Rani Laxman Wagh vs The Electoral Registration
2013 Latest Caselaw 182 Bom

                                                        WP/9116/2013
                              1

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD




                                                             
               WRIT PETITION NO. 9116 OF 2013




                                     
     Rani Laxman Wagh
     Age 32 years, Occ. Household,




                                    
     R/o 73, Wagh Galli,
     Nalegaon, Ahmednagar.                    ..Petitioner

     Versus




                           
     1. The Electoral Registration
     Officer, 225/32, Legislative
                 
     Assembly Constituency and 
     Sub-Divisional Officer, 
     Nagar Division, Ahmednagar.
                
     2. The State Election Commission,
     New Administrative Building,
     Opp. Mantralaya, Madam Cama Road,
     Mumbai. 400 032.
      


     3. Ahmednagar Municipal 
   



     Corporation, Ahmednagar.
     Through it's Commissioner.               ..Respondents

                            ...





        Advocate for Petitioner: Shri A.C.Dharandale
           ASG for Respondent 1: Shri Alok Sharma
         Advocate for Respondent 2: Shri S.T.Shelke
        Advocate for Respondent 3: Shri K.N.Lokhande





                            ...

                       CORAM :  A.H.JOSHI AND 
                                RAVINDRA V. GHUGE, JJ.

                       Reserved on: November 13, 2013
                       Pronounced on: November 21, 2013




                                     ::: Downloaded on - 27/11/2013 20:33:45 :::
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     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 29.12.2012 and her name

changed to Rani Dipak Dangat. She has

filed this petition under her maiden

name.

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[b] She has applied for inclusion of her

name in the voters list in the year 2012 (date not supplied).

[c] As per the programme regulating elections declared by the State Election

Commission for the purpose of preparation of voters list, the respondent No.1 was duty bound to include her name in the

voters' list on 13.11.2013 under Section

7A of the Maharashtra Municipal Corporation Act ("MMC Act" hereinafter,

for the sake of brevity) and Registration of Electors Rules, 1960 (hereinafter referred to as, "the Rules of 1960") as

on 1.10.2013 is in vogue.

[d] Her maiden name was included in the provisional voters' list. But her name

after marriage is not included in the Final Voters' List dated 13.11.2013 under Section 7A of the MMC Act.

[e] Bar has been created by Section 23(3) of the Representation of Peoples Act, 1950 ("Act of 1950" hereinafter, for the sake of brevity) to include any person in the electoral roll after the last date of nominations.

[f] If the petitioner's name is not

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included in the voters list, she would be

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.1 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

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of 1960.

[d] As the petitioner's request for

inclusion is undecided, petitioner is entitled for the relief sought.

6. The writ petition is opposed 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/9116/2013

Corporations.

[d] 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.

[e] 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.

7. Respondents have placed reliance on a

reported judgment in the case of Savio O.

Fernandes and others Vs. State Election Commission

and others (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.

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8. 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

probable non inclusion of her name in voters list?"

9. 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 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.

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10. 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 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.

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[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 the said writ petitions.

11. 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

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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).

12. 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.

13. 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

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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 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"

14. 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.

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15. 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 ig of Electors Rules, 1960,

independently or when read with MMC Act to revise

the list and do additions or amendments in the

list of voters specially for the purpose of

Municipal Corporation elections.

16. The availability of petitioner's right is

dependent upon existence of a statutory provision

in favour of such a claim.

17. 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.

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18. 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

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.

19. 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.

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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.

20. 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.

21. 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

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by the petitioner.

22. 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.

23.

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.)

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