Arun Kashyap vs State Of H.P. & Ors
2021 Latest Caselaw 6 HP

              IN THE HIGH COURT OF HIMACHAL PRADESH,
                              SHIMLA.




                                                                                   .
                                                  CWP No. 6420 of 2020





                                                  Decided on: 01.01.2021.





    Arun Kashyap                                                            ...Petitioner
                                         Versus
    State of H.P. & 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. H. S. Rana & Mr. Amrinder Singh

                                         Rana, Advocates.

    For the Respondents : 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 the name of the petitioner may kindly be added in the final Voter List of Panchayat Katli in the interest of justice and fair play.

(ii) That the petitioner may kindly be allowed to contest the election for the post of Pardhan of Panchayat Katli and

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

respondents may also be directed to accept/consider the nomination of the petitioner for election.

.

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.

7. These allegations of the petitioner are

vehemently opposed by the learned Advocate General, on

the basis of instructions imparted vide letter dated

31.12.2020, received from the office of District Panchayat

Officers, Sirmuar, relevant portion whereof reads as under:-

"1. the updating of electoral rolls is carried out as per Rule 12 to 27 of the Himachal Pradesh Panchayati Raj (Election) Rules 1994. The programme for placing draft electoral rolls for perusal vide State Election Commission letter 2086-97 dt. 16.09.2020 in special meeting at Panchayat level on 21.09.2020 was forwarded to all BDOs on 17.09.2020.

2. It is pertinent to mention that draft publication of electoral rolls was carried out on 03.10.2020, press note about which had already been released on 1.10.2020. These rolls were

.

kept for revision from 05.10.2020 to 14.10.2020.

3. Moreover, upon perusal of the final panchayat electoral roll for the same for the year 2015 (Annexure A1[1 page], it

was found that the name of the petitioner was nowhere to be found whereas the rest of the family of the same is as is in the final panchayat electoral roll of 2020.

4. Further, inclusion of name of said voter in supplementary

voter list was not a feasibility since the voter wrote to the undersigned on the 24th December, 2020 while as per Rule 24 the last date had elapsed on 23rd December 2020 for the same. Hence, you are requested to kindly apprise the

Hon'ble High Court when the case is listed.

8. Confronted with this, the learned counsel for the

petitioner would still argue that no such exercise as stated

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 placed 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)
          1st January, 2021                            Judge
              (sanjeev)