Himachal Pradesh High Court

Decided On: 7Th January vs ________________________________________________________ on 7 January, 2021

Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 11 of 2021.

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Reserved on: 05.01.2021

Decided on: 7th January, 2021
________________________________________________________
Anita

....Petitioner

Versus

State of Himachal Pradesh and others

________________________________________________________
Coram
r ...Respondents

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge

1 Whether approved for reporting? No.

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For the petitioner: Mr. Manik Sethi and Mr.Neeraj
Kumar Shashwat, Advocates.

For the respondents: Mr. Ashok Sharma, Advocate

General, with Mr. Vinod Thakur,
Mr. Vikas Rathor Additional
Advocates General, Ms. Seema
Sharma, Mr. Bhupinder Thakur and

Mr. Yudhvir Singh Thakur, Deputy
Advocates General, for respondents
No. 1,3,4 and 5-State.
Mr. Ajeet Singh Saklani, Advocate,
for respondent No.2.
Through Video Conferencing

1 Whether reporters of Local Papers may be allowed to see the judgment?

::: Downloaded on - 08/01/2021 20:15:56 :::HCHP
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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:-

"a) That the respondent may kindly be directed to enroll the name of petitioner into the electoral list with immediate effect"

b) That the petitioner may be given opportunity to file her nomination" .

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

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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 subrule (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.

7. These allegations of the petitioner are

vehemently opposed by the learned Advocate General, on

the basis of instructions dated 2.1.2021 received from the

office of District Election Officer (Panchayats) Shimla, H.P.,

the relevant portion whereof reads as under:-

"1 That the draft publication of electoral rolls of various Gram Panchayats (GPs) of the District, along with Gram Panchayat Devla, Development Block Basantpur was done on 3rd

October, 2020 and claims and objections were to be received by the revising Authority (BDO Basantpur) w.e.f 05th October, 2020 to 14th October, 2020. During this period 91 persons

have applied for addition their names in the voter list which has been added accordingly in the voter list. The said draft

was published in Zila Parishad/Panchayat Samiti/Office of Gram panchayats (G.Ps) concerned. The electoral roll was

finally published on 5th November,2020.

2. That it appears from the content of the petition that the petitioner has not applied for addition her name neither in the aforesaid period before the revising authority nor before District Election Officer before the last date as prescribed under rule 24 of H.P. Panchayati Raj (Election) Rules,1994, i.e. nine days before the last date for filling of nomination papers. Hence she is not entitled to register his name in the

electoral roll of Gram Panchayat Devla, Development Block Basantpur."

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.

9. We find no merit in the said contention.

Moreover, the petitioner has never applied for addition of

his name in the Voter List in the aforesaid period before the

competent authorities.

10. 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).

11. The wise principle of presumption which is also

recognized 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.

12. 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.

13. 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.

14. 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.

15. 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 process of election and

facilitates the completion thereof.

16. 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.

17. Learned Counsel for the petitioner argues that

leaving set aside the other issues raised in this petition , it

is high time that the respondents upload the draft and

Electoral rolls on its official website that too in the public

domain without being password protected so that instead

of leaving the voters/ interested candidates at the mercy of

the Panchayat Secretary or any other officer, such Electoral

rolls can be inspected on a click of button.

18. The argument is well founded and we would

even proceed to pass directions to this effect, but in

view of the instructions supplied to the learned Standing

Counsel for the Election Commission by the Secretary,

State Election Commission, such directions would not be

necessary as it is clearly stipulated in these instructions,

which read as under:-

"1. The State Election Commission publishes the draft of the electoral rolls under Rule 15 of the HP Panchayati Raj

(Election) Rules, 1994 for inviting claims and objections of the general public.

2. The copies of the draft rolls are made available for the

inspection of the general public at the office of District

Election Officer, Gram Panchyat, Panchyat Samiti and Zila Parishad.

3. The draft electoral rolls is also available in the website of

the State Election Commission for general public.

4. Any person from the general public can view search his name in the draft electoral rolls on the web site of the

Commission.

5. The State Election Commission also published the public

notice on dated 03rd, 04th, 05th,06th,07th,12th, 13thOctober,2020and 12th,13th,16th November, 2020 in three

Hindi and two English news papers.

6. The State Election Commission officals also participated in phone in programme on Akashwani Shimla two times in the month of October and November.

7. After the receipt of claims and objections the revising authority appointed under rule 17 decides the claims and objections and the entries are made in the electoral rolls by the Panchayat User in accordance with the orders passed

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by the revising authority.

8. Any person aggrieved by the order passed by the revising authority can file his appeal before the District Election

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Officer (P)-cum-Deputy Commissioner. The order passed by the appellate authority are given effect by the Panchyat User in pursuance of the orders.

9. Thereafter the electoral rolls in finally published at the office of District Election Officer, Gram Panchyat at Samiti and Zila Parishad for the general public.

10. The firstly published electoral is made available on the web

site of the commission.

11. After the final publication of the electoral roll an application for inclusion of name can be submitted in the District

Election Officer (P) accompanied a fee of Rs.2/-."

19. 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) Judge January 7th, 2021 (Gaurav)