Akhtar Hussain & Anr vs H. P. State Commission & Ors
2021 Latest Caselaw 70 HP

              IN THE HIGH COURT OF HIMACHAL PRADESH,
                              SHIMLA.




                                                                                   .
                                                  CWP No. 6427 of 2020





                                                  Decided on: 02.01.2021.





    Akhtar Hussain & Anr.                                                   ...Petitioners
                                         Versus
    H. P. State 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 Yes.

    For the Petitioners : Mr. Vishwa Bhushan, Advocate.

    For the Respondents : Mr. Ajit 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 their names in

the Voter List, the petitioners have filed the instant petition

for the grant of following substantive reliefs:-

(i) That the respondents be directed to revise the electoral roll of the gram panchayat Daand under Development Block Salooni and the names of the petitioner be included in the

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

voter list of the gram panchayat Daand under Development Block Salooni Chamba and the nomination of the petitioner for contesting panchayat election may also be ordered to be

.

accepted.

(ii) That impugned orders if any passed by the respondent which has not been supplied to the petitioners be also

quashed and set aside being in violation of the H.P. Panchayati Raj (Election) Rules.

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. Learned counsel for the petitioners submits that

the names of the petitioners were struck off from Gram

Panchayat Kihar, on 16.12.2020, to transfer the same to

the Gram Panchayat Daand. The petitioners submitted an

application for including their names in the voter list of

Gram Panchayat Daand under Development Block Salooni,

Chamba but their names were not included in the voter list.

7. These allegations of the petitioners are

vehemently opposed by the learned Advocate General, who

on the basis of instructions, states that on 26.12.2020

Panchayat Secretary of Gram Panchayat Daand had

.

submitted the claims of the petitioners to BDO Salooni but

during scrutiny, it was found that names of the petitioners

are still continuing in the Electoral Rolls of the Gram

Panchayat Kihar.

8. Rule 14 of the Himachal Pradesh Panchayati Raj

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

14. Disqualification for registration in electoral roll - A

person shall be disqualified for registration in an electoral

roll, if he-

(a) is not a citizen of India; or

(b) is of unsound mind and stands so declared by

competent court; or

(c) is for the time being disqualified for voting under the laws relating to corrupt practices and other offences in

connection with Panchayats/ Municipality/ Assembly/

Parliamentary elections; or

(d) is not ordinarily resident of the constituency; or

(e) is less than 18 years of age on the date as may be

notified by the State Election Commission for the preparation or revision, as the case may be, of the electoral rolls.

(f) is already registered as a voter in a Municipality or in some other Gram Sabha.

9. A bare perusal of the Rules make it clear that a

candidate contesting election of Gram Panchayat, he must

be voter and ordinarily the resident of the constituency of

the Gram Sabha.

.

10. More importantly, it has specifically come on

record that the petitioners do not have a residential

accommodation in the area and even the land which was

purchased by them was so purchased only on 16.12.2020

and thereafter attested on 18.12.2020 and therefore cannot

be considered to be ordinarily residents of Gram Panchayat

Daand.

11. The Hon'ble Supreme Court in Union of India

vs. Dudh Nath Prasad (2000) 2 SCC 20, found that the

parents of the respondent's admittedly residing in District

Howrah in West Bengal for more than 30 years, they would

be ordinarily treated to be residing in that District and as a

matter of fact that they owned some property in District

Siwan in the State of Bihar would not effect the status. It

would be apposite to reproduce paras 13, 14 and 15 of the

judgment, which read as under:-

13.Section 20 which is part of the law enacted for purpose of election to Parliament or State Legislature contemplates many categories of persons including those who are in service. It lays down as to when they would be treated to be ordinarily residing in a particular constituency. Sub-section (1) and sub-section (1A) of

Section 20 are couched in a negative language. Sub-

section (1) of Section 20 provides that if a person holds or is in possession of a dwelling house in a particular

.

constituency, he would not, merely on that ground, be

deemed to be "ordinarily resident" in that consti-tutency. Sub-section (1A) provides that temporary absence of a

person from the place of his "ordinary residence," would be ineffective and a person would not cease to be an "ordinary resident" in that constituency merely for that reason. Thus, in determining the question whether person

was ordinarily residing in a particular constituency, the factors mentioned in sub-section (1) and sub-section (1A) of Section 20 alone would not be determinative of the

status and the question would have to be determined on

a consideration of all other relevant factors. This is also clear from a reading of sub-section (7) of Section 20 which lays down that if a question arises as to whether a person was ordinarily residing in any constituency at the

relevant time it would be determined with reference to all the facts of the case as also with reference to the Rules

that may have been made in that behalf by the Central Govt. in consultation with the Election Commissioner.

14. The word "reside" has been defined in the Oxford Dictionary as "dwell permanently or for a considerable time to have once settled or usual abode; to live in or at a

particular place." The meaning, therefore, covers not only the place where the person has a permanent residence but also the place where the person has resided for a "considerable time."

15. In Black's Law Dictionary, 5th Edition, the word "reside" has been given the following meaning:

"Live dwell, abide, sojourn, stay, remain, lodge; to settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to

have one's residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as a quality, to be vested as

.

a right."

In the same Dictionary the word 'residence' has been

defined as under:

"Personal presence at some place of abode with no present intention of definite and early removal and with purpose to remain for undetermined period, not

infrequently, but not necessarily combined with design to stay permanently. Bodily presence and the intention of remaining in a place, to sit down, to settle in a place, to settle, to remain, and is made up

of fact and intention, the fact of abode and the

intention of remaining, and is a combination of acts and intention. Residence implied something more than mere physical presence and something (sic)

than domicile."

12. The Hon'ble Supreme Court in Bhagwan Dass

and Another vs. Kamal Abrol and others (2005) 11

SCC 66, while considering the meaning of 'Residence' has

held that it can define as one who resides in a place or one

who dwells in a place for a considerable period of time as

distinguished from one who merely works in a certain

locality or comes casually for a visit are different from the

place of 'residence'. It would be apposite to reproduce para-

12 of the judgment, which reads as under:-

12. In the present case, the necessary eligibility criterion requires the applicant to be a resident of Kangra district. The

advertisement inviting the applications has not defined the same and hence it would be necessary to see the intention of the framers of the eligibility criteria to understand the

.

true meaning or the sense for which the word 'resident' is

used or as to why the criteria of resident is put as an eligibility criteria for allotment of LPG. In the present case

the intention of the framers appears to be to provide employment or source of earning for the residents of the Kangra district in the form of LPG dealership/ distributorship. The eligibility criterion requires the person to be a resident

of Kangra district only in the actual sense and not in any other sense. What is required to fulfill the eligibility criteria of the residence is that the person should be a de facto residence and not to have the mere connection with the

place on account of her husband having some personal and

ancestral property in Kangra. There is no finding recorded by the court that the husband of respondent no 1 is permanently residing at Kangra or has permanent abode in

Kangra. From the finding arrived at by the High Court it can be said that her husband having ancestral property in Kangra is a visitor to that place and occasionally resides

there for a few days. Respondent no. 1 prima facie appears to be a permanent resident of Mandi, since her name

appears in the voter's list of Mandi and that she has been drawing her ration from Mandi as per the case set up by the appellants. It is further clear that the intention of providing

employment and source of earning to the residents of the place would be fulfilled only if the person is actually living in Kangra and not by his/her remote connection to the place. It may also be seen that another eligibility criteria is that the person should not be a partner or having any dealership or distributorship agency in any petroleum company and, therefore, the dealership/distributorship has to be allotted to the person who does not hold any other dealership/distributorship agency of any other petroleum company. This term indicates that the corporation wants that the dealership at a particular place have to be handled by

that person, which would necessarily require the personal presence of that person at the place of business. The notice of intent issued to the respondent no. 1 on March 3,1988

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further clarifies this requirement when it says that the dealer

is to be a full time working dealer which necessitates the permanent residence at a place for which the dealership

license is given. When the agency requires full time working dealer it would be only possible if the person actually resides in Kangra district and not working through agent or servants engaged for the said purpose. This further indicates that the

dealer is required to he a de facto resident of the place from where the dealership license is to be issued and it is not permissible to have casual connection or temporary residence at that place.

13. 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.

14. 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.

15. In the instant case, the election process has

already begun and final voter list has also been published,

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therefore, entertaining this petition at this stage would

amount to obstructing the election process, which is not

permissible.

16. 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.

17. 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.

18. 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)
          2nd January, 2021                            Judge
              (sanjeev)