Aakash Chandel vs H.P. State Election Commission & ...
2021 Latest Caselaw 10 HP

              IN THE HIGH COURT OF HIMACHAL PRADESH,
                              SHIMLA.




                                                                                   .
                                                  CWP No. 6437 of 2020





                                                  Decided on: 01.01.2021.





    Aakash Chandel                                                          ...Petitioner
                                         Versus
    H.P. State Election Commission & Ors. ...Respondents
    _____________________________________________________________
    Coram:




    Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
    Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
    Whether approved for reporting? 1 No.

    For the Petitioner :                 Mr. Naresh K. Sharma, Advocate.

    For the Respondents : Mr. Ajeet Saklani, Advocate, for State
                       Election Commission.


                                         Mr. Ashok Sharma, A.G. with Mr.
                                         Vinod Thakur, Mr. Shiv Pal Manhans,
                                         Addl. A.Gs., Mr. Bhupinder Thakur, Ms.
                                         Seema Sharma and Mr. Yudhvir Singh




                                         Thakur, Dy. A.Gs., for respondents-
                                         State.





                                         (Through video conferencing)





    Tarlok Singh Chauhan, Judge (Oral)

Aggrieved by the non-inclusion of his name in

the Voter List, the petitioner has filed the instant petition for

the grant of following substantive reliefs:-

(i) That writ of mandamus may kindly be issued, directing the respondents to include the nam e of the petitioner in the voter list of Gram Panchayat Behna Jattan, Tehsil

Whether reporters of the local papers may be allowed to see the judgment? yes

Jhanduta, District Bilaspur, H.P., so as to enable the petitioner to cast his vote and contest the election of Block Development committee (BDC) Member from the Gram

.

Panchayat Behna Jattan, Tehsil Jhanduta, District Bilaspur,

H.P., since the petitioner is permanent resident of the aforesaid Gram Panchayat and he is casting his vote for the

Parliament, Vidhan Sabha and Gram Panchayat elections as per earlier record.

(ii) That writ of mandamus may very kindly be issued, directing the respondents to take action as warranted under

the law against the erring officers/officials for wrongly and illegally deleting the name of the petitioner from the Voter List. r

2. It is well settled proposition of law that inclusion

or exclusion of name in the Voter List cannot be termed as

an extraordinary circumstance warranting interference of

the High Court in exercise of the jurisdiction under Article

226 of the Constitution. However, it is always open to a

person whose name is not included in the Voter List to avail

the benefit by filing election petition as the authorities

constituted have wide powers to cancel, confirm and

amend the election and it can also direct to hold fresh

election, in case, the election is eventually set aside.

3. No doubt, in extraordinary and exceptional

circumstances, the High Court can entertain writ petition

under Article 226 of the Constitution where the order is

ultra vires or nullity and/or ex facie without jurisdiction. The

exclusion or inclusion of name in the Voter List cannot be

termed as extraordinary circumstance warranting

.

interference by the Court under Article 226 of the

Constitution and such question at best are to be decided in

election petition.

4. In addition to the above, a specific and time

bound remedy is provided to an aggrieved person under

Rule 24 of the Himachal Pradesh Panchayati Raj (Elections)

Rules, 1994, when a person name is not included in the

electoral roll.

5. Rule 24 of the Himachal Pradesh Panchayati Raj

(Elections) Rules, 1994, reads as under:-

24. Inclusion of names in the electoral roll, finally

published.- (1) Any person, whose name is not included in the electoral roll shall make an application, in Form-2 (in

duplicate), to the District Election Officer (Panchayats) for inclusion of his name in that electoral roll, and such application shall be accompanied by a fee of rupees two

to be paid in cash against receipt.

(2) District Election Officer (Panchayats) shall immediately on receipt of application under sub-rule (1) direct that one copy thereof be pasted in some conspicuous place in his office together with a notice inviting objections to such application within a period of four days from the date of such pasting.

(3) The District Election Officer (Panchayats) shall as may be, after the expiry of the period specified in the notice under sub-rule (2), consider the objections, if any,

received by him and shall, if satisfied that the applicants entitled to be registered in the electoral roll, direct such name to be included therein within a period of 3 days:

.

Provided that if the applicant whose name is ordered to

be included is already registered in the electoral roll of any other constituency of the same Gram Sabha or

another Gram Sabha or a Municipality, such a name shall be deleted from that electoral roll:

Provided further that an application under this rule at any

time after publication of the election programme under rule 32 shall be made to the District Election Officer (Panchayats) not later than 9 days before the last date fixed for the filing of nomination papers:

Provided further that no amendment or transposition or deletion of any entry shall be made on or after the last date for making nomination till the election process is

over.

(4) Where an application made under sub-rule (1), is

rejected, an appeal shall be within a period of ten days from the date of rejection of the application for the

inclusion of names to the State Election Commission, whose decision shall be final.(5) Every appeal under sub- rule (4) shall be accompanied by a fee of twenty rupees to

be paid in cash against receipts.

6. However, learned counsel for the petitioner

would argue that since the provisional electoral rolls were

neither published nor notified or kept in the Panchayat Ghar

as per the Rules, therefore, he had no occasion or chance to

avail of the remedy as provided under Rule 24. Learned

counsel for the petitioner further submits that the petitioner

has made representation to the authorities but the

.

respondents have showed their inability to redress the

grievance.

7. These allegations of the petitioner are

vehemently opposed by the learned Advocate General, who

on the basis of instructions, states that the draft Voter List

in the instant case was published on 03.10.2020 and the

same was kept for inspection in the Panchayat Ghar from

05.10.2020 to 14.10.2020 and after considering all the

formalities like objections etc., the same was finally

published on 05.11.2020. The representation of the

petitioner was not entertained as the same was made on

30.12.2020, as the last date for inclusion of the name in

supplementary voter list had elapsed on 23 rd December,

2020.

8. Confronted with this, the learned counsel for the

petitioner would still argue that no such exercise as stated

by the learned Advocate General was ever undertaken by

the Department, but we find no merit in the said

contention.

9. Sections 35 and 114(e) of the Evidence Act

declare that there was always presumption of regularity of

.

an official act. Of course, such presumption is rebuttable

presumption. (See: Jagjit Singh vs. State of Haryana

(2006) 11 SCC 1).

10. The wise principle of presumption which is also

recognised by the legislature, is that judicial and official

acts are regularly performed. The presumption is based on

the legal maxim omnia praesumuntur rite it dowee

probetur in contrarium solemniter esse acta i.e. all the acts

are presumed to have been done rightly and regularly,

applies. When acts are of official nature and went through

the process of scrutiny by official persons, a presumption

arises that the said acts have regularly been performed.

The learned counsel for the petitioner has

miserably failed to rebut the presumption.

11. Lastly and more importantly, it is also axiomatic

that normally the High Court exercising jurisdiction under

Article 226 of the Constitution of India should not interfere

with the process of election once the same has already

commenced.

12. Reference in this regard can conveniently be

made to the judgments of the Hon'ble Supreme Court in

.

Nanhoo Mal and others vs. Hiramal & Ors., (1976) 3

SCC 211, Shri Sant Sadguru Janardan Swami vs.

State of Maharashtra and Ors, 2001 (8) SCC 509 and

Election Commission of India vs. Ashok Kumar &

Ors., 2000 (8) SCC 216.

13. In the instant case, the election process has

already begun and final voter list has also been published,

therefore, entertaining this petition at this stage would

amount to obstructing the election process, which is not

permissible.

14. It is more than settled that Court in exercise of

its writ jurisdiction can interfere in the matters relating to

election only if it subserves the progress of election and

facilitates the completion thereof.

15. The present petition filed after commencement

of the election process, that too, with a view to stall

election, therefore, cannot be entertained, when the

petitioner has an alternate efficacious remedy of filing an

election petition under Rules.

16. In view of the aforesaid discussion, we find no

merit in this petition and the same is accordingly dismissed.

.

Pending application(s), if any, also stands disposed of.

Parties are left to bear their own costs.

(Tarlok Singh Chauhan) Judge

(Jyotsna Rewal Dua) 1 January, 2021 st Judge (sanjeev) r