Delhi High Court
Ram Naresh Tyagi & Ors vs Election Commission Of India & Anr on 31 October, 2013
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
%
Date of Decision: 31.10.2013
+ WP(C) No.5064 of 2013 & CM No.11421/2013
RAM NARESH TYAGI & ORS
..... Petitioner
Through: Mr. Jagjit Singh and Mr. Rahul
Chopra, Advs.
versus
ELECTION COMMISSION OF INDIA & ANR
..... Respondent
Through: Mr. P.R. Chopra, Adv. for R-1
Mr. Anjum Javed and Mr. R.D.
Dhiraj, Adv. For R-2
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
V.K.JAIN, J. (Oral)
The petitioners before this Court are aggrieved from deletion of
their names from the electoral roll of the constituencies in which they claim to
be residing. According to the petitioners, in the first week of March, 2009,
they came to know of deletion of their names from the electoral roll. One of
the voters of the locality namely Mr. Arun Tyagi approached this Court by
filing a writ petition being W.P(C) No.7967/2009, inter alia, seeking
reinstatement of his name as well as the names of other voters who had been
subjected to similar treatment. The aforesaid writ petition was disposed of
with liberty to Mr. Arun Tyagi to file an appeal under Section 24 of the
Representation of Peoples Act. The appeal filed by him was dismissed on
25.9.2009. The order, dismissing the appeal, was assailed by Mr. Arun Tyagi
by way of a writ petition being W.P(C) No.13779/2009 which came to be
disposed of vide order dated 26.10.2010, whereby the writ petition was
dismissed. Mr. Arun Tyagi challenged the order of dismissal of the writ
petition by way of an LPA No.2/2011 titled Arun Tyagi Vs. Election
Commission of India & Anr. which was allowed by this Court vide an order
dated 4.4.2011. Pursuant to the order of the Division Bench, the name of Mr.
Arun Tyagi was included in the electoral roll. The petitioners are now seeking
restoration of their names in the electoral roll.
2. No counter affidavit has been filed by the respondents, but it is not
disputed that no hearing in terms of the provisions of Section 22-C of the
Representation of People's Act was given to the petitioners before deleting
their names from the electoral roll. The learned counsel for respondent no.1,
however, informs that the name of Mr. Arun Tyagi was also deleted from the
electoral roll after giving an opportunity of hearing to him in terms of the
order of the Division Bench in LPA No.2/2011, since it was found that the
area in which he was living fell in the State of Uttar Pradesh and not in Delhi.
3. Section 22 of Representation of People's Act reads as under:
"22. Correction of entries in electoral rolls - If the
electoral registration officer for a constituency, on
application made to him or on his own motion, is
satisfied after such inquiry as he thinks fit, that any entry
in the electoral roll of the constituency-
(a) is erroneous or defective in any particular,
(b) should be transposed to another place in the roll on
the ground that the person concerned has changed his
place of ordinary residence within the constituency, or
(c) should be deleted on the ground that the person
concerned is dead or has ceased to be ordinarily resident
in the constituency or is otherwise not entitled to be
registered in that roll, the electoral registration officer
shall, subject to such general or special directions, if any,
as may be given by the Election Commission in this
behalf, amend, transpose or delete the entry:
Provided that before taking any action on any ground
under clause (a) or clause (b) or any action under clause
(c) on the ground that the person concerned has ceased to
be ordinarily resident in the constituency or that he is
otherwise not entitled to be registered in the electoral roll
of that constituency, the electoral registration officer
shall give the person concerned a reasonable opportunity
of being heard in respect of the action proposed to be
taken in relation to him.]"
4. It would thus be evident from a perusal of the aforesaid provisions that
the names of a voter from the electoral roll can be deleted only after giving a
reasonable hearing to the voter whose name is sought to be deleted from the
said roll. Even if the information received by the concerned Electoral
Registration Officer indicates that a particular voter is not residing in the
constituency to which electoral roll pertains, must necessarily he be given an
opportunity of hearing to such a voter, so as to enable him to appear before
him and satisfy him that he continues to reside in the said constituency and,
therefore, his name should not be deleted from the electoral roll.
5. The following view taken by the Division Bench in Arun Tyagi (supra)
is relevant in this regard:
"22. From the aforesaid enunciation of law, the principles that are
culled out are that non-compliance of the principles of natural justice
vitiates the decision; that it is a common experience that once a
decision has been taken there is a tendency to uphold it; that unless
the statute or a rule excludes the application of natural justice the
same should be adhered to; that a person affected must have
reasonable opportunity of being heard and the hearing must be a
genuine hearing; that the doctrine of audi alteram partem is not
founded on a straitjacket formula and it can be modified in the
exigencies of the situation; that the doctrine of post-decisional
hearing can be invoked if a danger or a different situation is required
to be avoided; that a higher forum in certain circumstances can
afford adequate opportunity of hearing though in all cases post-
decisional hearing cannot be substituted for pre-decisional hearing;
that the hard realities of life are to be borne in mind and it would
depend upon the facts of the case; that the factum of prejudice that
has been caused is a factor to be taken note of; that there has to be a
pragmatic approach; and that sometimes the court may not interfere
and direct for a post-decisional hearing.
xxxx
30. ....The relief of enrolment or striking out of the name of a
person enrolled therein on the ground of his lacking in qualifications
conferring a right to be enrolled must be adjudicated in the manner
prescribed by the 1950 Act invoking the jurisdiction of the
authorities contemplated therein. We may hasten to add that in the
said case, the inclusion of a person or persons in the electoral roll by
the authority empowered in law to prepare the electoral roll, though
they are not qualified to be so enrolled, cannot be a ground for
setting aside the election of a returned candidate but the fact remains
that emphasis has been laid on the issue of enrolment and
preparation of electoral roll of any constituency and the obligations
of an authority. If these aspects are appreciated in a cumulative
manner, we are of the considered opinion that there has to be strict
compliance of Section 22 of the 1950 Act as the same takes away the
substantial right of a voter. The deletion or inclusion may not be a
ground to set aside the election but the competent authority under the
Act cannot be granted leverage to proceed in an arbitrary manner
without complying with the proviso to Section 22(c). It has a
statutory function to carry out and must understand the purity of
such a procedural aspect. Thus, adherence to the same, we are
inclined to think, is a must. The provision clearly lays a postulate
that the person concerned has to be afforded reasonable opportunity
of being heard in respect of the action proposed to be taken in
relation to him by the electoral registration officer. Therefore, the
doctrine of post-decisional hearing or hearing at the stage of appeal
would not meet the statutory requirement. Judged from both the
angles, the order is unsustainable. The deletion is unsustainable
because of procedural non-compliance. As has been held by the
Lordships in the authorities which we have referred hereinbefore, the
principles of natural justice may not be put in a straitjacket formula
and it may vary from statute to statute, situation to situation and case
to case. In our view, when there is a deletion under Section 22 in the
context of the statutory provision, considering the extent of
repercussion it can have in a democratic setup and its effect on the
right of a citizen to vote, pre-decisional hearing is imperative."
6. A perusal of the order dated 25.9.2009 passed on the appeal of Mr.
Arun Tyagi made under Section 24 of the Representation of People Act, 1950
would show that he was seeking restoration of not only his name but also
names of 841 other voters to the electoral roll. Considering that Mr. Arun
Tyagi was not only agitating his cause but also cause of present petitioners as
well, the petitioners cannot be accused of inaction or delay in approaching the
Court. They could be under a bonafide impression that in the event plea of
Mr. Arun Tyagi being allowed, not only his name but also their names shall
be restored on the electoral roll. Considering that on account of deletion of
their names from the electoral roll, the petitioners are deprived of a highly
valuable right to cast their votes in the elections, I am not inclined to reject the
plea of the petitioners on the ground that they did not approach the court
immediately on coming to know that their names had been deleted from the
electoral roll.
7. For the reasons stated hereinabove, the impugned orders, deleting the
names of the petitioners from the electoral roll of the Constituency Noi.68,
Gukul Pur, Delhi is hereby quashed. It is made clear that the Electoral
Registration Officer shall be at liberty to pass an appropriate fresh order after
giving an opportunity of hearing to the petitioners in terms of provisions of
Section 22-C of Representation of People Act, 1950.
The writ petition stands disposed of in terms of this order.
There shall be no orders as to costs.
OCTOBER 31, 2013/rd V.K. JAIN, J.
