Basti Ram vs H.P. State Election Commission & ...
2021 Latest Caselaw 171 HP

              IN THE HIGH COURT OF HIMACHAL PRADESH,
                              SHIMLA.




                                                                                   .
                                                  CWP No. 69 of 2021





                                                  Decided on: 05.01.2021.





    Basti Ram                                                               ...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.
                                            No.
    Whether approved for reporting? 1
    For the Petitioner
                               r         : Mr. B. Nandan Vashisht, 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.





                                         Mr. V. D. Khidtta, Advocate, for
                                         respondents No. 7, 12 and 19.





                                         (Through video conferencing)

    Tarlok Singh Chauhan, Judge (Oral)

Aggrieved by the inclusion of the names of

respondents No. 7 to 28 in the Voter List, the petitioner has

filed the instant petition for the grant of following

substantive reliefs:-

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

(i) To issue directions to respondents No. 2 to 6 to delete the names of the respondents No. 7 to 28 from the Parivar Register of Gram Panchayat Drabil as it has been illegally

.

transferred from Gram Panchayat Shirikyari and entered in

the Parivar Register of Gram PanchayatDrabil in utter and fragrant violation of Rule 21 of the H.P. Panchayati Raj

(General) Rules, 1997 without following any prescribed procedure under and this fact has already been brought to the knowledge of respondents No. 2 to 6 by the petitioner well in time through his complaint vide Annexure P-1 (Colly)

which are not decided till date.,

(ii) In view of relief at (I) above, issue directions to respondents No. 1 and 2 to delete the names of the respondents No. 7 to 28 from the voter list of the Gram

Panchayat Drabil by processing the deletion forms (Form No.

18 Annexure P-9) submitted by the petitioner under prescribed procedure incorporate the names of respondents No. 7 to 28 in the Shirikyari Panchayt to which they are the

bonafide residents as per revenue report vide Annexure P-5 & P-6.

(iii) That issue directions to respondents No. 2 and 4 to take

immediate necessary action against the respondent No. 6 for violating Rule 21 of the H.P. Panchayati Raj Rules

(General), 1997 while illegally and unlawfully entering the names of respondents No. 7 to 28 in the Parivar Register of Gram Panchayat Drabil.

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 remedy is

provided to an aggrieved person under Rules 18 to 20 of

the Himachal Pradesh Panchayati Raj (Election) Rules, 1994,

when a person who has objection to the inclusion of any

name in the electoral roll.

5. Rules 18 to 20 of the Himachal Pradesh

Panchayati Raj (Election) Rules, 1994, reads as under:-

18. Manner of lodging of claims and objections.- (1) A claim or objection shall be addressed to the Revising Authority specified in the notice referred to in rule 15 and shall be presented to him personally or sent by registered

post to that authority. Every claim for inclusion of names, objection in relation to the inclusion of the name or objection in relation to the particulars in an entry shall be in

.

Form 2, 3, 4 respectively.

(2) A claim shall be signed by the person desiring his name to be included in the electoral roll and countersigned by

another person whose name is already included in the electoral roll in which the claimant desires his name to be included and shall, unless sent by post, be presented by claimant himself or by a person authorised by him in writing

in this behalf.

(3) No person shall prefer an objection to the inclusion of any name in the electoral roll unless his name is already included in that electoral roll.

(4) The Revising Authority shall maintain a register, of claims

in Form-5, of objections to the inclusion of names, in Form-6, and of objection to the particular in any entry in Form-7, and cause to be entered therein the time of their receipt,

particulars of every claim or objections, as the case may be. (5) Any claim or objection, which is not lodged within the prescribed period or in the manner herein specified shall be

rejected and the decision recorded in the register prepared in Form-5, 6 and 7, as the case may be.

19. Notice of claims and objections. - (1) Where a claim or objection is not rejected under sub-rule (5) of rule 18, the

Revising Authority shall, after the period prescribed for the presentation of claims and objections has expired, exhibit on the notice board of the office of Gram Panchayat, Panchayat Samiti and Zila Parishad, a list of all claims or objections in Form-8, 9 and 10 as the case may be.

(2) Every claimant/objector to the inclusion of a name or to the correctness of certain particulars in an entry shall be given a notice of place, date and time of hearing of such claim or objection and shall further be asked to adduce such

evidence as he may like to adduce in Form-11, 12 and 13 as the case may be.

(3) A person against whom objection has been received by

.

the Revising Authority for the inclusion or deletion of his

name on or from the electoral roll shall also be given a notice in Form- 14 of the place, date and time fixed for

hearing of objection, at his last known place of residence and be asked to adduce such evidence as he may like to adduce for his defence.

20. Disposal of claims and objections.- (1) On the date,

time and at the place fixed under the provisions of rule 19, the Revising Authority shall hear and decide the claims and objections under the provisions of these rules and shall

record his decision in the register in Form-5, 6 and 7, as the

case may be.

(2) The copy of the order of the Revising Authority shall be given to the claimant or objector immediately on demand on payment of rupees two against cash receipt.

(3) Any person aggrieved by an order passed under the provisions of sub-rule (1) may, within seven days from the date of the order, file an appeal to the District Election

Officer (Panchayats) who shall, as far as practicable be,

within a week, decide the same, confirming such order, or setting it aside or passing such other order with respect to the claim and objection as he may deem fit:

(4) If it appears to the District Election Officer (Panchayats) that due to inadvertence and error during the preparation of electoral rolls, names of electors have been left out of the electoral roll, the names of dead persons or of persons who ceased to be or are not ordinarily resident in the constituency have been included in the electoral roll and that remedial action should be taken under this sub-rule, the District Election Officer (Panchayats) shall-,

(a) prepare a list of the names and other particulars of such electors;

(b) exhibit on the notice board of his office and offices of the Gram Panchayat, Panchayat Samiti and Zila Parishad, a copy of the list together with a notice as to the date(s) and

.

place(s) at which the question of inclusion of the names in

electoral roll or the deletion of the names, from the electoral roll will be considered; and

(c) after considering any verbal or written objection which may be preferred, decide whether all or any of the names should be included in or deleted from the electoral roll.

6. However, learned counsel for the petitioner

would argue that he had availed all the remedy by filing

objections but the same had not been considered much less

decided in consonance with law.

7. These allegations of the petitioner are

vehemently opposed by the learned Advocate General on

the basis of the instructions dated 31.12.2020, received

from the office of the District Panchayat Officer, Sirmaur. It

is clearly stated therein that the objections were received

on 23.12.2020 from the petitioner and for the purpose of

obtaining accurate report, the Panchayat Secretary, Drabil

was summoned in the office and he reported that all these

persons were already present in Gram Panchayat Drabil and

their Ration Cards are also of the same Panchayat.

8. Confronted with this, the learned counsel for the

petitioner would still argue that the entire exercise of a

camouflage has been done just to enabling the private

respondents to register as voter, so as to adversely affect

.

the chances of the success of the petitioner, who is a strong

candidate, for the post of Pradhan in the forthcoming

Panchayat election.

We find no merit in this contention as the same

is totally far fetched.

9. 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.

10. 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.

.

11. 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.

12. 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.

13. 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.

14. The present petition filed after commencement

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

election, therefore, cannot be entertained. In case, the

petitioner contest the election and lose, then he has an

alternate efficacious remedy of filing an election petition

wherein he takes all the objections that are raised in this

.

petition.

15. 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) 5 January, 2021 th Judge (sanjeev)