Basti Ram vs H.P. State Election Commission & Ors

Tarlok Singh Chauhan, J

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:-

(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.

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.

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.

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.

Rules 18 to 20 of the Himachal Pradesh Panchayati Raj (Election) Rules, 1994, reads as under:-

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.

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.

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.

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.

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.

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.

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.

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.

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 50 9and Election Commission of India

vs. Ashok Kumar & Ors., 2000 (8) SCC 216.

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.

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.

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.

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.