Dashemsh Sewa Society And Anr vs Lt Governor Of Delhi And Ors
2012 Latest Caselaw 831 Del

 22 & 32

 *      IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                       Date of Decision: 07.02.2012

 %      W.P.(C) 4166/2011

        DASHEMSH SEWA SOCIETY AND ANR             ..... Petitioner
                     Through:   Mr. Abhinash K. Mishra, Advocate.

                       versus

        LT GOVERNOR OF DELHI AND ORS               ..... Respondent
                      Through:   Mr. Rajiv Nanda, Addl. Standing
                                 Counsel for the respondents No. 1
                                 to 3.
                                 Mr. G.K. Bharti & Mr. Jagjit Chhabra,
                                 Advocates for the respondent No.
                                 4/DSGMC.

                                      AND
        W.P.(C) 311/2012

        HARMOHAN SINGH                                  ..... Petitioner
                     Through:          Mr. Gurbaksh Singh, Advocate

                       versus

        LT. GOVERNOR OF DELHI & ORS                ..... Respondents
                       Through:  Mr. Rajiv Nanda, Addl. Standing
                                 Counsel & Mohd. Aslam Khan,
                                 Advocate for the respondents No. 1
                                 & 2.
                                 Mr. G.K. Bharti & Mr. Jagjit Chhabra,
                                 Advocates for the respondent No.
                                 3/DSGMC.

        CORAM:
        HON'BLE MR. JUSTICE VIPIN SANGHI


 VIPIN SANGHI, J. (Oral)

1. These two writ petitions have been preferred primarily to seek a

writ, order or direction, directing the respondent authorities namely

the Hon'ble Lieutenant Governor of Delhi, Directorate of Gurudwara

Elections, and Delhi Sikh Gurudwara Management Committee to

undertake the preparation of the electoral rolls having photographs of

individual voters; to complete the exercise of delimitation of 46 wards

and, thereafter, to hold the elections for the Delhi Sikh Gurudwara

Management Committee. In W.P.(C.) No. 4166/2011, certain other

reliefs in relation to the functioning of the existing Management

Committee, whose term has already expired, have also been sought.

2. A status report has been filed on behalf of the Directorate of

Gurudwara Election in W.P.(C.) No. 311/2012. The same has been

perused and learned counsels have been heard. In this status report,

the following decisions have been approved by the Hon'ble Lieutenant

Governor:

"i) That, existing (old) Electoral Rolls be merged with the newly prepared Electoral Rolls of Sikh voters and the name of the electors existing in both the lists may be deleted from the old list (electoral rolls) and the combined Electoral Rolls may be published and utilized for the general elections of the members to the Committee (DSGMC). Further, for this purpose, the current exercise of preparation of fresh electoral rolls under Rule 32 of DSGMC (Registration of Electors) Rules, 1973 shall be treated as Revision of Electoral Rolls under Rule 26 of DSGMC (Registration of Electors) Rules 1973.

ii) The Electoral Rolls for the forthcoming general elections may be prepared without photographs of the Sikh voters. The identity of the Sikh voters at the time of polling may be verified (if necessary), on the basis of proof regarding identity.

iii) That, to facilitate the conduct of the election of the Committee (DSGMC) at the earliest, the delimitation of the Gurudwara Wards under Section 6 and 7 of the Act, may be

deferred to be taken up after the election of the new Committee.

iv) Further, the schedule of finalization of electoral rolls and conduct of the general election of the members to the DSGMC, would be as follows:-

        a)    Publication of Draft Electoral Rolls        10/12/2011
        b)    Last    date     for    filing   Claims   & 31/12/2011
              Objections (allowing statutory period
              of 21 days)
        c)    Final publication of Electoral Rolls        15/01/2012
        d)    Issuance of notification for conduct of 16/02/2012
              General election (to the new DSGMC)
              and commencement of filing of the
              nominations.
        e)    Last date for making the nominations        22/02/2012
        f)    Scrutiny of nominations                     23/02/2012
        g)    Withdrawal of nominations                   25/02/2012
        h)    Day of Polling                              11/03/2012
        i)    Counting of Votes and declaration of 17/03/2012
              Results
                                                                       "

3. According to the petitioners, the aforesaid decision is an old

phase and the respondent authorities have somersaulted from their

earlier decision approving the preparation of the fresh electoral rolls

and carrying out delimitation of the wards before holding of elections

to the Delhi Sikh Gurudwara Management Committee.

4. On 05.10.2011, in a meeting which was held between the

Hon'ble Lt. Governor and a delegation of SAD(Badal), Delhi regarding

conduct of elections of Delhi Sikh Gurduwara Management Committee,

two crucial decisions were taken. The first was to undertake the

exercise of preparation of the fresh electoral roll of Delhi Sikh

Gurudwara Management Committee. In fact, it is pointed out that the

said decision to prepare the fresh electoral rolls was taken even prior

to the said meeting of 05.10.2011. Reference has been made to the

file notings placed at page 132 of W.P(C) 4166/2011, which clearly

shows that the Lt. Governor had granted approval for preparation of

the fresh electoral rolls under Rule 32 of the Delhi Sikh Gurudwara

Management Committee (Registration of Electors) Rules, 1973 (Rules)

on 04.06.2010.

5. The second was, to undertake the delimitation of wards. Only

thereafter the elections to the management committee were to be

held. It was informed in the meeting that the preparation of the

electoral rolls would be completed by 31.10.2011; thereafter the draft

rolls would be published and claims and objections invited. The final

publication of the electoral rolls was to be undertaken by 01.01.2012.

Delimitation of wards was estimated to take another 2-3 months. The

Minutes record that the delimitation is required, as population has

increased and there has also been shift in population. The date of

elections was not fixed in that meeting. It was informed that the same

could be held sometime in the first week of May, 2012. For the

purpose of registration of Sikh voters, the Hon'ble Lt. Governor desired

holding of special camps with proper publicity, inter alia, in

newspapers.

6. From the status report now filed on record, and on a perusal of

the original record produced by Mr. Nanda, it is seen that contrary to

the aforesaid decision taken in the meeting with the Lt. Governor, a

short cut has been sought to be adopted by the respondents. Instead

of completing the process of preparing fresh electoral rolls, as provided

under Rule 32 of the Rules, which mandatorily require the affixation of

photographs, it is now proposed that the fresh electoral rolls - to the

extent that they have been prepared, be merged with the existing

electoral rolls prepared in the year 2006 - which do not have

photographs, and the process be treated as undertaken under Rule 26

of the Rules, which talks about revision of electoral rolls.

7. This deviation has been made on the ground that there has been

lukewarm response from the Sikh community in the process of

enrolment of electors. The record also reveals that, on the ground that

the elections are to be held in February, 2012, the process of

delimitation has also been deferred, to be held after holding of the

elections. For the modified process sought to be adopted, the approval

of the Lt.Governor has also been obtained.

8. The submission of learned counsel for the petitioner is that the

lukewarm response alleged to have been received from the Sikh

community is on account of the lax manner in which the process of

preparation of the fresh electoral rolls has been undertaken by the

respondent authorities. According to the petitioners, only a part time

exercise was conducted without proper advertisement and public

notice. It is also submitted that there is a vast difference in the number

of voters in the various constituencies as existing. It is pointed out

that, for instance, in the constituency of Chandni Chowk, only 2000

voters are registered, whereas in other constituencies, such as

Sahibpura, there are 14,000 voters even as per the partly completed

exercise of preparation of fresh electoral rolls. According to the

petitioners, the records would show that there are over 37,000 Sikh

voters in Sahibpura Constituency. He, therefore, submits that for the

Management Committee to be a truly representative body, it is

absolutely essential to conduct the process of delimitation before the

elections are held.

9. Learned counsel also submits that the merging of the freshly and

partly prepared electors rolls with electoral rolls of the year 2006

would mean that a large number of voters would be included without

photographs, which would be contrary to the amended Rule 7 of the

Rules, and may lead to bogus voting, as many of these voters may not

even exist now in the concerned constituencies. According to Rule 7,

any Sikh who wishes to have his name registered as an elector, shall

make an application in Form 2 along with his/her coloured photograph,

addressed to the Electoral Registration Officer of the ward for the

registration of his name for being registered in the electoral list.

10. On the other hand, learned counsel for the respondent points out

that so far as delimitation of wards is concerned, Section 6 of the Delhi

Sikh Gurudwaras Act, 1971 provides that, for the purpose of election of

members of the Committee, Delhi shall be divided into single member

wards. The Director(GE), shall by order, determine:-

        (a)    The number of wards;

        (b)    The extent of each wards;

        (c)    The Director GE may from time to time, in consultation

with the Committee alter or amend any order made under

sub-Section 6(2).

11. I may note that the Director (GE), Mr. S.S.Sidhu, was a party to

the meeting held on 05.10.2011. Therefore the decision to carry out

fresh delimitation was taken in his presence and with his consent and

concurrence. The submission of learned counsel for the petitioners

also is that the decision to carry out delimitation had already been

approved by the competent authority on the file even before the

meeting held on 05.10.2011. However the relevant document is not

provided under the RTI to the petitioners.

12. The submission of Mr. Nanda is that since the Hon'ble Lt.

Governor has given his approval to the modified procedure i.e of

revising the electoral roll under Rule 26 of the Rules, rather preparing

a fresh one under Rule 32, there is no vested right in the petitioner to

claim that the elections should be held only on the basis of the fresh

electoral rolls, and not on the basis of the revised electoral rolls. It is

also submitted that there is no vested right in the petitioners to claim

delimitation of wards prior to the conduct of elections. Mr. Nanda

submits that the identity of the voters can be established by requiring

them to produce identity proofs such as voter's ID card, passport,

driving licence etc, as had been done during the election process held

in the year 2007. He submits that the only concern of the petitioners

can be with regard to the maintenance of the purity of the election

process, so that there is no bogus voting in the conduct of the

elections. To that extent, he submits, the production of identity proof

by the voters can be insisted upon.

13. The process of preparation of fresh electoral rolls as provided in

Rule 32 of the aforesaid rules, read as follows:-

"32. Fresh preparation of electoral rolls - The Administrator may, if it considers it expedient, direct the preparation of electoral rolls afresh for a ward or part of the ward before a by-election or election and the rules 4 to 22 shall apply and the electoral roll or electoral rolls already in force shall cease on the final publication of the fresh electoral roll or electoral rolls." (emphasis supplied)

14. On the other hand, the process of revision of electoral rolls

contained in Rule 26 read as follows:-

"26. Revision of electoral rolls - (1) The Director may, for reasons to be recorded in writing direct the revision of the electoral roll of a ward or part of ward in any year or before any election of by-election to fill a casual vacancy.

(2) The Administrator may, at anytime, direct a special revision in the electoral roll in any ward or part of a ward in such manner as it may think fit.

(3) Subject to the provisions of the Act and these rules, the electoral roll for a ward as in force at the time of the issue of any direction under sub-rule (1) or sub rule (2), shall continue to be in force until the completion of the revision of electoral rolls under sub rule (1), or as the case may be, under sub rule (2).

(4) When the electoral roll or any part thereof is so revised, it shall be prepared afresh and rules 4 to 22 shall apply except that no fresh application shall be necessary of a Sikh who is already registered as an elector and is resident of the same ward, provided, however, his application shall lie if his address in the same ward has changed or for any error or an omission in the entry relevant to him." (emphasis supplied)

15. Having heard learned counsels and perused the record, I am of

the view that having taken the decision to prepare a fresh electoral

rolls under Rule 32 upon it being found expedient so to do, the said

decision could not have been reviewed, particularly when the said

process had already been set rolling. The reason given for modifying

the process into one of revision - by merging the partially and freshly

prepared electoral rolls (in pursuance of the decision taken by the

Hon'ble Lt. Governor on 04.06.2011) with the electoral rolls prepared

in the year 2006, in my view is not a reason good enough to review the

decision to prepare the fresh electoral rolls. There is nothing on record

to suggest that the fresh process of preparation of the electoral rolls

was undertaken in the right earnest with proper advertisement and

public notice, including in the print media- particularly the Gurumukhi

news papers, and by holding full day camps over weekends.

16. It appears that even the electoral rolls of 2006 were not freshly

prepared ones. They were mere revision of electoral rolls lastly

prepared in the early eighties. It is clear that the decision to prepare

fresh electoral rolls, post amendment of Rule 7 was a conscious

decision taken by the Lt. Governor considering the fact that the

existing one had become stale, and did not have the photographs of

the voters.

17. If there was lukewarm response for preparation of the fresh

electoral rolls, efforts should have been made to encourage the

members of Sikh community to come forward for registration by

undertaking wide publicity and by holding camps, as also noted in the

minutes of the meeting dated 05.10.2011. The solution was not to cut

short and abort the said process, which had been initiated and partially

undertaken.

18. It would be seen on a comparison of Rule 32 and Rule 26, that

the process of revision may be undertaken when election or bye-

election is held "to fill a casual vacancy". In this case, it is the general

election of the management committee which is to be held due to

expiry of the tenure of the existing committee, and not an election to

fill a "casual vacancy".

19. Pertinently, even when the revision of the electoral roll is

undertaken under Rule 26, the same procedure as prescribed under

Rules 4 to 22 has to be followed. The respondents are, however,

proposing to completely do away with the said procedure and short

circuit the same by primarily proceeding on the basis of the electoral

rolls revised in the year 2006. This mechanism does not even qualify

as a revision under Rule 26 of the Rules, and is a novel procedure

evolve by the respondents, de horse the rules.

20. The preparation of the fresh electoral rolls is undertaken on the

orders of the Administrator i.e. Lt. Governor under Rule 32, whereas

the revision of electoral rolls is undertaken by the Director(GE) under

rule 26. In this case, it is the Hon'ble Lt. Governor whose approval was

sought and obtained. The subsequent decision to resort to revision of

electoral rolls, in my view, could not have been adopted, as the

process once started under Rule 32 and could not have been stopped.

The said process should be completed in a time bound manner and in

the right earnest. Only thereafter the fresh elections should be held so

that the management committee that is elected is truly representative,

and the purity of the election process is maintained.

The holding of the elections on the basis of the revised electoral rolls of

the year 2006 after merging the same with the partly prepared fresh

electoral rolls is bound to leave out many prospective voters who may

become eligible after 2006. At the same time, there would be many

voters in the revised list of 2000 who may have either died or shifted

from their residence and in terms of the procedure for revision would

need to go through the same process of registration as is provided in

Rules 4 to 22. A perusal of the status report shows that the publication

of the approved electoral rolls on 10.12.2011 has resulted in inclusion

of 2650 names and deletion of 2407 names. This clearly shows that if

a full complete exercise of preparation of electoral rolls undertaken in

the right earnest, which would lead to enrollment of a large number of

new voters, and at the same time, deletion/shifting of a large number

of existing voters.

21. The elections, if permitted to be held on the basis of the electoral

rolls, as sought to be prepared by the respondents, are bound to cause

heart burn and leave dissatisfaction among the members of the Sikh

community. It would also dent the purity of the election process and

the credibility of the elected body.

22. So far as the aspect of delimitation is concerned, it is clear from

the minutes dated 05.10.2011 that in terms of Section 6 of the

aforesaid Act, the Director GE has accorded his approval for fresh

delimitation. The reasons for delimitation are also recorded in the

Minutes dated 05.10.2011. The whole process seems to have been

short circuited by deciding to hold the elections in February 2012, even

though, in the meeting held on 05.10.2011, the time limit for conduct

of elections was fixed in the first week of May 2012. It is not disclosed

on the record, as to why there was a sudden change in the time frame

for holding the elections from May 2012 to February 2012. What was

the tearing hurry for preponing the proposed date of election by three

months, has not been explained or recorded in the file notings.

23. Before an administrative decision- which has a bearing on the

conduct of elections of a statutory body in a democratic manner, is

reviewed, there should be very good grounds and reasons to justify the

retraction of the decision, when the earlier decision is taken to

advance transparency in the holding of the elections; strengthen

democracy, and to ensure purity in the process of elections. The

earlier decision taken by the Hon'ble Lieutenant Governor on

04.06.2011 to prepare fresh electoral rolls, and the decision taken by

the Director (GE) to carry out fresh delimitation, were decisions which,

if implemented, would advance the cause of democracy, and

strengthen the democratic institution, i.e. Delhi Sikh Gurudwara

Management Committee. The decision to suddenly, and on specious

ground, to recall the earlier decision, in my view, appears to be a

retrograde decision which undermines the democratic process. The

same appears to be irrational, undemocratic and arbitrary.

24. Pertinently, the elections have not yet been notified, as the same

are proposed to be notified only on 16.02.2012. In view of the

aforesaid discussion, the proposed election schedule appears to be

contrary to the process for preparation of fresh electoral rolls already

initiated, and also to the decision to carry out the process of

delimitation, yet to be undertaken. The preparation of fresh electoral

rolls should first be completed by adequate advertisement and public

notice in prominent newspapers, including Gurmukhi newspaper,

having circulation in Delhi. In the meeting of 05.10.2011, it was

suggested to hold field camps in all the 23 zones of Gurudwara

Elections on Saturdays and Sundays for registration of electors under

the supervision of the concerned area SDMs. This procedure should be

followed and implemented. In each of the 23 zonal offices, special two

day camps should be organized between 10 p.m. and 2 p.m. under the

supervision of the concerned SDMs with the intent to register as many

as Sikh electors as possible.

25. Once the said process is completed, the further process with

regard to publication of the draft rolls, invitation of objections and

claims should be undertaken. Let the said process be completed

positively within one month from today. Thereafter, the process of

delimitation should be undertaken and be completed within two

months thereafter.

26. The notification for conduct of elections, which is proposed to be

issued on 16.02.2012, shall not be issued unless the process of

preparation of the electoral rolls and delimitation is first undertaken.

In the light of this decision, the Hon'ble Lt. Governor may take

appropriate decision with regard to the status of the existing

Committee.

27. Adjourned to 22.03.2012.

28. Dasti under the signatures of the Court Master.

VIPIN SANGHI, J

FEBRUARY 07, 2012 as