If the petitioner's name is not
included in the voters list, she would be
WP/9082/2013
unable to avail the opportunity and right
for nomination as a candidate.
[g] Hence, the petitioner is before this
court and prays for a direction to
respondent No.3 to include her name in
the voters list of Ahmednagar city.
5. The petitioner's submissions made before
us are summarized as follows :-
[a] Voters list for the purpose of
elections to Ahmednagar Municipal
Corporation is a matter governed by
Section 7A of the MMC Act.
[b] Section 7A thereof, provides that the
voters list of Assembly Elections, as in
existence and prepared under the
provisions of the Act of 1950 shall be
the basis for the Municipal Corporation
elections.
[c] Reference to Section 7A of the MMC
Act 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 Rules
of 1960.
WP/9082/2013
[d] As the petitioner's request for
inclusion is undecided, petitioner is
entitled for the relief sought.
6. The petitioner has placed reliance on
following judgments:-
(a) Interim order of the learned Single
Judge of this Court, dated 11.11.2008
passed in Writ Petition No.6565 of 2008
(Satish Digambar Mahale Vs. The State
Election Commission and others). The
learned Single Judge was called upon to
deal with the situation in which the name
of the petitioner was deleted from both
the places instead of being deleted from
only one place. The petitioner therein
was a sitting Corporator, whose name was
already included in the earlier electoral
roll. The name of the petitioner, by an
interim order was directed to be included
in the relevant voters' list.
(b) Baidyanath Panjira Vs. Sita Ram Mahto
and others (AIR 1970 SC 314) wherein, the
Honourable Apex Court has dealt with the
powers to correct the entires in the
electoral roll as also the issue of
inclusion of new names. The issue for
consideration was as to whether the said
power under Section 23 of the Act of 1950
WP/9082/2013
could be exercised after the last date of
making nominations and before completion
of election. Nevertheless, the Honourable
Apex Court concluded that in view of
Section 23(3) of the Act of 1950, the
electoral roll referred to in Section
62(1) of the Representation of the People
Act of 1951 must be understood to be the
electoral roll that was in force on the
last date for making the nominations for
the election.
(c) Election Commission of India Vs.
Ashok Kumar and others [(2000) 8 SCC
216]. Issue before the Honourable Apex
Court was about interference in the
election process and issuance of interim
directions after the commencement of the
electoral process.
(d) K.Ventatachalam Vs. A.Swamickan and
another (AIR 1999 SC 1723) which pertains
to the scope of interference of the Court
in electoral matters, with reference to
disqualification of membership and
penalty for sitting and voting when dis-
qualified.
(e) The Division Bench judgment of this
Court in the case of Smt. Mayaraju
Ghavghave Vs. Returning officer for Gram
WP/9082/2013
Panchayat [2004 (4) ALL MR 258] which
pertains to calling in question the
election at intermediate stage and
rejection of nomination paper.
7. The writ petition is opposed by filing an
affidavit-in-reply by the Assistant Electoral
Registration Officer on the following ground :-
[a] The voters list to be used for
elections of Municipal Corporation is the
voters list as in vogue for the Assembly,
as revised from time to time, under the
scheme of the Act of 1950 and Rules of
1960.
[b] The scheme and model as provided
under the Act of 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 Corporation
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 Municipal
WP/9082/2013
Corporations.
[d] The name of the petitioner along with
her parents has been deleted on
14.12.2012. Said deletion supplement was
published on 15.1.2013.
[e] A special campaign for acceptance of
suggestions and objections on the voters'
list has begun on 22.9.2013. Objections
would be decided on 2.12.2013. The
updation of data base, preparation and
print of supplements are from 2.12.2013
to 31.12.2013. The Final Voters' list
would be published on 6.1.2014.
[f] The claim for inclusion of the
petitioner's name in the voters' list
will be gone into as per the procedure
laid down in the Act of 1950 and the
Rules of 1960. 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.
[g] Therefore, a direction to include
petitioner's name keeping in view the
Municipal Corporation's election cannot
be issued as petitioner's claim is not
supported by any legal right for that
purpose.
WP/9082/2013
8. Respondents have placed reliance on a
reported judgment in the case of Savio (supra) 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 of her claim 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.
[b] The preparation of list of voters for
WP/9082/2013
Municipal Corporation has to be
independently carried out.
[c] For the purpose of updation of/
preparation of list of voters for
Municipal Corporation 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 judgments relied upon by the
petitioner, which have been referred to in
paragraph No. 7(a) to (e) are dealt with as
follows:-
(a) The interim order of the learned
Single Judge of this Court in the case
Satish Digambar Mahale (supra) is
concerned, the judgment of this Court in
the case of Savio (supra) was not cited
before the learned Single Judge while
passing the interim order.
(b) So far as the Baidyanath's case
(supra) is concerned, the electoral roll
as it stood on the date of nomination was
held to be in force. It, therefore,
WP/9082/2013
recognizes the sanctity of the cut off
date for the assembly electoral roll.
(c) So far as the judgments delivered by
the Honourable Apex Court referred above
in the cases of Election Commission Vs.
Ashok Kumar and K.Venkatachalam and the
judgment of the Division Bench of this
Court in the case of Smt.Mayaraju (supra)
are concerned, the facts before the Court
in those cases were quite distinct and
the issues raised for consideration are
in no way similar to the issue before us
for consideration in this case. As such,
reliance on the said case is of no
assistance to the petitioner.
12. The Division Bench of this 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 (supra). 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
WP/9082/2013
elections was fixed as February 3, 1996.
[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
WP/9082/2013
placed reliance upon several judgments of
the Honourable Apex Court and various
High Courts, the Division Bench of this
Court dismissed the said writ petitions.
13. 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).
WP/9082/2013
14. Thus, while considering the claims, which
are filed in accordance with law, the Honourable
Apex Court concluded that the failure 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 Ramdas Nana Andhale (supra). 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
WP/9082/2013
matter, there was challenge to
constitutionality of Section 11 of the
Goa Municipalities Act on the ground 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 for using the
voters list for the Municipal Corporation
elections 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 Municipal
Corporation 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 MMC Act to revise
the list and do additions or amendments in the
WP/9082/2013
list of voters specially for the purpose of
Municipal Corporation 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.
MMC 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
Municipal Corporation 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
WP/9082/2013
that is provided by Section 7A 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 7A of the MMC 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 7A of the MMC
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 7A is read and seen from any angle.
Considering the judicial dictum as noted
in the two cases above named, we see no
justification to uphold the plea and call it an
exercise of judicial legislation.
WP/9082/2013
21. The conscious omission of not providing a
separate scheme and mechanism appears to have been
done by the State legislature while drafting
Section 7A of the MMC Act. This conscious
omission will have to be respected as it stands.
22. As such 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
WP/9082/2013
order as to costs.
(RAVINDRA V. GHUGE, J.) (A.H.JOSHI, J.)
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